IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                    ________________________
                                
                        No. 03-11405-GG
                    ________________________

GLENN J. CONROY,

     Plaintiff-Appellant,

     v.

ABRAHAM CHEVROLET-TAMPA, INC.,
     d/b/a AUTOWAY CHEVROLET,

     Defendant-Appellee.
       __________________________________________________
                                
        On Appeal from the United States District Court
       for the Middle District of Florida, Tampa Division
          The Honorable Joseph H. Rodriguez, Presiding
                 Civil No. 8:01-CV-1466-T-27MAP
       __________________________________________________
                                
        BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY 
                  COMMISSION AS AMICUS CURIAE
       ON BEHALF OF APPELLANT AND IN SUPPORT OF REVERSAL
       __________________________________________________

                              JAMES L. LEE
                              Deputy General Counsel

                              CAROLYN L. WHEELER
                              Acting Associate General Counsel

                              LORRAINE C. DAVIS
                              Assistant General Counsel

                              SUSAN R. OXFORD, Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY COMM.
                              1801 L Street, N.W.
                              Washington, D.C.   20507
                              Tel. (202) 663-4791
                              Fax. (202) 663-7090
Conroy v. Abraham Chevrolet- Tampa, Inc.               C-1 of 1
No. 03-11405-GG

             CERTIFICATE OF INTERESTED PERSONS AND
                 CORPORATE DISCLOSURE STATEMENT

     Amicus Curiae U.S. Equal Employment Opportunity Commission
submits this list, pursuant to 11th Cir. Rule 26.1, which includes
trial judges, attorneys, and other persons and corporations who are
known to have an interest in the outcome of this appeal:

Abraham Chevrolet-Tampa, Inc. d/b/a Autoway Chevrolet
Craig L. Berman, Esq., Counsel for Plaintiff-Appellant
Shannon Carlyle, Esq., Counsel for Appellant
Glenn J. Conroy, Plaintiff-Appellant
John G. Crabtree, Esq., Counsel for Appellant
Lorraine C. Davis, Assistant General Counsel, EEOC
John R. Hamilton, Esq., Counsel for Appellee
Bradley R. Johnson, Esq., Counsel for Defendant-Appellee
James L. Lee, Deputy General Counsel, EEOC
Susan R. Oxford, Attorney, EEOC
The Honorable Joseph H. Rodriguez, U.S.D.J. 
David J. Sockol, Esq., Counsel for Plaintiff-Appellant
Raul Valles, Jr., Esq., Counsel for Defendant-Appellee
Carolyn L. Wheeler, Acting Associate General Counsel, EEOC
The Honorable James Whittemore, U.S.D.J.
                              _____________________________
                              Susan R. Oxford                    
TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND 
  CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . .  C-1

TABLE OF CONTENTS  . . . . . . . . . . . . . . . . . . . .    i

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . .   ii

STATEMENT OF INTEREST  . . . . . . . . . . . . . . . . . .    1
                     
STATEMENT OF THE CASE  . . . . . . . . . . . . . . . . . .    2

  A.  Nature of the Case and Course of Proceedings . . . .    2

  B.  Statement of Facts . . . . . . . . . . . . . . . . .    3

  C.  Disposition Below  . . . . . . . . . . . . . . . . .   11 

  D.  Standard of Review . . . . . . . . . . . . . . . . .   12

SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . . .   13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . .   14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .   26

CERTIFICATE OF COMPLIANCE  . . . . . . . . . . . . . . . .   27

CERTIFICATE OF SERVICE

                      TABLE OF AUTHORITIES
                                
CASES                                                       page

*  Bateman v. Mnemonics, Inc., 
     79 F.3d 1532 (11th Cir. 1996) . . . . . . . . . . .   12, 26

*  Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir.), 
     cert. denied, 513 U.S. 876 (1994)  . . . . . . . .   17, 23

   Combs v. Plantation Patterns, 106 F.3d 1519 
     (11th Cir. 1997), cert. denied sub nom., 
     Combs v. Meadowcraft Co., 522 U.S. 1045 (1998) . 16, 17, 23 

   Dennis v. Columbia Colleton Medical Center, Inc., 
     290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . .      17

   Fisher v. Vassar College, 
     114 F.3d 1332 (2d Cir. 1997)(en banc) . . . . . . . .    15

