*

The Honorable William J. Haynes, Jr., United States District Judge

for the Middle District of Tennessee, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0257P (6th Cir.)

File Name: 03a0257p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

BOBBY BROWN,

Plaintiff-Appellant,

v.

PACKAGING CORPORATION OF

AMERICA,

Defendant-Appellee.

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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 

Before: NELSON and CLAY, Circuit Judges; HAYNES,

District Judge.*

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

_________________

COUNSEL

ARGUED: Victor I. Fleitas, Tupelo, Mississippi, for

Appellant. Marcus M. Crider, WALLER, LANSDEN,

DORTCH & DAVIS, Nashville, Tennessee, for Appellee.

ON BRIEF: Victor I. Fleitas, Tupelo, Mississippi, Jim D.

Waide, WAIDE & ASSOCIATES, Tupelo, Mississippi, for

Appellant. Marcus M. Crider, WALLER, LANSDEN,

DORTCH & DAVIS, Nashville, Tennessee, Mark E.

Stamelos, KING & BALLOW, Nashville, Tennessee, for

Appellee.

NELSON, J., announced the judgment of the court and

delivered an opinion, in which CLAY, J. and HAYNES, D. J.,

concurred except as to Part II B. CLAY, J. (pp. 17-25),

delivered a separate opinion, in which HAYNES, D. J.,

concurred, which constitutes the opinion of the court on the

issue discussed in Part II B.

_________________

OPINION

_________________

DAVID A. NELSON, Circuit Judge. This is an appeal from

a judgment entered on a verdict for the employer in an age

discrimination case. The main issue we are asked to decide is

whether the district court committed reversible error by

including instructions in its charge to the jury that replicated

the prima-facie-case and “burden-shifting” guidelines set forth

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

and Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248 (1981). 

Unlike my colleagues on the panel, I am inclined to think

that trial courts should be discouraged from parroting the legal

technicalities of McDonnell Douglas and Burdine in charging
No. 01-5864 Brown v. Packaging Corp. of America 3

juries. Whether or not the inclusion of McDonnell Douglas

verbiage in jury instructions may create an unnecessary risk

that the jury will be confused, however, none of the members

of the panel is persuaded that any potential for confusion in the

case at bar was sufficiently great to necessitate a reversal here.

Accordingly, and because we are not persuaded by the

plaintiff’s remaining assignments of error, we shall affirm the

challenged judgment.

I

The plaintiff in this case, Bobby Brown, went to work for

the defendant, Packaging Corporation of America, in 1962,

when he was about 20 years old. In 1996 Mr. Brown was

promoted to a crew leader’s job. In that capacity he was

responsible for the operation of one of two large paper

machines at a plant in Counce, Tennessee. The promotion to

crew leader was based entirely on seniority and was mandated

by a collective bargaining agreement.

In 1999, when Mr. Brown was 57 years of age, plant

manager Michael Synyard offered him a promotion to the

position of temporary foreman. Brown accepted. The new

job, unlike the old one, was not covered by the collective

bargaining agreement. 

Although Synyard did not need anyone’s approval to

promote Mr. Brown, he mentioned his decision to Mark

Kowlzan, a vice president of the company. Kowlzan voiced

serious reservations about Brown, asserting that he “lacked

leadership” and pointing out that he had been convicted of

arson for burning down his house. (The company had fired

Brown at the time of the conviction, which occurred in 1989,

but subsequently rehired him under a threat of litigation.)

Kowlzan further told Synyard about an incident in which

Brown had shown photographs of his wife in the nude to

fellow employees at the plant – behavior that was not only

bizarre, but that violated the company’s sexual harassment

policy. Synyard had not known about either the arson

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

conviction or the photograph incident, and he testified at trial

that the information “dismayed” him.

Synyard promptly decided not to promote Brown after all,

and he instructed area supervisor David Ellison to have Brown

report for work on the next shift as a crew leader and not as a

foreman. When Brown asked what had happened to his

promotion, Ellison allegedly told him that Mr. Kowlzan

“wanted younger people and engineers to fill the job.” Ellison

testified that he never said any such thing.

