* The Honorable Willi am J. Haynes, Jr., United States Distri ct Judge

for the Middle District of Tennessee, sitt ing by designati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0257P (6th C ir.) File Name: 03a02 57p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
B OBBY B ROWN ,

Plaintiff- Appellant

,

v.

P ACKAGI

NG C ORPORATI ON OF A MERICA , Defendant-Appellee. X

- - - -
> , - - - - - N No. 01-5864

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 00-01049—James D. Todd, Chief District Judge.

Argued: January

28, 2003 Decided and Filed: July 29, 2003

Befor e: NEL SON and CL

AY, Circu

it Judges; H

AYNES, District Judge. * 2 Brown v. Packaging Corp. of America No. 01-5864

_________________ COUNSEL

ARGUED: Victor I. Fleitas, Tupelo, Mississippi, for Appellan t. Marcus M. Crider, WAL L ER, LANSDEN, DO R TCH & DAVIS, Nashville, Tenne ssee, for Appellee. ON BRIE F: Victo r I. Fl eitas, Tupelo, Mississippi, Jim D. Wai de, WAIDE & ASSOCI ATES, Tupelo, Mississippi, for Appellan t. Marcus M. C r ider, WALLER, LANSDEN, DORTCH

& DAVIS, Na shville, Tennessee, Mark E. Stamelo s, KING & B ALL OW, Nashville, Tennessee, for Appellee.
NELSON, J., announced the judgment of th e court and delivered an opinion, in which CLAY, J. and HAYNES, D. J.,
conc urred except as to Part II

B. CLAY, J. (pp. 17-2 5) , d elive red a separate opinion, in which HAYNES, D. J.,
con cu rred, which constitutes the opinion of the court on the issue dis cussed in P art II B.

_________________ OPINION

_________________ DAV ID A. NELSON, Circuit Judg e. This is an appeal from
a judgment entere d on a v erdict for th e empl oyer in an a ge discriminationcase. The main issue we are asked to decide is whether t he district court committed reversible error by including instructions in its charge to the jury that replicated the prima-facie-case and “bur den-shifting” guidelines set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and T exas Dept. of Community Affairs v. Burdine , 450 U .S

. 248 (1981).

Unlik e my c oll eagues on the panel, I am inclined to think that trial cou rts should be discouraged from

parroting the legal technicalities of McDonnell Douglas and Burdine in chargingNo. 01-5864 Brown v. Packaging Corp. of America 3

juries. Whether or

not the inclusion of McDonnell Douglas verbi age in jury ins tru ctions may create an unnec essary

risk that the jury will be confuse d, however, none of the members of the panel is persuaded that any potential for

confusion in the
caseat bar was sufficiently g reat to necessitate a reversal here. Ac co rd in gl y, and bec ause we are not persuaded by the plaintiff’s remainingassignments of error, we shall affirm the challen ged jud gment.

I
The plaintiff in this case, Bobby Brown, went to work for the defendant, Packaging Corpor at io n of America, in 1962, when he was about 20 ye ars old. In 1996 Mr. B rown was promote d to a crew leader’s job. I n that capacity

he was responsi ble for the operation of one of two large paper machine s at a pla

nt in Counce, Tennessee. The promotion to
crew leader was base d entire ly

on seniority and was manda ted by a collecti ve barg aining a

greement.

In1999, when Mr. Brown was 57 y ears of age, plant manager Michael Syny

ard offe re d him a promotion to the position of tem porary f

oreman. Brown accepted. The new job, unlike the old one, was not covered by the c ollective bargaining agr

eement.
Alth ough Syny

arddid not nee d any

one’s ap proval to promote Mr. Brown, he mentioned his decision to Mark Kowlzan, a vice president of the com pany. Kowlzan voiced serious reservations about Brown, asserting tha t he “l a cked leadership” and pointing out that he had been con victed o f
arson for burning down his house. (The co mpany had fire d Brown at the time of

the convi ction, wh

ich occu rred in 1989, butsubseque

ntly rehire d him under

a threa t o f litigation.) Kowl za n f urther told Syny

ard about an incident in which Brown had shown

photogr aphs of hi s wife in t

he nude to fellowemploy

ees at the p lant – behavior tha t was not on

ly bi z arre, but that violated the company’s se xual harassment po li cy. Syny

ard had n

ot known a

bout eithe

r th e ar son 4 Brown v. Packaging Corp. of America No. 01-5864

convictionor the photograph incident, and he testified at trial that the information “dismay ed” him. Syny ard pro mp tl y decided

not to promote Brown after all, and he instructed area

supervis or David

Ellison to have Brown report for work on

the next shift as a crew

leader and not as

a foreman. When Brown aske d whathad happ ened to hi s promotion, Ellison all egedly told him tha

t Mr

. Kowlzan “wanted you nger p eopleand engineers to fill the job.” Ellison testi fied t hat he never s aid an y such thi ng. Syny ard met with Brown a day or two after the withdrawal of the promotion. This time Brown was told he was being

kept
onas crew le ader be cause the man who was in line

to succeed him in that job was far weaker than Brown a s far as experience went. Syny

ard did not mention the arson or t h e nude photogr aphs, testify

ing late r th at “ I thought it was very humiliating and emba

rrassing , and I

just didn’t see the need of further embarrassing Bobby . . . .” Syny ard ultimately filled t he temporary foreman’s slot by pr omoting an employ

ee name d Jamie Mims. Mr. Mims wa s 40 years old. Aggrieved

by h is fail u re to get the promotion he had been promised, Mr. Brown

filed an age discrimination cha rge wi th the Equal Emp lo ym ent Opportunity Commission. The company submitted a response deny ing that Brown had been discriminated ag ainst

because of age and a sserting that Mims “disp layed

more initi ative an

d exhibited

better le adershi

p characteristics.”The resp onse did not me ntio n Brown’s convicti on for arson or the nude phot

ograph inciden

t.
Unable to conclu

de that a

viola tion o f the A ge DiscriminationAct had b een esta blished, t he EEOC c losed its file and notif

ied Mr. B rown of h

is right to sue the employer within 90 d ays of his rec eipt of the notice. Brown exercised this right, filing an action in theUnitedStates District CourtNo. 01-5864 Brown v. Packaging Corp. of America 5

for the Wester

n Dis t rict of Tennessee and demanding a jury trial.