   Fite v. Digital Equip. Corp., 232 F.3d 3 (1st Cir. 2000)    25

   Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994) . .  24, 25
                                                  
   Gillins v. Berkeley Elec. Coop., Inc., 
     148 F.3d 413 (4th Cir. 1998) . . . . . . . . . . . . .    15

   Marcantel v. Louisiana Dept of Transp. & Devel., 
     37 F.3d 197 (5th Cir. 1994)  . . . . . . . . . . . . .    15

   McDonnell Douglas Corp. v. Green, 
     411 U.S. 792 (1973) . . . . . . . . . . . . . . . . .     3

   McKennon v. Nashville Banner Pub. Co., 
     513 U.S. 352 (1995) . . . . . . . . . . . . . . . . .     1

   Moore v. Robertson Fire Prot. Dist., 
     249 F.3d 786 (8th Cir. 2001) . . . . . . . . . . . . .    25
                         
*  Palmer v. Bd. of Regents of the Univ. Sys. of Georgia, 
     208 F.3d 969 (11th Cir. 2000) . . . . . . . . . . .   passim

CASES (cont'd)                                              page

*  Ratliff v. City of Gainesville, Tex., 
     256 F.3d 355 (5th Cir. 2001) . . . . . . . . . .  17, 21, 23

*  Reeves v. Sanderson Plumbing Products, Inc., 
     530 U.S. 133 (2000) . . . . . . . . . . . .  14, 15, 19, 23

   Roberts & Schaefer Co. v. Hardaway Co., 
     152 F.3d 1283 (11th Cir. 1998) . . . . . . . . . . .      13

*  Smith v. Borough of Wilkinsburg, 
     147 F.3d 272 (3d Cir. 1998) . . . . . . . . . . . .  passim

   St. Mary's Honor Ctr. v. Hicks, 
     509 U.S. 502 (1993) . . . . . . . . . . . . . . . .      14

*  Townsend v. Kemper Nat'l Ins. Cos., 
     294 F.3d 1232 (10th Cir. 2002) . . . . . . . . . . .  passim

   U.S. Postal Service Bd. of Governors v. Aikens, 
     460 U.S. 711 (1983) . . . . . . . . . . . . . . . .      14

   Woods v. Friction Materials, Inc., 
     30 F.3d 255 (1st Cir. 1994)  . . . . . . . . . . . .     15  

STATUTES

Age Discrimination in Employment Act (ADEA), 
     29 U.S.C. 621 et. seq.  . . . . . . . . . . . . .   1, 2             

		IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                    ________________________
                                
                        No. 03-11405-GG
                    ________________________

GLENN J. CONROY,

     Plaintiff-Appellant,

     v.

ABRAHAM CHEVROLET-TAMPA, INC.,
     d/b/a AUTOWAY CHEVROLET,

     Defendant-Appellee.

       __________________________________________________
                                
        On Appeal from the United States District Court
       for the Middle District of Florida, Tampa Division
          The Honorable Joseph H. Rodriguez, Presiding
                 Civil No. 8:01-CV-1466-T-27MAP
       __________________________________________________
                                
        BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY 
                  COMMISSION AS AMICUS CURIAE
       ON BEHALF OF APPELLANT AND IN SUPPORT OF REVERSAL
       __________________________________________________