Synyard met with Brown a day or two after the withdrawal

of the promotion. This time Brown was told he was being kept

on as crew leader because the man who was in line to succeed

him in that job was far weaker than Brown as far as experience

went. Synyard did not mention the arson or the nude

photographs, testifying later that “I thought it was very

humiliating and embarrassing, and I just didn’t see the need of

further embarrassing Bobby . . . .”

Synyard ultimately filled the temporary foreman’s slot by

promoting an employee named Jamie Mims. Mr. Mims was

40 years old. 

Aggrieved by his failure to get the promotion he had been

promised, Mr. Brown filed an age discrimination charge with

the Equal Employment Opportunity Commission. The

company submitted a response denying that Brown had been

discriminated against because of age and asserting that Mims

“displayed more initiative and exhibited better leadership

characteristics.” The response did not mention Brown’s

conviction for arson or the nude photograph incident.

Unable to conclude that a violation of the Age

Discrimination Act had been established, the EEOC closed its

file and notified Mr. Brown of his right to sue the employer

within 90 days of his receipt of the notice. Brown exercised

this right, filing an action in the United States District Court
No. 01-5864 Brown v. Packaging Corp. of America 5

for the Western District of Tennessee and demanding a jury

trial.

After denying a defense motion for summary judgment, the

district court denied a motion in limine wherein Brown sought

to exclude evidence of his arson conviction. The court granted

a motion to exclude evidence that David Ellison, the area

supervisor who first advised Brown that he was not being

promoted, had been convicted of a misdemeanor. (In August

of 1999 – after he had become an area supervisor – Ellison

pleaded no contest to a misdemeanor charge of criminal

trespass.)

When Brown’s case went to trial, the district court took

advantage of a recess to review its proposed jury instructions

with the lawyers. The proposed charge included five pages of

text adapted from the Supreme Court’s opinion in McDonnell

Douglas, 411 U.S. at 802-805. The language covered the four

McDonnell Douglas elements of a prima facie case, the

defendant’s burden of articulating a nondiscriminatory reason

for the challenged employment action, the plaintiff’s

obligation to prove that the proffered reason was a pretext, and

methods by which pretext may be shown. The court also

proposed to add the following caution:

“Remember, the ultimate burden remains at all times on

plaintiff to prove by a preponderance of the evidence that

he was discriminated against because of age; therefore, it

is not enough for plaintiff to simply prove or claim that

the stated reasons for PCA’s actions with regard to

plaintiff were not believable or are not the true reasons for

the actions. The reason for this is because plaintiff always

must prove by a preponderance of the evidence that he

was discriminated against because of his age. You must

determine whether plaintiff has proved that the reasons

given by PCA were a pretext for unlawful age

discrimination, and you may consider all the evidence in

making this determination.”

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

Counsel for Mr. Brown objected that the proposed

instructions were improper for two reasons. First, he

maintained, Brown was offering not only indirect evidence of

wrongful discrimination – the type of evidence dealt with in

McDonnell Douglas – but direct evidence as well. Second,

counsel argued, even where the evidence is purely indirect, it

is confusing for a jury to be 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 either argument, and the

instruction was incorporated without change in the charge

given the jury at the end of the case. The jury found in favor

of the defendant, as we have said, and there has been a timely

appeal from the judgment entered on the verdict.

II

A

We turn first to Mr. Brown’s “direct evidence” argument.

The gist of the argument is that the McDonnell Douglas

paradigm relates only to cases where there is no direct

evidence of wrongful discrimination; a plaintiff who has

presented “some direct evidence of age discrimination,” this

court has said, “. . . need not make out a prima facie case under

the McDonnell Douglas framework.” LaPointe v. United

Autoworkers Local 600, 103 F.3d 485, 488 n.3 (6th Cir. 1996).

Mr. Brown submits that he presented direct evidence of

discrimination when he testified that area manager Ellison told

him he was not getting the promised promotion because vice

president Kowlzan “wanted younger people . . . .” 