After denying a defense motion

for summa

ry judgmen t, the districtcourt denied

a motion in limine wherein Brown sought to exclude evidence of

his arson conviction. The court granted
a motio n to e xc lude evidence that David Ellison, the area supervisor

who first

advise d Bro wn that he was not being promoted, had been convicted of a misdemea

nor. (I n August of 1999 – a fter h e had become an area super visor – Ellison pleaded no contestto a misdemeanor charge of cr iminal trespass.)

When Br own ’s case went to trial, the district court took advan tage of a rec ess to review its proposed jury instructions with the lawyers. The proposed charge included f ive pages of text adapted from the Supreme Court’s opinion in McDonne ll Douglas , 411 U.S. at 802-805. The language c overed the four McDonne ll

Douglas elements of a prima facie case, the defendant’s burden of articulating a nondiscriminatory reason for the challenged employ ment action, the plaintiff ’ s obligation

to prove that the proffered reason wa s a pretext, and methods by w

hich pre text may be shown. The cour

t also proposed to add the following caution: “Remember, the ultimate burden remains at all times on plaintiff to prove by a preponde

rance of the evidence that he was discr

iminated a

gainst b ecause

of age ; theref

ore, it is not enough for pl aintiff to simply prove or claim that the stated reasons for PCA’s action s with rega rd to plaintiff were not believable or are not the true reasons for the actions. The reason

for this is because pl ai nt if f a lw ays must prove by a pr

eponderance of the evidence that he
was discriminated against because of his ag e. You must d etermine whether plaintiff has proved that the rea son s given by PCA were a pretex t for u nlawf ul age discrimination, and

you may consider all the ev idence i n making this determination.” 6 Brown v. Packaging Corp. of America No. 01-5864

Counsel for Mr. Brownobjected that the proposed instructions were improper for two reasons. First, he maintained, Brown

was offering not only

indirect evidence of wrongfuldiscrimination – the typ e of evid

ence d ealt with

in McDonne ll

D ou glas – but direct evidence as well. Second, counsel a rgued , even where the

evidenc e is pure ly

indirect, it is confusing for a jur

y to b e instructed on the elements of a prima facie case and (as counsel put it) “all that

burden shifting business.”

The trial court was unmoved by ei the r argument, and the instructionwas incorporated without change in the charg e given the jury at the end of

the case. The jury

found in favor of the defendant, as wehave said, and there has been a ti mely appeal f rom the jud

gment e ntered on the ver

dict.

II

A

We turn first to M r. Brow n’s “dir ect evid ence” a rgumen t. The gist of the argument is that the McDonnell Douglas para digm rel ates only to case s where there is no direct evidence of wrongful discrimination; a p la intiff who has presented “some direc t evi dence o f age d iscrimina tion,” this court has said, “. . . need no t make out a prima faci

e case under the McDonne ll Dougla s framework.” LaPointe v. United Autoworke

rs Local 600 , 103 F.3d

485, 488 n.3 (6th Cir. 1996). Mr. Brown submits that he pre se nted direct evidence of discriminationwhen he testified that area manager

Ellison told him he was no t getting

the promis ed promot

i on because vice president Kowlzan “wanted y ounger people . . . .”

Alth ough Mr. B rown

char acte rize s hi s testimony as direct evidence of discriminatory intent, our pre cedents suggest that it may be more a

ccurate to characterize it as circumstantial evidence. See Hopson v. Daiml er Chrysler Corp. , 306 F.3d 427, 433 (6th Cir . 2002) (e vidence that o ne of the plaintiff’s supervisors held the opinionthat r ace was a factor in theNo. 01-5864 Brown v. Packaging Corp. of America 7

1 It is worth noti ng that t he Supreme Co urt did not int e nd its disc uss ion to limit

the ways i n which a plaint if f c oul d es tab li sh a

pri ma facie case. As the Court explained in a f ootnote, “[t]he facts nec essarily will vary i n [dis crimi nati on] ca ses, and the specifi cation above of the pri ma facie proo f required . . . is not necess ari ly appl icable in every respect to differ ing fact

ual si tuat ions. ” McDonnell Dougl as , 411 U.S. at 802 n.13.

To illustrate the p oint, we invi te the reader t o suppose tha t in the case at bar the re had been a wea lth of cir cum stanti al e viden ce of discriminatory

animus based on Brown’s ag e, but to suppose f urther that Syny ard had n ever ta ken an y steps to fill the temp orar y forem an’s jo b afte r wit hdrawing the of

ferto Bro wn. B rown might w ell have been able to make out a case for the jury , under this hypothesis, notwithst anding the absence of the f

ourth el ement i n the McDonnell Dougl as para dig m. defendant’s decision not to promote the plaintiff was not direct evidence of discrimination where the s upervi sor had no involvement

in the decision and did not reveal the basis for

his opinion). Ellison had no involvement in t he deci sion not to promote Brown, and Ellison did not reveal the bas is for his allege d insight

into Kowlza

n’s thoug ht proce sses.
We agreethat the te stimony inquestion d

oes not fa ll within any of the four categories of proof described by

the McDonne ll Douglas Court in discussing the establishment of a prima facie
caseof d iscrimination. 1 On the other hand, the fact that the testimony fell outside the McDonne ll Douglas paradigm does notdetract from the fact that Brown also presented evidence that fit the para digm exactly. In other word s, Brown produced evidence that (1) he was over the a ge of 40, (2) he accepted a job for which he was qualified, ( 3) the job offer was withdrawn

despite h is qualifications, and (4) the position was ultimately filled by

a much young er

person. The evidence of Kowlzan’s alleged bias tend ed to stre ngthen Brown’ s prima fac ie case, bu

t it certa inly did not re

nder the se four e lements irrelevant – and Brown would have had a prima fa cie cas e under McDonnell Douglas even without the evidence of what Ellison was supposed to have said about Kowlzan. 8 Brown v. Packaging Corp. of America No. 01-5864

2 Burdine , a sex d iscrimina tion ca se de cided in 198 1, was als o brought under Title VII. If an instruction based on Mc Donnell Douglas could pas s muster without the circumstantial evidence involving Ellison,
we are not persuaded

that introduction of the Ellison evidence would necessitate a

revers al – at lea st

as long as the charge a s a whole gave the jury

to understand that its fi rst tas k was to decide whether Packaging Corpora tion of America had been shown, by a preponde rance of the ev idence, to have discriminated

against the plaintiff because of his being at

least 40 years old . The cou

rt’s cha rge did that, as we read i

t.

