United States Court of Appeals

For the First Circuit

No. 98-1916

CLEMENTE FEBRES, A/K/A CLEMENTE FEBRES-MORALES, ET AL.,

Plaintiffs, Appellants,

v.

CHALLENGER CARIBBEAN CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Juan Rafael Gonzalez Muñoz, with whom José Luis Gonzalez

Castañer was on brief, for appellants.

Graciela J. Belaval, with whom Martinez, Odell & Calabria

was on brief, for appellee.

June 8, 2000

1CCC is now known as Thomas & Betts Puerto Rico, Inc.

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SELYA, Circuit Judge. Ever since Justice O'Connor

highlighted the importance of direct evidence of discrimination,

see Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77 (1989)

(O'Connor, J., concurring), courts have struggled to determine

whether particular pieces of evidence can be so classified.

Following the passage of the Civil Rights Act of 1991, Pub. L.

No. 102-166, § 102, 105 Stat. 1071, 1073 (codified at 42 U.S.C.

§ 1981a(c)(1)), this struggle took on an added dimension: the

Act made jury trials widely available in discrimination cases,

thus sparking interest in how juries were to be instructed when

direct evidence of discrimination had been introduced. We have

approached these subjects cautiously, eschewing broad

generalizations. See, e.g., Fernandes v. Costa Bros. Masonry,

199 F.3d 572, 581-83 (1st Cir. 1999). This appeal requires us

to take an incremental step along the decisional path.

I. BACKGROUND

On February 1, 1994, Thomas & Betts Corporation

(Thomas) acquired the assets of Challenger Caribbean Corporation

(CCC), a manufacturer of circuit breakers and switches.1 Thomas

decided to shut down CCC's production line at Canóvanas and

transfer the work to a Vega Baja facility operated by Thomas &

Betts Caribe, Inc. (Caribe). One virtue of this consolidation
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was the opportunity to downsize. Thomas placed a trio of

executives — Frank Domenech (the manager of the Vega Baja

plant), Ojel Rodríguez (his Canóvanas counterpart), and Ramón

Becker (Caribe's human resources director) — in charge of

deciding which CCC employees were to be transferred and which

were to be shown the door. The triumvirate met several times to

determine the employees' fate.

On December 2, 1994, Domenech announced the closing of

the Canóvanas plant. He also disclosed that slightly less than

half of CCC's administrative employees (17 out of 36) would be

transferred to Vega Baja. The nine appellants — Michael Dalmau

(age 47), Clemente Febres (age 53), Rafael Hiraldo (age 46),

Carmen López (age 41), Jesús Ortiz (age 64), José Pomales (age

54), Emma Rovira (age 43), Gloria Soto (age 47), and Luis Zayas

(age 62) — were not part of that 17-member complement.

Invoking the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634, the appellants sued. CCC defended

on the ground that its decisions were based on legitimate, ageneutral criteria. Following a lengthy trial, the jury returned

a verdict in CCC's favor.

The evidence at trial was a mixed bag, some favoring

the appellants and some favoring CCC. Citing book and verse

would for the most part serve no useful purpose. The sole
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exception concerns Becker's testimony that, as the triumvirs

began mulling transfer decisions, Domenech advised him privately

that three criteria were used to determine which employees would

be moved to Vega Baja: job performance, union identification,

and "in some cases, the age." The critical questions raised by

this appeal concern the character of this bit of testimony and

the jury instructions related to it. We shall return to those

questions shortly. At this juncture, however, we pause to offer

a quick primer on the effect of direct evidence in a

discrimination case.

II. THE LEGAL LANDSCAPE

A plaintiff alleging disparate treatment under a

statute like the ADEA usually proceeds by means of the familiar

framework engendered in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-05 (1973). We have described the mechanics of

this approach (customarily called the "pretext" approach) in

considerable detail, see, e.g., Fernandes, 199 F.3d at 579-81;

Mesnick v. General Elec. Co., 950 F.2d 816, 823-24 (1st Cir.

1991), and need not elaborate upon it here. What is significant

for present purposes is that, under pretext analysis, the burden

of persuasion remains with the plaintiff throughout the case.