Although Mr. Brown characterizes his testimony as direct

evidence of discriminatory intent, our precedents suggest that

it may be more accurate to characterize it as circumstantial

evidence. See Hopson v. Daimler Chrysler Corp., 306 F.3d

427, 433 (6th Cir. 2002) (evidence that one of the plaintiff’s

supervisors held the opinion that race was a factor in the
No. 01-5864 Brown v. Packaging Corp. of America 7

1

It is worth noting that the Supreme Court did not intend its

discussion to limit the ways in which a plaintiff could establish a prima

facie case. As the Court explained in a footnote, “[t]he facts necessarily

will vary in [discrimination] cases, and the specification above of the

prima facie proof required . . . is not necessarily applicable in every

respect to differing factual situations.” McDonnell Douglas, 411 U.S. at

802 n.13.

To illustrate the point, we invite the reader to suppose that in the case

at bar there had been a wealth of circumstantial evidence of

discriminatory animus based on Brown’s age, but to suppose further that

Synyard had never taken any steps to fill the temporary foreman’s job

after withdrawing the offer to Brown. Brown might well have been able

to make out a case for the jury, under this hypothesis, notwithstanding the

absence of the fourth element in the McDonnell Douglas paradigm.

defendant’s decision not to promote the plaintiff was not direct

evidence of discrimination where the supervisor had no

involvement in the decision and did not reveal the basis for his

opinion). Ellison had no involvement in the decision not to

promote Brown, and Ellison did not reveal the basis for his

alleged insight into Kowlzan’s thought processes.

We agree that the testimony in question does not fall within

any of the four categories of proof described by the McDonnell

Douglas Court in discussing the establishment of a prima facie

case of discrimination.1 On the other hand, the fact that the

testimony fell outside the McDonnell Douglas paradigm does

not detract from the fact that Brown also presented evidence

that fit the paradigm exactly. In other words, Brown produced

evidence that (1) he was over the age of 40, (2) he accepted a

job for which he was qualified, (3) the job offer was

withdrawn despite his qualifications, and (4) the position was

ultimately filled by a much younger person. The evidence of

Kowlzan’s alleged bias tended to strengthen Brown’s prima

facie case, but it certainly did not render these four elements

irrelevant – and Brown would have had a prima facie case

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 discrimination case decided in 1981, was also

brought under Title VII.

If an instruction based on McDonnell Douglas could pass

muster without the circumstantial evidence involving Ellison,

we are not persuaded that introduction of the Ellison evidence

would necessitate a reversal – at least as long as the charge as

a whole gave the jury to understand that its first task was to

decide whether Packaging Corporation of America had been

shown, by a preponderance of the evidence, to have

discriminated against the plaintiff because of his being at least

40 years old. The court’s charge did that, as we read it.

B

Turning to Mr. Brown’s second argument – the argument

that it was confusing to instruct the jury on the details of the

framework erected by the Supreme Court in the McDonnell

Douglas case – I start with the observation that there was no

jury (and thus no jury charge) in McDonnell Douglas itself.

Decided by the Supreme Court in 1973, McDonnell Douglas

was a race discrimination case brought under Title VII of the

Civil Rights Act of 1964.2 Not until enactment of the Civil

Rights Act of 1991 did Congress provide for jury trials in Title

VII cases. See 105 Stat. 1072, 42 U.S.C. § 1981a. Prior to

that time a suit under Title VII was treated as a suit in equity,

a type of case historically tried by the court without a jury.

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 as follows. The district

court had dismissed on jurisdictional grounds a claim asserted

by the plaintiff under § 703(a)(1) of the 1964 Civil Rights Act.

The Eighth Circuit had reversed the dismissal and attempted,

in the 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 certiorari “[i]n order to

clarify the standards governing the disposition of an action
No. 01-5864 Brown v. Packaging Corp. of America 9

challenging employment discrimination . . . .” McDonnell

Douglas, 411 U.S. at 497-98. “The critical issue,” as the

Supreme Court explained, “. . . concerns the order and

allocation of proof in a private, non-class-action challenging

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

The “order and allocation of proof” are not matters for

which juries are responsible – and, as the First Circuit pointed

out in a leading case decided six years after McDonnell

Douglas, the McDonnell Douglas opinion “was not written as

a prospective jury charge . . . .” Loeb v. Textron, Inc., 600

F.2d 1003, 1016 (1st Cir. 1979). Heavily freighted with

technical legal language (“prima facie case,” e.g.), the

McDonnell Douglas opinion was written for an audience of

judges and lawyers. “[T]o read [the opinion’s] technical

aspects to a jury,” the Loeb court said, “. . . will add little to the

juror’s understanding of the case and, even worse, may lead

jurors to abandon their own judgment and to seize upon poorly

understood legalisms to decide the ultimate question of

discrimination.” Id. Cf. Kitchen v. Chippawa Valley Schools,

825 F.2d 1004, 1012 (6th Cir. 1987), where we quoted this

passage from Loeb with approval.