B

T urning to Mr. Brown’s second argument – the a rgumen t that it was c onfusing to instruct the jury on the details of the framework

erected by

the Supreme Court in the McD onnell Douglas case –

I start with the observation that there was no jury (and thus no jury cha

rge) in McDonnell Douglas itse lf

. Decided by the Supre me Court in 1973, McDonnell Douglas
was a race discrimination case brought unde r Title VII

of the Civil Rights Act of 19 64. 2 Not until e nactmen t of the Civil Rights Act of 1991 did Congr ess provi de for ju

ry trials in Title VII cases. Se e 105 Stat. 1072, 42 U .S. C. § 1981a. Prior to that time a

suit under

Title VI I wa s treate d as a suit

in eq ui ty,
a typ e of cas e historic ally tried by t he co ur t w it ho ut a j ur y. See In re Lewis , 845 F.2d 624, 626 n.1 (6th Cir. 1988).

The posture in which the McDonnell Douglas case reached the Supreme Court may be outlined a s follows. The district court had dismissed onjurisdictional grounds a claim asserted by the plaintiff under § 703(a)(1) of the 1964 Civil Rig

hts Act. The Eighth Circuit had reversed the dismissal and attempted, inthe opinion it published, to set forth the standards that would govern the district court’s adjudication of the claim on remand. The Supreme Court granted certiora ri“[i]n order to clarify the standards governing the disposition of an actionNo. 01-5864 Brown v. Packaging Corp. of America 9

challenging

employment discrimination .

. . .” McDonne ll Doug las , 4 11 U.S. at 497-98. “The critical issue,” as the Supreme Court explained, “. . . conce rns the order and

a llocation of proof

in a priva

te, non-c lass-action chal l engin g employment

discrimination.” Id . at 800 (emphasis supplied).

The “order and

al location of proof” are not matters for whichjuries ar

e respon sible – and, as the First Circuit pointed out i n a leading case decided six y ears after McDon nel l Douglas , the McDonnell Douglas opinion “was not written as
a p rospective jury c

harge . . . .” Loeb v. Textron, Inc. , 600 F.2d 1003, 1016 (1st Cir. 1979). Heavi ly f reighted with technical legal language (“p rima facie case,” e.g. ), the McDonne ll

Douglas op inion was written for an audience of judges and lawye

r s. “[T]o read [the opinion’s] technical aspects to a jury,” the Loeb court said, “. . . will add little to the juror’s und erstan ding of the case and, even worse , may lead jurors to abandon their own judgment and to seiz e upon poor

ly understood

legal i sms to decide the ultimate question of discrimination.” Id

. Cf. Kitchen v. Chippawa

Valley Sc hools , 82 5 F.2d 1004, 1012 (6th Cir. 1987), where we quoted thi s passag e from Loeb with appr oval.

Ido not mean to sugg est that there ca n never b e a case

in whichthe trial court wil l have discretion to use the framework of McDonnell Douglas as a gu ide in dra fting pl ain-English instructions to the jury. See Rowlett v. Anheuser Bush, Inc. , 832 F.2d194, 200 (1st Cir. 1987). Obviously, however, i t remains the resp onsibility o f the judge to determine whether the plaintiff has presented a prima faci e case capable of withstanding a motion for summary judgmen t o r a directed verdict – and the First Circuit has made it very clear that “the term‘prima facie case’ need ne ver be mentioned to the jurors.” Loeb , 600 F.2d at 1016. Where there is a dispute as to whether the employer has me t its burden of ar ticul ating a nondiscriminatory

reason f

or the challeng ed emplo ym ent action, similarly, “ it will be for the judge to decide whether defendant has stated a legitimate reason with such specific ity as to require plaintiff to prove it to be a pretext.” Id . n. 16. 10 Brown v. Packaging Corp. of America No. 01-5864

3 In Cronic h v. Wayne County Communit y College , 874 F. 2d 359, 366 (6th Cir. 1989), we re mark ed, citing Kitchen , that “[a] n in str ucti on incorporating [the shifting b urde n of pr oof sta nda rds ar ticulated in McDonnell Dougl as and Burdine ] has been appr oved but not abso lutely require d by thi s court .” W hat the court act ually did i n Kitchen , however,

was uphold as “not erroneo us” a jury charg e cha llenged by the a ppe llants prec isely beca use it “

fail ed to instruc t the jury o n the shifti ng bur de n of proof requ ireme nts [of McDonnell Dougl as and Burdine ].” Kitchen , 825 F.2d at 1012 and 1011 (empha sis suppli ed). And i t hardl y const itu tes approval of

instructions parroting t he language of McDonnell Dougl as to say that such i nstructi ons “wi ll add li tt le t o the juror ’s under standin g of the case and, even worse, may lead jurors to abandon their own judgment and to sei ze upon poorly underst ood legali sms to deci de the ul timat e quest ion of

discri minati on.” Id. at 1012, quoting Loeb , 600 F. 2d at 1016. The Sup reme Court has never rejected Loeb ’s gloss on McDonne ll

Douglas . Neither has the Sixth Circuit. In o u r Kitchen opinion, on the co ntrar y, after qu otin g the pa ssage from Loeb set

forth above, we declared that “a jury instruction will not automa

tically be erroneous simp ly

because it does not precise ly follow the legal niceties of McDonnell Douglas and Burdine .” Kitchen , 825 F.2d at 1012. 3