                     STATEMENT OF INTEREST

     The U.S. Equal Employment Opportunity Commission is the agency
charged by Congress with the administration, interpretation and
enforcement of the Age Discrimination in Employment Act (ADEA), 29
U.S.C. 621 et. seq., and other federal laws prohibiting
employment discrimination.  Private actions such as this play a
significant role in the enforcement of the ADEA.  See McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 358-59 (1995).  This
appeal raises an important issue concerning the proper jury
instructions in a case where an individual plaintiff seeks to
establish by indirect proof that his employer took adverse
employment actions against him because of his age.  The Commission
submits that, in order to ensure plaintiffs are not deprived of the
benefit of an important method of proof, courts should properly
instruct juries, in cases such as this, that they may find the
defendant discriminated against the plaintiff if they disbelieve
the defendant's explanation for its actions.  Accordingly, we offer
our views to the Court.
                     STATEMENT OF THE CASE
A.  Nature of the Case and Course of Proceedings
     This is an appeal from the district court's denial of
Plaintiff Glenn Conroy's motion for a new trial based on the
court's failure to give Conroy's requested jury instructions on
"pretext."  Conroy filed this action against his former employer,
Abraham Chevrolet, under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. 621 et seq., alleging he was discharged
because of his age and in retaliation for refusing to fire another
older worker.  R.1.  To prove his ADEA claim, Conroy relied,
primarily, on the indirect form of proof recognized by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 
The district court refused Conroy's request that the jury be
instructed it could infer a discriminatory motive on the part of
Abraham Chevrolet if it disbelieved the former employer's
explanation for firing Conroy.  R.67 at 56-13 to 58-17, 171-10 to
21.  At the close of the three-day trial, the jury ruled in favor
of Defendant Abraham Chevrolet.  R.51.  Conroy moved for a new
trial based, in part, on the district court's failure to instruct
the jury on "pretext."  R.53.  The district court denied Conroy's
motion, R.59, and this appeal followed.  R.60.
B.  Statement of Facts
     When Plaintiff Glenn Conroy was fired from his position as
commercial sales manager for Abraham Chevrolet in January 2001, he
was 54 years old and had a decade of experience in commercial sales
for General Motors (GM) dealerships in the area.  R.66 at 34-19 to
36-17.  He was discharged by the new General Manager, William
Bledsoe, who had arrived at the dealership approximately three
months earlier.  Id. at 131-18 to 22.  Conroy states that shortly
before he was discharged, Bledsoe twice directed him to fire Dick
Weber, the commercial salesman in charge of "fleet" sales, to whom
Bledsoe referred as an "old-geezer" and "dead wood" (Weber was in
his early 70s at the time).  R.65 at 58-22 to 60-6, 62-1 to 17,
130-8 to 20, 153-1 to 20; R.66 at 38-9 to 10, 41-9 to 25, 42-21 to
43-2.  Conroy did not comply, stating later he believed Bledsoe's
directive was because of Weber's age and, therefore, unlawful. 
R.66 at 42-15 to 20.  At Conroy's termination meeting, Bledsoe said
nothing to Conroy about any performance deficiencies and even
complimented Conroy on his knowledge of the commercial side of the
business, but said that the company was "going in a different
direction."  R.65 at 62-22 to 63-11; R.66 at 47-2 to 48-1.  Conroy
states that following this meeting, he told Weber that Bledsoe had
wanted him to fire Weber, but he [Conroy] "took the bullet instead
of you."  R.66 at 49-3 to 12.  
     Conroy sued Abraham Chevrolet alleging discriminatory
discharge based both on age and retaliation (for having refused to
terminate Weber).  R.1.  The district court denied Abraham
Chevrolet's motion for summary judgment, R.24, and the case was
tried before a jury.  R.40.  At trial, Conroy's witnesses testified
that Bledsoe made a number of "ageist" comments during his six
months at the dealership, including referring to staff in the
commercial sales department as "the geriatrics" and referring to
Weber and other older employees of Abraham Chevrolet variously as
"old geezer," "old man," and "dead wood."  R.65 at 24-6 to 14, 58-
22 to 60-6, R.66 at 38-16 to 39-25.  Bledsoe did not deny that he
had used at least some of these phrases, stating they were slang
expressions that he did not realize might cause offense to some
persons. See, e.g., R.66 at 129-11 to 20.  Plaintiff's witnesses
also testified that Bledsoe often mentioned that the staff at his
former dealership had been much younger, and that Abraham Chevrolet
needed to hire employees who were "younger and more energetic" and
"fresh blood."  R.65 at 52-1 to 3, 55-4 to 57-16, 71-1 to 9, 128-10
to 129-20; R.66 at 40-8 to 24.  Although Bledsoe initially
testified that he used these phrases figuratively to refer to
energy level and job enthusiasm, R.66 at 128-17 to 22, he later
admitted a more literal explanation, conceding that he "equate[d]
people that are younger as taking action."  Id. at 133-1 to 134-
14.
     The parties gave conflicting testimony concerning the reasons
for Conroy's termination.  Conroy presented evidence that at the
time he was fired both he and the commercial division were meeting
the dealership's general expectations for sales of commercial cars,
given that he had only been in the position for less than a year
and was still building up his clientele at this location.  R.66 at
44-9 to 13, 110-16 to 18.  Conroy also testified that neither
Bledsoe nor anyone else at Abraham Chevrolet ever disciplined him,
counseled him, or told him the commercial department's sales were
unsatisfactory.  Id. at 37-15 to 22, 48-10 to 24, 110-19 to 24.  In
fact, Bledsoe admitted that he told Conroy twice, shortly before
his termination, that Conroy was doing a good job.  Id. at 131-7 to
17.  
     Abraham Chevrolet asserted that Conroy was fired for poor
performance but that Bledsoe did not say this at Conroy's
termination meeting because he wanted to spare Conroy's feelings. 
R.67 at 150-23 to 151-7.  The company presented sales data
generated after Conroy's departure by the Human Resources Director
for Abraham Chevrolet's parent company.  According to Abraham
Chevrolet's witnesses, this data indicated the commercial
department as a whole and Conroy, in particular, were selling below
GM's monthly benchmarks for commercial sales for a number of months
prior to Conroy's termination.  In direct contradiction to
Conroy's testimony, Bledsoe testified that he shared his concern
about underselling with Conroy and "may have counseled Conroy"
concerning his failure to meet GM's monthly sales performance
standards, although he admitted he was "not sure" about this.  R.66
at 197-5 to 24, 220-9 to 16.  Bledsoe testified that he considered
it important for a manager to document performance deficiencies in
an employee's personnel file before taking an adverse employment
action.  Id. at 218-19 to 22.  Aside from Bledsoe's equivocal
statements, however, the company presented no documentary or other
corroborating evidence that Bledsoe had documented Conroy's alleged
performance deficiencies or that Conroy received any negative
performance evaluations or counseling from anyone while working at
Abraham Chevrolet. 
     Conroy also presented evidence that on the same day he was
fired, Bledsoe replaced him with Joel Early, who was in his early
40's at the time.  R.65 at 135-18 to 20, 144-25 to 145-1, R.66 at
155.  Early had been splitting his time between the retail and
commercial sides of the dealership at the time and had limited
management experience.  R.65 at 134-20 to 136-10.  Although Bledsoe
told Early he was being hired on a probationary basis and had to
prove himself, R.65 at 129-1 to 7, 136-7 to 12, Bledsoe testified
that he had no specific plans to replace Early when he hired him. 
R.66 at 182-5 to 183-2.  Early was given a temporary pay plan that
extended through the end of March and was told to hire new staff
for the Commercial Department.  Id. at 181-83.  A couple of weeks
after Conroy told Bonnie Bonovia, on February 7, 2001, that he
believed he had been fired because of his age and in retaliation
for refusing to terminate Weber, Bledsoe suddenly discharged Early
and replaced him with Randy Clark, who was two years older than
Conroy and who was suggested to Bledsoe by a regional manager for