I do not mean to suggest that there can never be a case in

which the trial court will have discretion to use the framework

of McDonnell Douglas as a guide in drafting plain-English

instructions to the jury. See Rowlett v. Anheuser Bush, Inc.,

832 F.2d 194, 200 (1st Cir. 1987). Obviously, however, it

remains the responsibility of the judge to determine whether

the plaintiff has presented a prima facie case capable of

withstanding a motion for summary judgment or a directed

verdict – and the First Circuit has made it very clear that “the

term ‘prima facie case’ need never be mentioned to the jurors.”

Loeb, 600 F.2d at 1016. Where there is a dispute as to whether

the employer has met its burden of articulating a

nondiscriminatory reason for the challenged employment

action, similarly, “it will be for the judge to decide whether

defendant has stated a legitimate reason with such specificity

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 Cronich v. Wayne County Community College, 874 F.2d 359, 366

(6th Cir. 1989), we remarked, citing Kitchen, that “[a]n instruction

incorporating [the shifting burden of proof standards articulated in

McDonnell Douglas and Burdine] has been approved but not absolutely

required by this court.” What the court actually did in Kitchen, however,

was uphold as “not erroneous” a jury charge challenged by the appellants

precisely because it “failed to instruct the jury on the shifting burden of

proof requirements [of McDonnell Douglas and Burdine].” Kitchen, 825

F.2d at 1012 and 1011 (emphasis supplied). And it hardly constitutes

approval of instructions parroting the language of McDonnell Douglas to

say that such instructions “will add little to the juror’s understanding of

the case and, even worse, may lead jurors to abandon their own judgment

and to seize upon poorly understood legalisms to decide the ultimate

question of discrimination.” Id. at 1012, quoting Loeb, 600 F.2d at 1016.

The Supreme Court has never rejected Loeb’s gloss on

McDonnell Douglas. Neither has the Sixth Circuit. In our

Kitchen opinion, on the contrary, after quoting the passage

from Loeb set forth above, we declared that “a jury instruction

will not automatically be erroneous simply because it does not

precisely follow the legal niceties of McDonnell Douglas and

Burdine.” Kitchen, 825 F.2d at 1012.3

In re Lewis, 845 F.2d 624 (6th Cir. 1988), represents this

circuit’s strongest endorsement of the view taken by the First

Circuit in Loeb. The Lewis case arose prior to the 1991

legislation that provided for jury trials in Title VII cases, and

the portion of the appeal in Lewis that is relevant here dealt

with jury instructions on a race discrimination claim brought

under Michigan’s Elliott-Larsen Civil Rights Act. Michigan’s

standard jury instructions, which the district court had used

after rejecting a request for a McDonnell Douglas-type

instruction, “deliberately eschewed” the McDonnell Douglas

model. The Michigan Supreme Court Committee on Jury

Instructions, which drafted the instruction at issue in Lewis (II

Michigan Standard Jury Instructions 2d § 105.04 (quoted at

845 F.2d 634)), quoted the language of Loeb in explaining why

the committee had purposely steered clear of the McDonnell

Douglas formulation: a McDonnell Douglas instruction, said

the committee, would “‘add little to the juror’s understanding
No. 01-5864 Brown v. Packaging Corp. of America 11

of the case and, even worse, may lead jurors to abandon their

own judgment and to seize upon poorly understood legalisms

to decide the ultimate question of discrimination.’ . . .” Id.

This court agreed. Holding that there was no error in

rejecting the McDonnell Douglas instruction tendered by the

defendant at the time of trial, we voiced a clear preference for

the instructions that eschewed the McDonnell Douglas model:

“We agree with the Committee on Jury Instructions.

Rather than confuse the jurors with legal definitions of the

burdens of proof, persuasion and production and how they

shift under McDonnell Douglas, we find that the above

instruction was a clear and preferable statement of the

law. We therefore find no error in the district court’s

decision not to give defendant’s Proposed Instruction No.