I n re Lewis , 845 F.2d

624 (6th Cir . 1988), r

eprese nts th i s circuit’s strongest endorsement of the viewtaken by

the Firs t Circuit in Loeb . The Lewis case arose prior t o the 199 1 legislation

th at p rov id ed f

or j ury t ria ls in Tit le V II

ca ses, and the portion of the appeal in Lewis tha t is r elevant here de alt with jury instructions on a rac e discrimination claim brought under Michigan’s Elliott-Larsen Civil Rights Act. Michig an’s stand ar d jury instructions, which the district court had use d after rejecting a request for a McDo nnell Douglas- type instruction, “deliberately

eschewed” th e McDonnell Douglas model. The Michigan Supreme Court Committee on Jury Instr uctions, which drafted the instruction at issue in Lewis (II Michigan Standard Jury I

nstructions 2d § 105.04 (q uot ed at 845 F.2d 634)), quoted the languag e of Loeb in explaining why the committee had purposel y steere d clear of the McDonne ll Douglas formulation: a McDonnell Douglas instructi on, said the committee , would “‘ add little to the juror’s understandingNo. 01-5864 Brown v. Packaging Corp. of America 11

of the ca se and, e

ven wors e, may

lead jur ors to aba ndon their
ownjudg ment a nd to s eize

upon poor

ly u nderstoo d legal isms to decide the ultimate question of discrimination.’ . . .” Id.

This c ourt agree d. Holding that ther

e was no e

rror in rejecting the McDonne l l Douglas instruction tendered by the defendant at the time

of trial, we voiced a clear prefere nce for the instructions that eschewed the McDonnell Douglas model:

“Weagree

with th e Committee on Jury Instr uctions. Rather thanconfuse the jurors with legal definitions of the burdens of proof, persuasion and production and how they shiftunder McDonne ll Dougl as , we find that the above instruction was a clear and pre ferabl e statement of the law. We therefore find no errorin the district court’s decisionnot to give defendant’s Proposed I nstruction No. 4.” Id.

Other courts of appea

ls have lik

ewisefollowed Loeb ’s lead. See, e.g ., Cabrera

v. Jaka bovitz , 24 F.3d 3 72, 380 (2 d Ci r

. 1994) (bemoaning the fact that “law ye rs are s till prone

to include in requested jury c harges languag e that was written by appella te courts in the context of bench trials – language that is at best irrelevant, and at worst misleading to a jury ”); Sharkey v. Lasmo (AUL LTD.) , 214 F.3d 371, 374 (2d Cir

. 2000) (“We ag

ree tha t juries sho uld not be charged on the McDonne ll

Douglas bur dening-shif

ting fr amework ”); Gordon

v. New York City Bd. of Educ. , 232 F.3d 111, 118 ( 2d Ci r

. 2000) (“The jury

. . . does not

need to be lectured on the concep ts that guide a judge in dete rmining whether a case s hould go to the jury

”); Mullen v. Princess Anne Volunteer Fire Co., Inc. , 85 3 F.2d 1130, 1137 (4th Cir. 1988) (burdenshifting instructions “are bey ond the function and expertise of the ju ry, which ne ed neve r hear t he term ‘ prima faci

e case’”); Walther v. Lone Star Gas Co. , 952 F.2d 119, 127 (5th Cir. 1992) (“I nstructin g the jur y on the eleme

nts o f a prim a facie case, presumpt

ions, and t

he shiftin

g burde n of proof

is unnecessary

and conf using”) ; Gehring v. Case Corp ., 43 F.3d 3 40, 343 (7th Cir. 1 994) (tr ial judg e acted

correctly i

n 12 Brown v. Packaging Corp. of America No. 01-5864

4 But see Lynch v. Belden and Co., I nc. , 882 F.2d 262, 26 9 (7th Cir. 1989) (“it was pr ope r for the d istrict cou rt to instruct the jury as to the Mc Do nne llDouglas/

Burdine formula for evaluat ing indir ect evidence”). declining“to walk

the ju ry through the paradigm established by McDonnell Douglas ”); 4 Williams v. Valentec Kisco, Inc

. , 964 F.2d 723, 731 (8th Cir. 1992) (reiterating that “the McDonne ll

Douglas ‘ritual is not well suited as a detailed instructionto the jury ’ . . .”); Costa v. Desert Palace, Inc. , 299 F.3d 838, 855 ( 9th Cir. 200 2) (en ba nc) (“i t is not normally appropr iate to introduce the McDonnell Douglas burdenshifting framework to the jury ”), aff’d , ___

U.S. ___, 123 S.Ct. 816 (2003); Messina v. Kroblin Transportation Systems, Inc. , 903 F.2d 1306, 1308 (10th Cir. 1 990) (“The McDonne ll Douglas inferences provide assistan ce to a judge as he addresses motions to di smiss, for summary judgmen t, and for directed verdict , but they

are of l i ttle r elevance to the jury ”); Dudley v. Wal-Mart Stores, Inc. , 166 F.3d 1317, 13 2 2 (11th Cir. 1999) (“We stress t

hat it is unnecessary

and inapp

ropriate to instruct the jury on the McDonnell Douglas analysis”).

But while most courts of appe als would a gree t hat it is normally inappropriate to instruct the jury onth e McDonne ll Douglas analysis, seldom is it held to be reversible error for a trial court to d

o so as long

as the ins t ruct ion summarizes the lawaccurately . See, e.g., Dudley, M es sina, Mullen, and Sharkey , all of which are cases where the giving of McDonne ll Dougla s i nstructions was held not to constitute prejudicial
error. The use o f such an instructi on was ci

ted as error i n Gordon , but there

were se veral groun ds for reversal in that
caseand we do

not know w

hether t he Se cond C ircuit panel would have been pre

pared to reverse solely

on the McDonne ll Douglas ground.