See Fernandes, 199 F.3d at 581; Mesnick, 950 F.2d at 823.
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In some situations, however, a plaintiff may be

entitled to use an approach that relieves her of this

unremitting burden of persuasion. The key that unlocks this

door is the existence of direct evidence that a proscribed

factor (such as age, gender, race, or national origin) played a

motivating part in the disputed employment decision. See Price

Waterhouse, 490 U.S. at 276-77 (O'Connor, J., concurring);

Fernandes, 199 F.3d at 580. Such evidence, if accepted by the

factfinder, shifts the burden of persuasion to the employer, who

then must establish that he would have reached the same decision

regarding the plaintiff even if he had not taken the proscribed

factor into account. See Price Waterhouse, 490 U.S. at 242;

Fernandes, 199 F.3d at 580. Although the plaintiff's initial

burden under this "mixed-motive" approach is heavier than the de

minimis showing required to establish a prima facie case under

the pretext approach, see Raskin v. Wyatt Co., 125 F.3d 55, 60

(2d Cir. 1997), most plaintiffs perceive the Price Waterhouse

framework and its concomitant burden-shifting as conferring a

pronounced advantage. In the average case, the employee thirsts

for access to it, while the employer regards it as anathema.

See Thomas v. Denny's, Inc., 111 F.3d 1506, 1512 (10th Cir.

1997).

III. ANALYSIS 
2To the extent that the appellants advance other arguments,

those arguments are insubstantial and we reject them out of

hand.

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We now return to the case at hand, focusing on the

appellants' principal assignment of error.2 We split our

analysis into two segments. First, we evaluate the appellants'

claim — strenuously challenged by CCC — that they introduced

direct evidence sufficient to warrant a mixed-motive jury

instruction. Because we resolve that question favorably to the

appellants, we then consider the appellants' follow-on claim

that the judge failed to give a suitable mixed-motive

instruction.

A. The Character of the Evidence Presented.

The appellants assert that the Becker testimony

qualifies as direct evidence, and that the lower court therefore

was obliged to give a mixed-motive jury instruction. CCC

disputes this assertion. The question of whether particular

evidence warrants a mixed-motive instruction is a question of

law, subject to de novo review. See Medlock v. Ortho Biotech,

Inc., 164 F.3d 545, 552 (10th Cir.), cert. denied, 120 S. Ct. 48

(1999); see also United States v. Flores, 968 F.2d 1366, 1367-68

(1st Cir. 1992).
3We think it prudent to add a caveat. The phrase "direct

evidence," by any definition, refers to evidence which, if

believed by the factfinder, would warrant a burden shift. In a

case tried to a jury, the phrase does not require that the

plaintiff produce evidence that the court finds persuasive. In

other words, credibility determinations in respect to direct

evidence are for a properly instructed jury, not for the judge.

See Thomas, 111 F.3d at 1512; Ostrowski v. Atlantic Mut. Ins.

Cos., 968 F.2d 171, 184 (2d Cir. 1992).

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As we recently had occasion to observe, the courts of

appeals are in some disarray as to what constitutes direct

evidence sufficient to provoke a mixed-motive instruction. See

Fernandes, 199 F.3d at 582 (collecting cases). We need not draw

overly fine distinctions today. For present purposes, it

suffices to say that evidence is "direct" (and thus justifies a

mixed-motive jury instruction) when it consists of statements by

a decisionmaker that directly reflect the alleged animus and

bear squarely on the contested employment decision.3 See, e.g.,

Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.

1999) (en banc), cert. denied, 120 S. Ct. 1243 (2000); Lambert

v. Ackerly, 180 F.3d 997, 1008-09 (9th Cir.) (en banc), cert.

denied, 120 S. Ct. 936 (1999); Thomas v. NFL Players Ass'n, 131

F.3d 198, 204 (D.C. Cir. 1997). Domenech's admission — that age

was one of three criteria used, at least in some cases, to

determine which employees would be retained and which would not

— is of this genre. It therefore constitutes direct evidence

warranting a mixed-motive instruction.
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Although CCC rails against this conclusion, its attacks

lack force. Domenech's statement was made by a decisionmaker,

pertained to the decisional process, bore squarely on the

employment decisions at issue (or, at least, on some of them),

and straightforwardly conveyed age animus. Given these

attributes, the statement cannot be dismissed as mere background

noise or as a stray remark. See Fernandes, 199 F.3d at 583.