4.” Id.

Other courts of appeals have likewise followed Loeb’s lead.

See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir.

1994) (bemoaning the fact that “lawyers are still prone to

include in requested jury charges language that was written by

appellate 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 agree that juries should not be charged on the

McDonnell Douglas burdening-shifting framework”); Gordon

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

2000) (“The jury . . . does not need to be lectured on the

concepts that guide a judge in determining whether a case

should go to the jury”); Mullen v. Princess Anne Volunteer

Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988) (burdenshifting instructions “are beyond the function and expertise of

the jury, which need never hear the term ‘prima facie case’”);

Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.

1992) (“Instructing the jury on the elements of a prima facie

case, presumptions, and the shifting burden of proof is

unnecessary and confusing”); Gehring v. Case Corp., 43 F.3d

340, 343 (7th Cir. 1994) (trial judge acted correctly in

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

4

But see Lynch v. Belden and Co., Inc., 882 F.2d 262, 269 (7th Cir.

1989) (“it was proper for the district court to instruct the jury as to the

McDonnell Douglas/Burdine formula for evaluating indirect evidence”).

declining “to walk the jury through the paradigm established

by McDonnell Douglas”);4 Williams v. Valentec Kisco, Inc.,

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

McDonnell Douglas ‘ritual is not well suited as a detailed

instruction to the jury’ . . .”);Costa v. Desert Palace, Inc., 299

F.3d 838, 855 (9th Cir. 2002) (en banc) (“it is not normally

appropriate 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. 1990) (“The McDonnell

Douglas inferences provide assistance to a judge as he

addresses motions to dismiss, for summary judgment, and for

directed verdict, but they are of little relevance to the jury”);

Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th

Cir. 1999) (“We stress that it is unnecessary and inappropriate

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

But while most courts of appeals would agree that it is

normally inappropriate to instruct the jury on the McDonnell

Douglas analysis, seldom is it held to be reversible error for a

trial court to do so as long as the instruction summarizes the

law accurately. See, e.g., Dudley, Messina, Mullen, and

Sharkey, all of which are cases where the giving of McDonnell

Douglas instructions was held not to constitute prejudicial

error. The use of such an instruction was cited as error in

Gordon, but there were several grounds for reversal in that

case and we do not know whether the Second Circuit panel

would have been prepared to reverse solely on the McDonnell

Douglas ground.

In the case at bar, after examining the instructions as a

whole, we do not find that the potential for prejudice, if any,

rises to a level that would require reversal. The question “is

not whether an instruction was faultless in every respect, but
No. 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 here.

C

During oral argument, counsel for Mr. Brown 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 actions with

regard to plaintiff were not believable or are not the true

reasons for the actions” – adopted the “pretext-plus” theory

rejected by the Supreme Court in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000). This argument

was not presented to the district court, nor was it mentioned in

Mr. Brown’s briefs on appeal; accordingly, we need not

address it. If we were to address the argument, however, we

should have no hesitancy in saying that it is without merit.

The instruction in question properly reminded the jury that

“plaintiff must always prove by a preponderance of the

evidence that he was discriminated against because of his age.”

The instruction also told the jury that Mr. Brown had to do

more than prove that the company’s stated reason for its action

was a pretext. This was an accurate statement of the law: “It

is not enough . . . to disbelieve the employer; the factfinder

must believe the plaintiff’s explanation 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 jury in the case at bar disbelieved the company’s

explanation for denying Mr. Brown the promotion, the Reeves

and St. Mary’s Honor Center cases teach, the jury could not

return a verdict for Mr. Brown unless it was prepared to draw

the inference from all of Mr. Brown’s evidence that the

company was guilty of intentional age discrimination.

To be improper under Reeves, the instruction would have

had to tell the jury that evidence of pretext must be

supplemented by evidence more extensive than that necessary

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

5

Under Rule 609(a), the credibility of a witness other than the

defendant in a criminal trial may be attacked by evidence of his

conviction of a crime punishable by imprisonment in excess of one year

(or regardless of punishment if the crime involved dishonesty or false

statement). 