Inthe case

at bar, a

fter exam ining the instructi ons as a whole, we do not f

ind that th e pote nt ia l f

or pr ej ud ic e, if

an y, rise s to a level that would r equire r eversa l. The que stion “is notwhether

an instru ction was faultles s in ev ery re spect, butNo. 01-5864 Brown v. Packaging Corp. of America 13

whether the jury, considering

the instructions as a whole, was misled.” Messina , 903 F.3d at 1309. We do not believe that the jury was misled her

e.
C

Duri ng oral argument, counsel for Mr. B rown argued that the instruction quoted in Part I of this opinion – an instruction that included the words “it is not enough for plaintiff simply to prove or claim that the stated reasons for

PCA’s act

ions with regard to plaintiff were not believable or a re no t the true
reasons for the actions” – adopted the “pretext-p lus” theory rejected by t he Supre me Court in R eeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000). This argument
was not presented to the district court, nor was it mentione d in Mr. Brown’s briefs on appea l ; accordingly , we need not address it. I f we were to address the argument, howe ver, we should have no hesit

ancy in say ing that it is without

merit.

The instr uction in question properly re

minded the jury that “plaintiff must always prove by a p repo nderance of the evidence that

he was discriminated against because of his age.” The in struc tion also told the jury that Mr. Brown ha d to do
more thanprove that the company ’s stated reason for its action
was a pretext. This was an accurate statement of

th e la w: “ It is not enough . . . t o dis believe the employe r; the factfinder must believethe plaintiff’s expl anati on of intentional discrimination.” St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 524, 519 (1993), as quoted in Reeves , 530 U.S. at 146-47. Even if the jur y in the case at bar di sbelieve d th e company’s explanation for

denying Mr. Brown

the promotion, the Reeves and St. Mary’s Honor Center ca ses t each, the jury

could not return a verdict for Mr. B rown unle ss it was prepared to draw the inference from all of Mr. Brown’ s evidence that the company wa s guilty of intentional ag e discrimination.

To be improper under Reeves , the instr uctio n wou ld have hadto tell the

jury that evid

ence of pretext must b e supplemented

by evidence

more extensive thanthat necessary 14 Brown v. Packaging Corp. of America No. 01-5864

5 U nder Rule 609(a), the credibili ty of a wi tness other than th e defendant in a crim inal trial m ay be at tacke d by e viden ce of h is convi cti on of a crime pu nish able by impri sonment i n excess of one ye ar (or regardl ess of

punish ment if

the cr ime invo lved dishon esty or false statem ent).

W ith respect

to convi ctions more than 10 y ears ol d, Rule 6 09( b) provid es as follows:

“Evidence of a convi ction under this rule is no t adm issible if a period of more than t en years has el apsed sinc e th e dat e of the conviction . . . unless the court determ ines, in t he i nter est s of just ice, tha t t

he proba tiv e valu e of t he conv ict ion s upport ed by spec ifi c facts and circum stance s substa ntially outw eighs its prejudici al effect. However, evidence of a conviction more than 10 ye ars old . . . is not adm issible un less the p rop one nt gives to the adve rse pa rty sufficient ad vanc e written n otice o f intent to

use such evi dence to provi de the ad ve rse pa rty with a fair opp ortun ity to con test the use of such evide nce.” to support the prima facie case described in McDonne ll Douglas

. The instruction given here told the jury no such thin g.
III

A

Inhis next assignment of error, Mr. Brown say s that “[t]he districtcourt committed reversible error in admitting evidence of Mr . Brown’ s 12 y

ear old a rson conv iction to im

peach h is credibility.”

But impea

chment of credibi lity

pursuant to Rule 609, Fed. R. Evid., 5 was not the only basis on which the districtcourt decided to admit evidence of the conviction. As the court pointed out during the pretrial confere nce at which Brown’s motion in limine wa s d en ie d, th e j ur y was goin g to hear about the arson convict ion in any event, the c ompany havingdeclar

ed its inte nt to show that the conviction was one o f th e reasons Brown was not promoted. The district court ruled that the company c ould use the e v idence for either purpose or both pur

poses.No. 01-5864 Brown v. Packaging Corp. of America 15

As far as the impeachment purpose is concerned, the district court satisfie d itself

that the advance written notice required by Rule 609(b) had been

given. The court obviously thought that the “prejudicial effect” spoken of in Ru le 609(b) would be minimal, given that the evidence could be put before the jury anyway for a purpose having nothing to do with Rule 609.

The district court’s conclusion did not represent an abuse of discretion, as we see it. In any event, we are satisfied that the decisionto admit

evidence of Mr. Brown’s conviction did not result in substant ial prejudice. The challenged ruling thus provides no ground

for reversal. See United States v. Sloman , 909 F.2d 176, 180-81 (6th Cir. 1990).

B

Fi na ll y, Mr. Br own mainta ins that ev

idence o f David Ellison’s misd e meanor c riminal tr espass c onviction

should have been admitted for the limitedpurpose of showing that the company’s

professed relianceo n Mr. Brown’s arson convictionas a reason for deny ing Brown

the p romised promotion was a

pretext for ag e discrimination. If Ellison suffered no adverse employ

ment action as a result of pleading to a misdemeanor charge, Brown’s lawy er wanted the jury

to infer, the denial of a promotion to Mr. Brown must have been attributa ble to so met hing other than his arson conviction. Brown submits that the court’s decision to exclude the Ellison evidence was reversible err or.
We disagree. The district court relied hea vily on thefac t that the deci sion not to promo te Brow n occurr ed prior to Ellison’s conviction. Ellison was not promot ed follow ing his

m i sdemeanor

convicti on, moreover, but s imply remaine d in the job he hel d before

the convi ction, jus t as Brow n himself did. Under th ese cir

cumstanc es, and given the disparity in the seriousness of the offenses, Ellison’s conviction wa s pret ty thin gruel as evidence of pre

text. The court’s exclusion of the misdemeanor

convicti on was not

an abuse of discretion, in our opinion, a nd we do not think it wa s prejudi cial in an y e vent. 16 Brown v. Packaging Corp. of America No. 01-5864

AFFIRMED

.No. 01-5864 Brown v. Packaging Corp. of America 17

1 Th is concurring opinion, which Ju dge Haynes joi ns, cons tit utes the maj orit y view r egarding the us e of th e McDonnell Dougl as burdenshifting test in ju ry instructio ns.