General Motors.  Id. at 200.  When asked at trial why he fired
Early, Bledsoe could not recall any reason.  Id. at 184-15 to 17. 
In his written response to Conroy's EEOC charge of discrimination,
Bledsoe asserted that age was not a factor in his decision to fire
Conroy, "particularly since the new replacement is actually two
years older than [Conroy]."  Id. at 173-6 to 174-3.  When asked at
trial why he didn't tell EEOC that he had initially promoted a much
younger employee (Early) to take Conroy's place, Bledsoe stated, "I
don't think it was pertinent."  Id. at 175-14 to 16.  
     At the close of the evidence, the court denied Plaintiff's
request that the jury be instructed it could infer discriminatory
motivation if it disbelieved the company's explanation for
terminating him.  R.67 at 56-13 to 58-17, 171-10 to 12.  The court
reasoned that this Court's pattern jury instructions for ADEA
claims "sufficiently incorporate the concept that the plaintiff
wishes to get across to the jury" and that inclusion of an
instruction "on the McDonnell Douglas framework" was likely to
create jury confusion.  Id. at 171-12 to 18.  The court then
instructed the jury that the plaintiff had the burden of proof "on
each and every element of ... his claim[]" and that "it is the
burden of the plaintiff to prove to your satisfaction by a
preponderance of the evidence that the defendant discriminated
against the plaintiff because of the plaintiff's age" (i.e., "that
plaintiff's age was a substantial or motivating factor that
prompted the defendant to terminate his employment ....").  Id. at
183 to 185.  The instructions emphasized that under the ADEA only
discharge based on age was unlawful, that an employer could
discharge an employee "for any other reason, good or bad, fair or
unfair" and that the jury "must not second guess that decision or
... substitute [its] own judgment for that of the defendant ...." 
Id. at 184.  The jury returned a verdict in favor of Abraham
Chevrolet.  R.51.  
C.  Disposition Below
     Conroy moved for a new trial arguing, among other things, that
the court erred in failing to give an instruction on "pretext." 
R.53.  The district court denied the motion.  R.59.  The court
reasoned that in Palmer v. Bd. of Regents of the Univ. Sys. of
Georgia, 208 F.3d 969 (11th Cir. 2000), this Court held that the
pattern instructions "convey the law correctly" and that the risk
of confusing the jury makes it "inappropriate to instruct the jury
with phrases like 'prima facie case' and 'burden of production'." 
R.59 at 8-9 (citing Palmer, 208 F.3d at 974).  The district court
cited decisions from other circuits holding that although a judge
may deliver a pretext instruction, "the judge may and usually
should leave the subject to the argument of counsel."  R.59 at 9
(citations omitted).  The court concluded that in this case
plaintiff's counsel "clearly argued that the defense case was not
credible" but "[t]he jury, obviously, decided the credibility
questions in Defendant's favor."  Id. at 10.  This appeal followed.
D.  Standard of Review
     This Court reviews jury instructions de novo to determine
whether, considered as a whole, they "sufficiently instructed the
jury so that the jurors understood the issues and were not misled." 
Palmer, 208 F.3d at 973 (citations omitted).  Although the trial
judge is given "wide discretion as to the style and wording
employed in the instructions," this Court will grant a new trial
even where the instructions are technically a correct statement of
the law if the Court is "left with a substantial and ineradicable
doubt as to whether the jury was properly guided in its
deliberations."  See Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543
(11th Cir. 1996)(citations omitted)(new trial ordered because
although instruction given was not technically incorrect, it failed
to define an important copyright term and failed to instruct jury
on legal consequences of certain findings).  See also Palmer, supra
(reversal warranted if "failure to give the [requested] instruction
resulted in prejudicial harm to the requesting party")(citing
Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th
Cir. 1998).
                      SUMMARY OF ARGUMENT
     The district court in this case committed reversible error in
declining to instruct the jury that it was permitted to infer a
discriminatory motive if it disbelieved Abraham Chevrolet's
explanation for firing Conroy.  Conroy relied primarily on the
McDonnell Douglas method of indirect proof to establish that his
termination was motivated by age discrimination, and at trial he
presented enough evidence to raise a jury question that Abraham
Chevrolet's asserted reason for discharging him was not the true
reason he was fired.  The inference of discriminatory, age-based
motive a jury is permitted to make based on such a finding of
pretext is not intuitively obvious, however.  Indeed, without an
appropriate instruction on "pretext," a reasonable jury could not
be expected to understand that it is permitted to infer age
discrimination based on a finding that the defendant's asserted
reason was not the true reason.  Taken as a whole, the instructions
given in this case did not properly guide the jury in its
deliberations.  Because the requested instruction goes to the heart
of Conroy's discrimination proofs and is not intuitively obvious,
the omission of this instruction constitutes reversible error, and
Conroy is entitled to a new trial on this ground.
                            ARGUMENT
     It is well-settled that an ADEA plaintiff does not need 
affirmative evidence of discriminatory motive to establish that an
employer intentionally discriminated on the basis of age.  As the
Supreme Court explained in Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 148 (2000), "a plaintiff's prima facie case,
combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated."  See also St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)(factfinder's
disbelief of reasons put forward by defendant may, together with
elements of prima facie case, suffice to allow jury to infer
ultimate fact of intentional discrimination);  Smith v. Borough of
Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998).  This permissible
inference is critical to civil rights enforcement, since "there
will seldom be 'eyewitness' testimony as to the employer's mental
processes."  Reeves, 530 U.S. at 147 (citing U.S. Postal Service
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)).  
     This Court acknowledged the importance of this permissible
inference in Palmer.  See 208 F.3d at 974 ("jury's disbelief of the
defendant's explanation is enough because the untruthfulness itself
can provide the necessary inference of discrimination").  That a
conclusion of discrimination can be inferred from disbelief of the
employer's asserted non-discriminatory reasons is not intuitively
obvious, however, as illustrated by the number of courts, before
Reeves, that required plaintiffs to offer "pretext-plus" (i.e.,
additional evidence, over and above proof of pretext, to
demonstrate that the employer's real reason was discrimination). 
For this reason, we agree with the Third Circuit that "[i]t does
not denigrate the intelligence of our jurors to suggest that they
need some instruction in the permissibility of drawing [an]
inference [of discrimination from the falsity of the employer's
proffered explanation];" given differences of opinion among judges
over the years concerning how a jury may use its finding of
pretext, "it would be disingenuous to argue that it is nothing more
than a matter of common sense."  Smith, 147 F.3d at 281 (new trial
granted because court failed to instruct jury on "pretext").  
     Conroy relied, primarily, on the McDonnell Douglas "pretext"
framework to establish that he was terminated because of his age. 
Having relied on this permissible method of proving discrimination,
Conroy was entitled to have the jury instructed on "pretext," as he
requested, because Conroy presented enough evidence that a
reasonable juror could disbelieve Abraham Chevrolet's proffered
reasons and could infer from the falsity of the company's
explanation that it was trying to cover up a discriminatory
purpose.  As this Court stated in Palmer:
     [T]he jury needs to be told ... [it] is entitled to
     infer, but need not infer, that [the plaintiff's] burden
     [of proving discriminatory animus] has been met if they
     find that [the requisite facts for the prima facie case]
     have been established and they disbelieve the defendant's
     explanation.  