With respect to convictions more than 10 years old, Rule 609(b)

provides as follows:

“Evidence of a conviction under this rule is not admissible

if a period of more than ten years has elapsed since the date of

the conviction . . . unless the court determines, in the interests of

justice, that the probative value of the conviction supported by

specific facts and circumstances substantially outweighs its

prejudicial effect. However, evidence of a conviction more than

10 years old . . . is not admissible unless the proponent gives to

the adverse party sufficient advance written notice of intent to

use such evidence to provide the adverse party with a fair

opportunity to contest the use of such evidence.”

to support the prima facie case described in McDonnell

Douglas. The instruction given here told the jury no such

thing.

III

A

In his next assignment of error, Mr. Brown says that “[t]he

district court committed reversible error in admitting evidence

of Mr. Brown’s 12 year old arson conviction to impeach his

credibility.” But impeachment of credibility pursuant to Rule

609, Fed. R. Evid.,5 was not the only basis on which the

district court decided to admit evidence of the conviction. As

the court pointed out during the pretrial conference at which

Brown’s motion in limine was denied, the jury was going to

hear about the arson conviction in any event, the company

having declared its intent to show that the conviction was one

of the reasons Brown was not promoted. The district court

ruled that the company could use the evidence for either

purpose or both purposes.
No. 01-5864 Brown v. Packaging Corp. of America 15

As far as the impeachment purpose is concerned, the district

court satisfied 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 Rule 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

decision to admit evidence of Mr. Brown’s conviction did not

result in substantial 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

Finally, Mr. Brown maintains that evidence of David

Ellison’s misdemeanor criminal trespass conviction should

have been admitted for the limited purpose of showing that the

company’s professed reliance on Mr. Brown’s arson

conviction as a reason for denying Brown the promised

promotion was a pretext for age discrimination. If Ellison

suffered no adverse employment action as a result of pleading

to a misdemeanor charge, Brown’s lawyer wanted the jury to

infer, the denial of a promotion to Mr. Brown must have been

attributable to something other than his arson conviction.

Brown submits that the court’s decision to exclude the Ellison

evidence was reversible error.

We disagree. The district court relied heavily on the fact

that the decision not to promote Brown occurred prior to

Ellison’s conviction. Ellison was not promoted following his

misdemeanor conviction, moreover, but simply remained in

the job he held before the conviction, just as Brown himself

did. Under these circumstances, and given the disparity in the

seriousness of the offenses, Ellison’s conviction was pretty

thin gruel as evidence of pretext. The court’s exclusion of the

misdemeanor conviction was not an abuse of discretion, in our

opinion, and we do not think it was prejudicial in any event.

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

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

1

This concurring opinion, which Judge Haynes joins, constitutes the

majority view regarding the use of the McDonnell Douglas burdenshifting test in jury instructions. 

____________________

CONCURRENCE

____________________

CLAY, Circuit Judge, concurring. Although I agree with the

outcome reached in this case, as well as much of the reasoning

expressed in the lead opinion, I write separately to express my

disagreement with Part II.B of the lead opinion, which seeks

to discourage district courts from utilizing the burden-shifting

test enunciated in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) when giving jury instructions.

1

Ordinarily, a district court should give a requested jury

instruction when such instruction offers a correct statement of

the law and is not irrelevant, redundant, or confusing. See

King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000)

(holding that the “district court had discretion to instruct the

jury in any manner it deemed appropriate, as long as it

correctly stated [the appropriate]substantive law, instructed on

the issues relevant to the case at hand, and did not mislead the

jury”);Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011

(6th Cir. 1987) (“A judgment can be reversed if the

instructions, viewed as a whole, were confusing, misleading

and prejudicial.”) (citing DSG Corp. v. Anderson, 754 F.2d

678, 679 (6th Cir. 1985)). No one contests that the McDonnell

Douglas burden-shifting test offers a correct description of the

prima facie case required to establish circumstantial evidence

of employment discrimination. Moreover, the test is not

irrelevant, redundant, or confusing.