In a burst of optimistic surmise, CCC denies that

Domenech's invocation of age as a criterion directly reflects

age animus. In its view, he may have been referring, say, to a

plan to give older employees special (favorable) treatment. We

reject such speculation. Comments which, fairly read,

demonstrate that a decisionmaker made, or intended to make,

employment decisions based on forbidden criteria constitute

direct evidence of discrimination. See Sheehan v. Donlen Corp.,

173 F.3d 1039, 1044 (7th Cir. 1999) (observing that the term

"direct evidence" covers more than virtual admissions of

illegality). The mere fact that a fertile mind can conjure up

some innocent explanation for such a comment does not undermine

its standing as direct evidence. See id. To hold otherwise

would be to narrow the definition of direct evidence so

drastically as to render the Price Waterhouse framework

inaccessible to all but the bluntest of admissions. We prefer
4Becker, when queried about his response to Domenech's

articulation of age as an employment criterion, testified that

he "defended the older people" and pointed out to Domenech that

"us older guys sometimes work better than the younger people."

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a more measured approach. Cf. Fernandes, 199 F.3d at 583

(holding "that a statement that plausibly can be interpreted two

different ways — one discriminatory and the other benign — does

not directly reflect illegal animus and, thus, does not

constitute direct evidence") (emphasis supplied).

Gauged against this benchmark, CCC's challenge falls

short. In context, there is nothing inscrutable about the

statement attributed to Domenech.4 Its meaning is plain. Thus,

we give no credence to CCC's strained attempt to create

ambiguity where none exists.

Taking a somewhat different tack, CCC asseverates that

the evidence does not bear squarely on the contested employment

decisions because Domenech's remark, as reported, merely posited

that age was used as a criterion "in some cases" without

specifically mentioning the appellants. This argument assumes

that a statement cannot bear squarely on an employment decision

unless it specifically refers to that decision. Both case law,

see, e.g., Thomas, 131 F.3d at 204 (stating that "evidence may

'bear directly' on a decision without referring to it

specifically"), and common sense refute that assumption.
5For example, CCC notes that Domenech denied making the

"age" remark and suggests that his testimony was more credible

than Becker's (especially since Becker never mentioned the

matter until after he himself had been fired). CCC also notes

that Becker was hardly a neutral party; at the time of trial, he

was suing Caribe for wrongful discharge and age discrimination.

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Indeed, a contrary rule would mean that the greater never could

be construed to include the lesser.

This case illustrates the wisdom of not requiring a

specific reference. Becker testified that he asked Domenech

about the criteria that were to be used to determine who would

be transferred to Vega Baja and who would be cut loose.

Domenech listed "age" among the pertinent criteria, signifying

that this protected characteristic would be used as a criterion

in some of those transfer decisions. The appellants were within

the relatively small pool of employees who were being considered

for transfer and were older than several of those who retained

their positions. Under the circumstances, it would blink

reality to pretend that this evidence did not bear squarely on

the appellants' situations.

CCC's remaining assaults on the status of this evidence

all relate, in one way or another, to Becker's credibility (or

lack thereof).5 These animadversions confuse the predicate for

obtaining a mixed-motive jury instruction — the existence of

direct evidence — with the predicate for shifting the burden of
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persuasion under a mixed-motive analysis — proof establishing

that age played a motivating part in the challenged employment

decision. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162

(2d Cir. 1997); Thomas, 111 F.3d at 1512; Ostrowski, 968 F.2d at

182, 184. Whether or not Becker's testimony was credible — a

matter on which we take no view — his recounting of Domenech's

admission nonetheless constituted direct evidence.

B. The Jury Instructions.

Because the appellants introduced direct evidence of

age discrimination, the district court was obliged, upon the

appellants' seasonable request, to give the jury a Price

Waterhouse instruction. The lingering question, then, is

whether the court satisfied that obligation. The appellants

contend that the court gave them short shrift. We think not.

We briefly rehearse the controlling legal principles.