____________________ CONCURRENCE

____________________ CLAY, Circuit

Judge, concurring. Although I agree with the outcome reache d in this case, as well as much of the reasoning expressed in the lea d opinion, I

writesepara

tely to express

my disagre e ment

with Part II .B of the lead opinion, which seeks to discourage district

courts from utilizing the burden-shifting test enunc iated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 973) whe

n giving jury instructi ons. 1

Or di na ri ly, a district court s h ould give a requested jury instruction when

such instruction offers a correct statement of the law and is not irrelevant, redundant, o r c onfusing. See King v. Ford Motor Co., 209 F.3d 886, 897 (6th C ir. 2000) (holdin g that the “district court had discretion to instruct the jury in any mann er it de emed appropriate , as long as it
correctly stated [the appropriat e] substa ntive law, instructed on the issues relevant to the case at hand, and did not mislead

the jury”); Kitchen v. Chippewa ValleySchs., 825 F.2d 1004, 1011 (6th Cir. 1987) (“A judg m ent can be reversed if the instructi o ns, viewed as a whole, were confusing , misleading and preju dicia l.”) ( citi ng DSG Corp. v. Anderson, 7 54 F.2d 678, 679 (6th Cir. 1985)). No one contests that the McDonne ll Douglas burden-shifting test offers a corre ct description of the prima facie

case required to establish circumstantial evidence of employment discri

minat ion. Moreover, the test is not irrel evant , redu ndant , or co nfusi ng.
Ce rt ai nl y, this Court has never f o rbidden the use of the McDonne ll

Douglas test. In Kitchen, the issue was whether the district court committed reversible error in re f using to 18 Brown v. Packaging Corp. of America No. 01-5864

2 Actu ally, some of t

he lead opin ion’s cit ed cases, lik e Kitchen and Lewis, reject ed the not ion th at the burden- shif tin g framew ork is a necessary c omp onent of jury i nstructi ons in an employment disc rimi nati on case, but the cases did not expressly prohibit the frame work ’s use. These cases mer ely pr ovide some dict a sugges tin g that the bu rden -shifting ap pro ach is co nfusing to expla in to juro rs. See Loeb

v. Textro n, Inc

., 600 F.2d 1 003, 101 6 (1st Cir. 1979) (acknowl edging t hat

“ the subtleties of M cD onne ll Douglas are c onfu sin g” f or judges and j uries and that “to read its technica l aspec ts to a jury [may confus e a juror],” but then stating that the use of McDonnell Dougl as is work able because “ we do not equate use of

M cD onne ll Do uglas w ith a req uirem ent that the full formu lat ion be read in haec verb a to the jury”); see also G ehring v. Case Co rp., 43 F.3d 34 0, 343 (7th Cir. 1994) (rejecting the plainti ff’ s argument instruct a jury in a re

tal iation case, brought under Michiga n statelaw, on the burden-shifting test. This Court decided that the districtcourt did not err “because the jury ’s proper concern was with the ultimate question of retaliation and not with the potentia lly confusin

g shiftin g of evidentia

r y burdens.” Kitchen, 825 F.2d at 101 2. But affirming the district court’s decision not to give an instruction cannot be equa ted with reversing a district court’s decision to give the instruction. Kitchen’s comment about potential confusion amo unts to no
more than dicta. Similarly, in In re Lewis

, 845 F.2d 624, 634 (6th Cir. 1988) , this Court affirmed the district court’s decision notto give the McDonnell Douglas instruction. The Court made no finding that

giving a McDonnell Douglas instruction would have been legally

erroneou s. It s h ould not be gleaned fromeither o f these c ases tha t a district courterrs i n givi ng a McDonne ll

Douglas instructi on on th e ba sis of its a lleged ly confusingnature, since holding that an instruc tion is unnecessary

or superfluous is quitedifferent from holding that
aninstruction is actually detrimental to the jury ’s understanding of what it is to decide.

I n determining that juries are not sufficiently sophisticated to understand the Mc

Donnel l Douglas test, the lead opinion essentia lly relies on dicta from other circuits di sapp roving of including the McDonnell Douglas test in jury instructions, but de clining to reverse on such ground s. 2 Sharkey v . Lasm oNo. 01-5864 Brown v. Packaging Corp. of America 19

that he was entitled to a burde n-s hif ti ng i nst ruct ion ); Williams v. Valentec Kisc o, I n c., 964 F.2d 723, 731 (8th Cir. 1992) (aff irmin g the di stri ct
cou rt’s ref

usalto i nclu de the burden-shift ing test in it s jury i nstructi ons); Co sta v. Desert

Palace, Inc. , 299 F.3d 83 8, 854-55 (9th Cir. 2002) ( en banc ) (men ti oni ng, in dic ta, th at “i t i s no t n orma ll y appr opr iate to introduce the M cD onne ll Do uglas b urde n-shifting fram ewo rk to the jury,”

as part of a general dis cus si on about the relati onship between the McDonnell- Douglas te st and t he s in gl e- and mi xed- mo tive analy ses), aff’d, – U.S. –, 123 S .Ct. 2148, 2003 W L 2131 0219 (June 9 , 2003). (AUL Ltd. ), 214 F.3d 371, 374 (2d Cir. 20 00); Dudley v. WalMart Stores, Inc. , 166 F.3d 1317, 1321-22 (1 1th Cir. 1999); Cabrerav. Jaka bovitz, 24 F.3d 372, 380-84 (2d Cir. 1994); Walther v. Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir. 1992); Messina v. Kroblin Transp. Sys. Inc., 903 F.2 d 1306, 1308-09 (10th Cir. 1990); Mullen v. Princess Anne Volunteer Fire Co., Inc. , 8 53 F.2d 11 30, 1137 (4th Cir. 198 8); see also Gordon v. NewYork City Bd. of Educ. , 232 F.3d 111, 118 (2d Cir. 2000) (observing that the inclusion of the M cDonn ell Do uglas test in the

jury instructi ons was e

rroneou s b u t reversing on other grounds). Thelargely conclusory ra

tionales detailed in those cases are less than persuasive.