Certainly, this Court has never forbidden the use of the

McDonnell Douglas test. In Kitchen, the issue was whether

the district court committed reversible error in refusing to

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

2

Actually, some of the lead opinion’s cited cases, like Kitchen and

Lewis, rejected the notion that the burden-shifting framework is a

necessary component of jury instructions in an employment

discrimination case, but the cases did not expressly prohibit the

framework’s use. These cases merely provide some dicta suggesting that

the burden-shifting approach is confusing to explain to jurors. See Loeb

v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979) (acknowledging that

“the subtleties of McDonnell Douglas are confusing” for judges and juries

and that “to read its technical aspects to a jury [may confuse a juror],” but

then stating that the use of McDonnell Douglas is workable because “we

do not equate use of McDonnell Douglas with a requirement that the full

formulation be read in haec verba to the jury”); see also Gehring v. Case

Corp., 43 F.3d 340, 343 (7th Cir. 1994) (rejecting the plaintiff’s argument

instruct a jury in a retaliation case, brought under Michigan

state law, on the burden-shifting test. This Court decided that

the district court did not err “because the jury’s proper concern

was with the ultimate question of retaliation and not with the

potentially confusing shifting of evidentiary burdens.”

Kitchen, 825 F.2d at 1012. But affirming the district court’s

decision not to give an instruction cannot be equated with

reversing a district court’s decision to give the instruction.

Kitchen’s comment about potential confusion amounts 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

not to give the McDonnell Douglas instruction. The Court

made no finding that giving a McDonnell Douglas instruction

would have been legally erroneous. It should not be gleaned

from either of these cases that a district court errs in giving a

McDonnell Douglas instruction on the basis of its allegedly

confusing nature, since holding that an instruction is

unnecessary or superfluous is quite different from holding that

an instruction is actually detrimental to the jury’s

understanding of what it is to decide.

In determining that juries are not sufficiently sophisticated

to understand the McDonnell Douglas test, the lead opinion

essentially relies on dicta from other circuits disapproving of

including the McDonnell Douglas test in jury instructions, but

declining to reverse on such grounds.

2

 Sharkey v. Lasmo
No. 01-5864 Brown v. Packaging Corp. of America 19

that he was entitled to a burden-shifting instruction); Williams v. Valentec

Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (affirming the district

court’s refusal to include the burden-shifting test in its jury instructions);

Costa v. Desert Palace, Inc., 299 F.3d 838, 854-55 (9th Cir. 2002) (en

banc) (mentioning, in dicta, that “it is not normally appropriate to

introduce the McDonnell Douglas burden-shifting framework to the jury,”

as part of a general discussion about the relationship between the

McDonnell-Douglas test and the single- and mixed-motive analyses),

aff’d, – U.S. –, 123 S.Ct. 2148, 2003 W L 21310219 (June 9, 2003).

(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000); Dudley v. WalMart Stores, Inc., 166 F.3d 1317, 1321-22 (11th Cir. 1999);

Cabrera v. Jakabovitz, 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.2d 1306,

1308-09 (10th Cir. 1990); Mullen v. Princess Anne Volunteer

Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988); see also

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

Cir. 2000) (observing that the inclusion of the McDonnell

Douglas test in the jury instructions was erroneous but

reversing on other grounds). The largely conclusory rationales

detailed in those cases are less than persuasive.

Two main reasons generally are advanced in support of

excluding the McDonnell Douglas test from jury instructions.

The first rationale, based on the idea that judges should only

use language that jurors can understand, implies that lay

persons do not easily understand such terms as “prima facie

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. Brill, Instructing the Jury in an

Employment Discrimination Case, 1998 FED. CTS. L. REV. 2,

4.5-4.6 (March 1998). Yet, as the partial dissent in Loeb

noted, “[t]he difficulties involved in instructing a jury in a

products liability case, where liability is alternately premised

on the three theories of strict liability, negligence, and

warranty are no less complex than the shifting burdens

outlined in McDonnell Douglas.” Loeb, 600 F.2d at 1024

(Bownes, J., concurring and dissenting). Similarly,

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

complicated terminology abounds in such areas of law as

medical malpractice. See, e.g., Joseph H. King, Jr.,

Reconciling the Exercise of Judgment and the Objective

Standard of Care in Medical Malpractice, 52 OKLA. L. REV.

49, 69-70 (noting the potential confusion of “best judgment”

language in jury instructions for medical malpractice lawsuits).