208 F.3d at 974 (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 382
(2d Cir.), cert. denied, 513 U.S. 876 (1994); alterations added and
in original); see also Townsend v. Kemper Nat'l Ins. Cos., 294 F.3d
1232, 1241 (10th Cir. 2002)(district court required to give pretext
instruction); Ratliff v. City of Gainesville, Tex., 256 F.3d 355,
360-61 (5th Cir. 2001)(same); Smith, 147 F.3d at 279-81 (same).  The
inclusion of such an instruction does not mean a plaintiff will
automatically prevail.  Indeed, as this Court noted in Combs v.
Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997), cert.
denied sub nom., Combs v. Meadowcraft Co., 522 U.S. 1045 (1998),
"the plaintiff may or may not ultimately prevail in the litigation
[by discrediting the employer's explanation], because the
factfinder may or may not choose to make the permissible inference
of discrimination."  Cf. Dennis v. Columbia Colleton Medical
Center, Inc., 290 F.3d 639, 650-51 (4th Cir. 2002)(upholding trial
court's decision to give pretext instruction because "instructions
...  made clear that the jury could, but did not have to, infer
discrimination if it disbelieved [employer's] explanation"). 
Absent an instruction on pretext, however, there is no way to know
whether the jury exercised its prerogative not to make the
inference, or did not realize such an inference is permissible.
     The district court erred in declining to give a "pretext"
instruction in this case.  Read as a whole, the jury instructions
did not properly instruct the jury on Conroy's theory of proof
because the instructions did not inform the jury of the permissible
inference available under Reeves.  Without a "pretext" instruction,
the instruction given here that the plaintiff has the burden of
proving discriminatory motive by a preponderance of the evidence,
along with the directive (under the "business judgment"
instruction) not to second-guess the employer's reasons, likely led
the jurors to conclude they were permitted to find age
discrimination only if Conroy offered some affirmative evidence of
discrimination.  See Townsend, 294 F.3d at 1241 & 1243 (Henry, J.,
concurring).  The business judgment rule, in particular, is
intended to protect the sincere employer against jurors second-
guessing the reasonableness of its judgments; it is not intended to
protect an employer from having the jury consider whether its
proffered reasons are credible, or to protect the employer from
liability if the jury could find discrimination because defendant's
reasons are not credible.  Indeed, when an employer offers reasons
that are not believable, it is often nothing more than an attempt
to mask discrimination.  Reeves, 530 U.S. at 147-48; Palmer, 208
F.3d at 974 (citing Smith, 147 F.3d at 279).     
     The Courts of Appeals for the Fifth and Tenth Circuits
recently found reversible error where the lower court denied the
plaintiff's request for a jury instruction on the permissive
inference in a pretext case under circumstances very similar to
this case.  In Townsend, the Tenth Circuit recognized that the
significance of pretext in determining discrimination has for many
years been a difficult matter for the courts, and "would certainly
be difficult for a jury."  294 F.3d at 1241.  Reasoning that "the
danger [is] too great that a jury might make the same assumption
that the Fifth Circuit did in Reeves," the court held:
     [I]n cases such as this, a trial court must instruct
     jurors that if they disbelieve an employer's proffered
     explanation they may -but need not -infer that the
     employer's true motive was discriminatory.  Moreover we
     are persuaded by the position of the EEOC that the issue
     is whether in the absence of any instructions about
     pretext, "the jury found for the defendant because it
     believed that plaintiff could not prevail without
     affirmative evidence that his race was a motivating
     factor in the challenged employment decisions."