Two main reasons generally are advanced in suppo rt of excluding the McDonne ll Douglas test from jury

instructi ons. The first rationa l e, based

on the ide a that jud

ges sho uld only
use language that jurors can unde rstand, implies that l ay persons do not eas ily u

ndersta nd such te

rms as “ prima f acie case,” “shifting burden,” and “burden of proof.” See Cabrera, 24 F.3d at 381; Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979); Gerrilyn G. B rill, Instructing the Jury in an Employment

Discrimination Case, 1998 F ED

. C TS

. L. R EV . 2, 4.5-4.6 (March 1998). Yet , as the partial dissent in Loeb noted, “[t]he diffi cul ties involved in instructing a jury in a products liability case, wher

e liability is alternately

premised
onthe thre e theori es of stri ct liabili ty, n egligence, and
warran ty are no less complex than the shifting burdens outlined in McDonnell Douglas.” Loeb, 600 F. 2d at 1 024 (Bowne s, J., concur

ring an d dissentin

g). Simi la rl y, 20 Brown v. Packaging Corp. of America No. 01-5864

complicated

te rm in ol og y aboun ds in such areas of law as medical malpractice. See, e. g., Joseph H. King, Jr., Reconciling

the Exer

cise of J udgment and t he Objective Sta ndard of Care in Medical Malpractice, 52 O KLA

. L

. R EV

. 49, 69-70 (noting the p o tential c onfusion o f “best ju dgment” lang uage in jury

instructi ons for me dical mal practic e la

wsuits)

. Yet courts have not jettisoned these frameworks from jury instructions on the theory that juries ar e incapable of comprehending

sophisticated nomenclature . I ndeed, no legitimate distinction has been asserted between the products liability and medical malpractice con t exts and the present context of employ

ment discr

imination. Thus, if a

jury is capable of understanding

th e terms used in contexts such as those of products liability and medical malpr actice, then there is no a ppa rent re ason why

a jury should not b e able to understand

the terms u sed in the employment discrimination context. Moreover, the notion that juries are too easily confused by
suc h termi nology is unexplained and unprove n. The cases
a dvancingthis viewpoint do not cite any empirical data i n drawingthe conclusion that juries are not suffic iently capable of under stand ing McDonne ll D ouglas. The First Circuit’s Loeb opinion was released not terribly long after McDonne ll Do uglas was decided, and it reflects the court’s own confusionas to what constituted th e settled law of shifting burdens in an empl oym ent discrimination case. Indeed, the First Circuit backe d away

from its e arlier m

isgiving s, acknowledging

that the Loeb decision

was influ

e nced by its own confusion:

Alth ough this framework was c onsidered c omplicated and cumb ersome when it wa s first used i n McDonne ll-D ouglas, with repeated use courts have become more com fortable

with it, both for their own use inruling on Title VI

I cla ims and for the jury

's use in ruling on intentional di scrim ination. . . . It i s a stra ight forward

way of e

xplaining how to considerNo. 01-5864 Brown v. Packaging Corp. of America 21

whether there i s int entional discrimination in situations where s uch discr imination i s not likely

to be over

t.
Rowlett v. Anheuser-Busch, Inc. 83 2 F.2d 194, 200 (1st Cir. 1987) (citation omitted), abrogated on other grounds by Iacobucci v. Boulte r, 193 F.3d 14 (1st Cir. 1999). Thus, the First Circuit, w

hich was the first to ques tion the wholesale importation of McDo nne ll Douglas into jury instructi ons in Loeb, backed off and embraced its use just a fe w years later.

When atrial court understands the law, it should be able to
e xplai nthe law to a jury with re lative ease. Trial courts are muchmore comfortable with McDonnell Douglas than the y were twenty

yearsago when the Supreme Court was still roadmapping many burden of p roof issues in employment discrimination law. The concerns that were prese nt during the time Loeb was decided have large ly aba ted. Even assuming that a jury might e

xperience difficulty unde

rstanding an aspect of the burde

n-shiftin g structure, it c an – and presumab ly w ill – request clarif

ication f rom the c ourt.
The other most frequ e ntly cited rationale is that once the
casehas been

tried and is about to be submitted to the jury, the McDonne ll

Douglas analysis is no longer relevant b ecause it is the function of the trial judge, not theju ry, to engage in the burden-shiftinganaly

sis. That i s, it

is argu ed that if the ju dge determines that the plaintiff has not made out a prim a fa cie case, the case is dismissed by way of a direc ted verd

ict in defendant’s favor; if the plaintiff has established a prima faci

e caseand the defendant has ar ticu lated no legitimate nondiscriminatory

reason for its adv erse employment action, judgment is rende red for the plain tiff; and if the pla intiff has established

a prima faci

e c as e and the defendant has articulated
a legitimate non-discriminatory reason, the jury

considers only whether the articulated reason is pretext for unlawful discrimination. See, e.g., Debora h C. Malamud, The Last 22 Brown v. Packaging Corp. of America No. 01-5864

3 It is impo rtant to note tha t t he par ti es’ shi ft ing burden s of product ion do not form the ent ire ty of a jury ’s i nquiry , whi ch is, at i ts core , whet her it fi nds by a preponderanc e of th e evidence that the em ploye r intention ally discri minatedagainst th e plain tiff. United Stat es Post al Ser v. Bd. of Go verno rs v. Aikens, 460 U.S . 711 , 775 (19 83)

. Neve rtheless, eleme nts of a prim a fac ie case frequently are stil l relevant

after t he case has go n e to the jury. For instance, when an i ssue of fact remains as to one or more of the elem ents in a plaintiff’s pr ima facie case, it is sometimes necessary to ask the j ury, usua lly as part o f a spec ial verd ict form , to e ngag e in factfi nding on that parti cular element . Even t he Loeb court ha d acknowledged that McDonnell Dougl as would contin ue to be re levant in this scena rio. Loeb, 600 F.2d at 10 16. Minuet: Disp a rate Treat ment Afte r Hicks, 93 M ICH

. L. R EV

. 2229, 2323 (1995). 3

For thirty y ears, the McDonnell Douglas analysis has play ed
animportant role in the f ramework of employ

ment discriminationlaw, and that analy sis might assist a ju ry i n understandingthe disput

e it has b een asked

to resolve. For instance, if

th e j ur y i n this c ase had simply bee n told, “Packaging

Corpora tion say s that it de cided not

to promo t e Mr. Brown b ecause

of his arson conviction and an incident at work involving

nude phot

ographs o f his w ife; you decide whether you think they

are lying and that their real reason was age discriminati o n (which you may infer if you be lieve four certain facts),” the jury

might have wondered why

the inquiry
was framed

inthat way and f

ocused only on that aspe ct of the trial. Only an explanation of t he parties’ initial respective burdens would she d furthe r light on the re asons for the inquiry’sfocus. Thus, even if the giving of the McDo nnell Douglas test is not required, it is often bene ficia l in assisting
a j ury’s co mprehen sion of the issues it ha s been asked to resolve.