A party has a right to an instruction on her theory of the case,

provided that her theory is both valid in law and supported by

evidence in the record. See United States v. DeStefano, 59 F.3d

1, 2 (1st Cir. 1995); Rogers v. ACF Indus., Inc., 774 F.2d 814,

818 (7th Cir. 1985). But that right does not imply a corollary

right to insist that the trial judge use particular verbiage.

See United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992).

"Jury instructions are intended to furnish a set of directions
6The court stated in material part:

In order for the plaintiffs to prove discrimination .

. . through direct evidence, each plaintiff must prove

by a preponderance of the evidence . . . the following

three elements: One, that he or she was 40 years or

older; and [two], he or she was qualified but was not

transferred to or offered a position at the Vega Baja

plant; and three, his or her age was a determinative

factor in defendant's decision not to offer the

plaintiffs a position in Vega Baja. 

. . . .

If you find by a preponderance of the evidence

that the plaintiffs have established [these three

elements], then the plaintiffs are entitled to recover

. . . .

If, however, the plaintiffs fail to prove any of

these elements by a preponderance of the evidence, you

must decide that the plaintiffs have not proven age

discrimination.

Also, if you decide that the plaintiffs have

failed to prove that age was a determinative factor in

the defendant's decision, and would have suffered the

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composing, in the aggregate, the proper legal standards to be

applied by lay jurors in determining the issues that they must

resolve in a particular case. Provided that the charge

satisfies this need, the court's choice of language is largely

a matter of discretion." DeStefano, 59 F.3d at 2 (citation

omitted).

In this instance, the lower court deemed Becker's

testimony to be direct evidence and attempted to instruct the

jurors as to the effect of such evidence.6 The appellants
same consequences regardless of their ages, then you

must find that the plaintiffs have not proven age

discrimination.

. . . .

In other words, if plaintiffs have offered

evidence from which you conclude that defendant

discriminated against them because of their ages,

plaintiffs are entitled to recover, unless the

defendant proves that it would have taken the same

action regardless of plaintiff's ages. . . .

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criticize the adequacy of this instruction. We agree that it

was not a textbook model and do not recommend its emulation in

other cases. Yet the appellants, in their contemporaneous

objection, identified no specific flaw in the district court's

language. We quote the colloquy that ensued, out of the jury's

earshot, when counsel interposed his objection to the mixedmotive instruction:

 Appellants'

 Counsel: The plaintiffs specifically request from the

Court to give a charge to the jury under Price

Waterhouse.

 Court: But what is the specific charge that you want

to give the jury?

 Appellants'

 Counsel: [T]he specific charge that we are requesting is

the following: "If you find that the

plaintiffs have presented sufficient direct

evidence to establish that age was a motivating

factor in the decision to deny to them the

opportunity to transfer to work at the Vega

Baja plant, then the burden of persuasion

shifts to the employer, who must prove that it
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would have made the same decision even if age

had not been taken into account."

. . . .

 Court: Let me rule on that first. The objection is

denied. I charged the jury as follows: "In

other words, if plaintiffs have offered

evidence from which you can conclude that

defendant discriminated against them because of

their ages, plaintiffs are entitled to recover,

unless the defendant proves that it would have

taken the same action regardless of plaintiffs'

ages." That's covered in my instruction.

That's denied. Next one.

 Appellants'

 Counsel: To that we want to add that the case law is

specific that there is a shifting in the burden

of proof —

 Court: Okay, you made your objection. You save it.

You save it for appeal.

 Appellants'

 Counsel: Yes, your Honor, but in order for the record to

be clear, that we are requesting that the jury

be charged that the burden of proof has shifted

once the plaintiff has presented direct

evidence of discrimination, and very

respectfully submit that the testimony in this

case is sufficient to qualify it as direct

evidence.

 Court: Very well. I charged the jury that it is

direct evidence. I said so.

These comments voiced displeasure, but they did not delineate

particular language in the charge that the appellants deemed

confusing, internally inconsistent, or otherwise inconcinnous.

Under the circumstances, the appellants cannot now be heard to
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complain about an overall lack of clarity or the potential for

confusion. See Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir.

1999); United States v. Lara, 181 F.3d 183, 196 (1st Cir. 1999);

see also Fed. R. Civ. P. 51 (requiring parties objecting to

instructions to "stat[e] distinctly the matter objected to and

the grounds of that objection").