Id.  As occurred here, the trial court in Townsend instructed the
jury that in order for the plaintiff to recover on his federal
employment discrimination claim, he had to "prove by the
preponderance of the evidence that defendant intentionally
discriminated against plaintiff ...."  The concurring judge in
Townsend explained that giving this "burden of proof" instruction,
without an accompanying explanation of the permissive inference
that arises from a finding of pretext, is likely to confuse the
jury since a "rational juror might very well have interpreted such
an instruction to require affirmative proof of discriminatory
intent."  Id. at 1243 (Henry, J., concurring).  Because of this
potential jury confusion, "absent the proposed [pretext]
instruction, jurors are left without adequate guidance as to the
circumstances in which they may infer discriminatory intent."  Id.
at 1244 (Henry, J., concurring).
     In Ratliff, the Fifth Circuit similarly remanded plaintiff's
ADEA claim for a new trial, holding that "in light of the changes
made to a plaintiff's evidentiary burden in discrimination cases
outlined in Reeves, the district court erred in failing to give an
inference instruction ...."  256 F.3d at 364.  Consistent with the
Fifth Circuit Pattern Jury Instructions, the district court in
Ratliff had advised the jurors that they were "permitted to draw
such reasonable inferences from the testimony and exhibits as you
feel are justified in the light of common experience," but did not
instruct the jury that it could infer that the employer's
explanation was a pretext for discrimination if it disbelieved the
employer's proffered reasons.  See id. at 360 and nn5&6.  The Fifth
Circuit rejected Gainesville's arguments that plaintiff's requested
"pretext" instruction was redundant in light of the general
inference instruction and held, consistent with post-Reeves Fifth
Circuit precedent and pre-Reeves decisions of the Second and Third
Circuits, that the requested instruction was warranted.  Id. at
360-61 & n.7.  See also Smith, 147 F.3d at 279 (new trial granted
because district court failed to give "pretext" instruction).
     The district court in this case likewise erred in denying
Conroy's motion for a new trial.  First, the court below
erroneously concluded that this Court's decision in Palmer supports
its ruling.  In significant contrast to this case, the jury
instructions in Palmer included the following pretext/inference
explanation:  
     One way that the Plaintiff may show intentional
     discrimination is by showing that Board of Regents'
     stated reasons for actions it took were not true, and
     instead were pretext or cover, hiding an underlying
     intent to discriminate.  