This is particu

larly true when one recalls the policy grounds underlying

the formulationof the McDonne ll Douglas test in the first pla

ce. As the partia

l disse n t in Loeb noted, the McDonne ll

Douglas te st sought to “accommodate both the strong policy re asons f

or allowing plaintiff to proceed on theNo. 01-5864 Brown v. Packaging Corp. of America 23

4 I adhe re to this v ie w notwithst anding language in Hicks, 509 U.S. at 510-11, that some commentators ha ve rea d as dampening ( or even eliminati ng) the relev ance of McDonnell Dougl as once th e employer asserts a legitima te exp lanatio n for its ac tions. See , e.g., Malamud, supra, at 232 4. Hicks should not be r ead as attempting t o supplant the Mc Do nne llDouglas burd en-shifting a nalysis at any st age of the lit igation. See W illiam R . Cor bett, Of Ba bies, Bath water, and Throwi ng Out Proof Struc tures: It is N ot Tim e to Je ttison M cD onn ell Dou glas, 2 E MPLOYEE R TS

. & E M P

. P OL ’ Y J. 361, 386-89 (19 98) (a rguin g that the cent ral ity of Mc Do nne llDouglas in emp loyme nt discrim inatio n c ases, an d its

re le vance in jury i

nstructi ons, remains aft er Hicks ). Unti l t he Su preme Court indic ates otherwi se, t he McDonnell Dougl as framework remains the driving force for

burdenof pr oof i ssu es i n cas es r est ing on circu mstant ial evidence. basis of a prima facie case and the f urther l ogical rea son that the employer wa s the person best able to exp lain legitimate
reasons for fail i ng to hi re (or firing) an otherwise qua lified person who was within the protected class.” Loeb, 600 F.2d at 1024 (Bownes, J., concu

rrin g and di ssenting

). Bea ring the se policy consideration s in mind, the Supreme Court has endorsed the no t ion that a

jury may infer dis criminat

ion if (1) it finds that the plaintiff has established the four ele ments of the prima faci

e case an d (2) it d isbelieves the employer ’s explanation for its adverse employ ment action(s). Reeves v. Sanderson Plumbing Prod s. , Inc., 530 U.S. 133, 147 (2000) (citing St . M

ary’s Ho nor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). 4 The policy

reasons do not disappear in the face of an employer’s

ability to rebut a pr ima fac ie case by off ering a legitimate, no n- di sc ri mi na to ry re ason for its action s. Thus, “[s]ome instruction to the ju ry on the pri

ma facie case is necessary for a fu

ll appre ciation o f what is i nvolv ed i n discr iminat ion cases.” Loeb, 600 F.2d at 1024 (Bownes, J., concurring and dissenting).

Ano ther problem with the lead opinion is that althoug h i t does not explicitly forbid district court s from giving the McDonne ll

Douglas instruction, it

impliedly attempted to put themon no tice tha t giving such an in struction

may place in jeop ardy the validity of a jury ’s verdict on appellate rev iew

. 24 Brown v. Packaging Corp. of America No. 01-5864

However, the lead

opinion doe s not explain

the circumstances under whicha jury ver

dict might be overturned because of the
use of the in struction, and when the verdict would not be overturned. Indee d, it

does not explain why the district court did not abuse its discretion in this case, an d it the refore provide s little guidance to district courts in deciding whether t o inc lude such an instruction. The likely r esult from such a holding is that many district courts might simply refuse to give the instruction, instead determining that eliminating the risk of havinga jur

y ve rdict overturned on appeal outweighs the benefit of providing a jury

with a fully dev eloped j ury instructionon the app licable e mploy ment dis cri mination law issues.

Sucha d evelopme

nt would be

unfortunate bec ause des cribi ng the burden-shifting paradigm often c an be beneficial in communicating to juries an u nde rstanding of employment

discrimination law. Speci f ically, as discussed above, the McD onnell Douglas test provides jurors with a fleshed-out

context for the purp ose of resolving the factual disputes pr es en te d b y th e case being considered. The risk of confusionshould be minimal or non exist ent wh en the judge explains to the jury

that McDonnell Douglas prov ides a backdr op to the jurors’ role as factfinders , and that their ulti ma te duty is to determine whether (1) the employe

r’s proffered legitimate reason for an adverse employment action
was pretextual and (2) the employe r’s true motive for taking the adve rse action was illegal discrimination. See, e.g., Mullen

, 853 F.2d at 1137 (finding no error in the jury instructions where the trial court directed the jury to focus on the central issues of whether the employ er’s asserted reas o n was pretext for employment discr imination).

The lead opinion is correct in stating that “it remains the responsi bility of the judge to determine whether the plaintiff has present

ed a prima facie

case ca pable of wit hs tandi ng a motion of summary judg

ment or a directed

verdict.” However, this does not mean that the McDonne ll Dougla s instruction does not provid

e a usef ul purpose , or that it is superfluous orNo. 01-5864 Brown v. Packaging Corp. of America 25

confu sing. Indeed, the aver age juror i s not incapable of under stand ing su ch lan guage as “ prima faci

e case” w hen it is properl y explained. As in any jury trial, it is the resp onsibility of the judg e to defi

ne lega l terms an d to clarify a

ny subsequent confusion during deliberations, as requested by the jury at the time. “So long as a trial court does not fall into the mistake of placingupon defendant an improper burden, its commenting
onshifting

burdens i mports no error.” Loeb, 600 F.2d at 1024 (Bowne s, J., concur

ring an d dissentin

g). The refore, the district court’s use of the McDonnell Douglas test with its burdenshifting paradigm was an appr opriatetool in instructing the ju ry.