This is not the end of the matter, for the appellants

have a more promising argument. They did, in the course of

their objection, request a further instruction. They arguably

were entitled to that instruction as long as it constituted a

correct statement of the law, integral to an important issue in

the case, that had not been substantially covered in the charge

as rendered. See Faigin, 184 F.3d at 87; McGill, 953 F.2d at

13.

We conclude, however, that in this instance the

district court's failure to accommodate the appellants' request

for a supplementary instruction did not constitute reversible

error. It is hornbook law that a trial court does not commit

error when it instructs generally about a legal principle and

then declines a party's request for a further instruction that

is misleading, legally incorrect, or incomplete. See Lara, 181

F.3d at 196; DeStefano, 59 F.3d at 4; United States v. David,
7Wilson v. Maritime Overseas Corp., 150 F.3d 1 (1st Cir.

1998), is not to the contrary. There, we stated that if the

request for a particular instruction "directs the court's

attention to a point upon which an instruction to the jury would

be helpful, the court's error in failing to charge may not be

excused by technical defects in the request." Id. at 10. But

that rule does not apply to substantial defects and, in all

events, we made the statement in a situation where the district

court had completely failed to instruct the jury on an area of

law central to the case. See id. at 8. In the matter at hand,

the instructions given did address the mixed-motive approach,

and thus were subject to no such deficiency.

8To be sure, the phrase "sufficient direct evidence to

establish" may be susceptible to the interpretation that the

burden would shift if the appellants presented direct evidence

that established to the jury's satisfaction that age actually

was a motivating factor in the challenged employment decisions.

That would have been a correct statement of the law. But the

phrase's more natural reading, especially in light of the

colloquy that followed, is a legally erroneous one, to the

effect that the burden would shift if the appellants adduced

direct evidence sufficient to permit a finding that age was a

motivating factor. In all events, a jury instruction's

proponent has a duty to clarify ambiguities, see, e.g., David,

940 F.2d at 738, and the appellants did not do so here.

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940 F.2d 722, 738 (1st Cir. 1991).7 This is such a case. The

court had attempted to give a Price Waterhouse instruction. See

supra note 6. In objecting to it, the appellants had asserted

that more was needed. To fill this perceived void, they urged

the court to instruct that the burden of persuasion shifted as

long as the appellants presented "sufficient direct evidence to

establish that age was a motivating factor." This was wrong as

a matter of law.8 In a mixed-motive case, the burden of

persuasion does not shift merely because the plaintiff
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introduces sufficient direct evidence to permit a finding that

a discriminatory motive was at work; the burden shifts only if

the direct evidence in fact persuades the jury that a

discriminatory motive was at work. Put another way, the burden

of persuasion does not shift unless and until the jury accepts

the "direct evidence" adduced by the plaintiff and draws the

inference that the employer used an impermissible criterion in

reaching the disputed employment decision. See Kirsch, 148 F.3d

at 162; Ostrowski, 968 F.2d at 184. The appellants' proposed

instruction blurred this distinction.

The colloquy that followed the objection shows

convincingly that the appellants were conflating the standard

governing the giving of a mixed-motive instruction with the

standard governing the ensuing burden shift. For example, their

counsel stated: "We are requesting that the jury be charged

that the burden of proof has shifted once the plaintiff has

presented direct evidence of discrimination." He then opined

that "the defendant has to carry a burden once there is a

presentation of sufficient direct evidence to sustain a Price

Waterhouse charge." Since the appellants garbled the two

propositions, they cannot fault the district court either for

failing to separate wheat from chaff or for refusing to give the

requested instruction. See David, 940 F.2d at 738.
9The court below did not require the appellants to make an

election before submitting the case to the jury, and instead

appears to have instructed on both the pretext approach and the

mixed-motive approach. The appellants do not assign error to

the submission of these alternate theories to the jury, and we

express no opinion on the practice.

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IV. CONCLUSION

We need go no further.9 The short of it is that the

district court correctly apprehended the character of the

evidence presented and charged the jury accordingly. The

court's mixed-motive instruction was not letter perfect, but it

sufficed to place the issue before the jury. In the absence of

either a particularized objection to the instruction actually

given or an appropriate request for a more enlightening

instruction, the jury verdict must stand.

Affirmed.