[R5-595-599, Palmer, Civ. No. 96-01459-1-JRS (N.D. Ga.)].  The
dispute on appeal in Palmer thus centered not on whether a
"pretext" instruction should be given (since it was), but whether
that instruction was undermined by the district court's inclusion
of additional language that might have misled the jury into
believing a plaintiff had to prove "pretext-plus."  The district
court in this case thus erred in construing this Court's decision
in Palmer as a license to omit a jury instruction on "pretext."  To
the contrary, this Court's discussion in Palmer of the importance
of instructing the jury on the inference that can be drawn from
evidence of pretext, id. at 974 (citing Cabrera, 24 F.3d at 382;
Smith, 147 F.3d at 279), supports the conclusion that the district
court in this case erred on this point.
     The district court also wrongly concluded that the pretext
instruction Conroy requested would run afoul of this Court's
rulings that jury instructions should avoid "phrases like 'prima
facie case' and 'burden of production' because they create a
distinct risk of confusing the jury."  R.59 at 8-9 & n.2, citing
Palmer, 208 F.3d at 974 (other citations omitted).  The
instructions Conroy sought in this case make no mention of such
phrases, and a "pretext/inference" instruction can be conveyed to
a jury in terms that avoid all such technical references.  
     Finally, the district court wrongly concluded that the
omission of a "pretext/inference" instruction did not create any
error here because Conroy's counsel argued in his closing that the
defense's case was not credible and "[t]he jury ... decided the
credibility questions in Defendant's favor."  R.59 at 10.  In the
absence of the proper instruction on "pretext/inference," there is
no way to determine, from the verdict, whether the jury decided the
defendant's proffered reason was credible, or whether the jury
disbelieved the defendant's explanation but concluded, incorrectly,
that such a disbelief was not enough to sustain Conroy's burden of
proving age discrimination by a preponderance of the evidence. 
See, e.g., Townsend, 294 F.3d at 1243-44 (Henry, J., concurring). 
     Counsel's arguments are not an adequate substitute for a
complete and accurate statement of the law by the judge, as the
lower court and Seventh Circuit have wrongly concluded.  See
Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994); see also
Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 790 & n.9 (8th
Cir. 2001)(expressing doubt, in dicta, that pretext instruction is
compulsory); Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir.
2000)(same).  It is the trial court that "must ensure 'that the
jury be given full and complete instructions by relating the law to
the relevant evidence in the case.'"  Smith, 147 F.3d at 279.  As
the Tenth Circuit noted in Townsend, "While counsel may be relied
on to point out facts and suggest reasoning, the judge's duty to
give an instruction on an applicable matter of law is clear.  This
is particularly true where, as here, the law goes to the heart of
the matter."  Id. at 1241.  See also Smith, 147 F.3d at 278
("inescapable duty of the trial judge to instruct the jurors, fully
and correctly, on the applicable law of the case")(internal quotes
and citations omitted).  Indeed, as the Third Circuit noted in
Smith, "[i]t is difficult to understand what end is served by
reversing [or, as in this case, denying] the grant of summary
judgment for the employer on the ground that the jury is entitled
to infer discrimination from pretext ... if the jurors are never
informed that they may do so."  Id. at 280.   
     When viewed as a whole, the jury instructions given in this
case did not fairly and adequately inform the jury that it could
infer Conroy was terminated because of his age solely based on its
disbelief of Abraham Chevrolet's explanation for Conroy's
discharge.  Conroy presented sufficient evidence in this case to
raise a jury question of whether Abraham Chevrolet's reason was a
pretext for discrimination, particularly when viewed along with the
substantial evidence of Bledsoe's disparaging references to older
workers at Abraham Chevrolet and his expressions of animus
concerning older workers generally.  Viewed in their entirety, the
district court's instructions here concerning the plaintiff's
burden of proof, the jury's obligation to defer to the defendant's
"business judgment" and the jury's ability to disregard testimony
it finds to be untruthful raise a "substantial and ineradicable
doubt as to whether," in the absence of a pretext instruction, "the
jury was properly guided in its deliberations."  Bateman, 79 F.3d
at 1543.  
                           CONCLUSION
     For all of the foregoing reasons, the district court erred in
declining to instruct the jury on the permissible inference it was
entitled to make if it disbelieved Abraham Chevrolet's explanation
for firing Conroy.  For the same reasons, the district court erred
in denying Conroy's motion for a new trial on this basis.  Because
the requested instruction goes to the heart of Conroy's
discrimination proofs and is not intuitively obvious, the omission
of this instruction constitutes reversible error, and this Court
should order a new trial on this ground.
                                Respectfully Submitted,

                                JAMES L. LEE
                                Deputy General Counsel

                                CAROLYN L. WHEELER
                                Acting Associate General Counsel

                                LORRAINE C. DAVIS
                                Assistant General Counsel

                                                              
                                SUSAN R. OXFORD
July 30, 2003                   Attorney
                                EQUAL EMPLOYMENT OPPORTUNITY
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                   CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the type-volume
limitations set forth in F.R.A.P. 32(a)(7)(B)(i).  The brief is
prepared in Courier New 12-point type and contains 6,175 words.

                                                        
                                Susan R. Oxford
                     CERTIFICATE OF SERVICE
                                
     I hereby certify that on this 30th day of July, 2003, I caused
an original and six copies of the attached Amicus Curiae Brief,
along with an electronic version on floppy disk, to be sent by
Federal Express to the Clerk of the Court for the U.S. Court of
Appeals for the Eleventh Circuit, and two copies of the attached
Amicus Curiae Brief, along with an electronic version on floppy
disk, to be sent by Federal Express, next day delivery, to the
following counsel of record:
Craig L. Berman, Esq.              John R. Hamilton, Esq.
BERMAN LAW FIRM, P.A.              FOLEY & LARDNER
111 Second Avenue N.E.,            111 North Orange Avenue,
  Suite 810                          Suite 1800
St. Petersburg, FL 33701           Orlando, FL   32801

                                                       
                                Susan R. Oxford

DATED: July 30, 2003