Yet courts have not jettisoned these frameworks from jury

instructions on the theory that juries are incapable of

comprehending sophisticated nomenclature. Indeed, no

legitimate distinction has been asserted between the products

liability and medical malpractice contexts and the present

context of employment discrimination. Thus, if a jury is

capable of understanding the terms used in contexts such as

those of products liability and medical malpractice, then there

is no apparent reason why a jury should not be able to

understand the terms used in the employment discrimination

context.

Moreover, the notion that juries are too easily confused by

such terminology is unexplained and unproven. The cases

advancing this viewpoint do not cite any empirical data in

drawing the conclusion that juries are not sufficiently capable

of understanding McDonnell Douglas. The First Circuit’s

Loeb opinion was released not terribly long after McDonnell

Douglas was decided, and it reflects the court’s own

confusion as to what constituted the settled law of shifting

burdens in an employment discrimination case. Indeed, the

First Circuit backed away from its earlier misgivings,

acknowledging that the Loeb decision was influenced by its

own confusion:

Although this framework was considered complicated and

cumbersome when it was first used in

McDonnell-Douglas, with repeated use courts have

become more comfortable with it, both for their own use

in ruling on Title VII claims and for the jury's use in

ruling on intentional discrimination. . . . It is a

straightforward way of explaining how to consider
No. 01-5864 Brown v. Packaging Corp. of America 21

whether there is intentional discrimination in situations

where such discrimination is not likely to be overt.

Rowlett v. Anheuser-Busch, Inc. 832 F.2d 194, 200 (1st Cir.

1987) (citation omitted), abrogated on other grounds by

Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999). Thus, the

First Circuit, which was the first to question the wholesale

importation of McDonnell Douglas into jury instructions in

Loeb, backed off and embraced its use just a few years later.

When a trial court understands the law, it should be able to

explain the law to a jury with relative ease. Trial courts are

much more comfortable with McDonnell Douglas than they

were twenty years ago when the Supreme Court was still roadmapping many burden of proof issues in employment

discrimination law. The concerns that were present during the

time Loeb was decided have largely abated. Even assuming

that a jury might experience difficulty understanding an aspect

of the burden-shifting structure, it can – and presumably will

– request clarification from the court.

The other most frequently cited rationale is that once the

case has been tried and is about to be submitted to the jury, the

McDonnell Douglas analysis is no longer relevant because it

is the function of the trial judge, not the jury, to engage in the

burden-shifting analysis. That is, it is argued that if the judge

determines that the plaintiff has not made out a prima facie

case, the case is dismissed by way of a directed verdict in

defendant’s favor; if the plaintiff has established a prima facie

case and the defendant has articulated no legitimate nondiscriminatory reason for its adverse employment action,

judgment is rendered for the plaintiff; and if the plaintiff has

established a prima facie case 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., Deborah C. Malamud, The Last

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

3

It is important to note that the parties’ shifting burdens of production

do not form the entirety of a jury’s inquiry, which is, at its core, whether

it finds by a preponderance of the evidence that the employer intentionally

discriminated against the plaintiff. United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 775 (1983). Nevertheless, elements

of a prima facie case frequently are still relevant after the case has gone

to the jury. For instance, when an issue of fact remains as to one or more

of the elements in a plaintiff’s prima facie case, it is sometimes necessary

to ask the jury, usually as part of a special verdict form, to engage in

factfinding on that particular element. Even the Loeb court had

acknowledged that McDonnell Douglas would continue to be relevant in

this scenario. Loeb, 600 F.2d at 1016. 

Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV.

2229, 2323 (1995).3 

For thirty years, the McDonnell Douglas analysis has played

an important role in the framework of employment

discrimination law, and that analysis might assist a jury in

understanding the dispute it has been asked to resolve. For

instance, if the jury in this case had simply been told,

“Packaging Corporation says that it decided not to promote

Mr. Brown because of his arson conviction and an incident at

work involving nude photographs of his wife; you decide

whether you think they are lying and that their real reason was

age discrimination (which you may infer if you believe four

certain facts),” the jury might have wondered why the inquiry

was framed in that way and focused only on that aspect of the

trial. Only an explanation of the parties’ initial respective

burdens would shed further light on the reasons for the

inquiry’s focus. Thus, even if the giving of the McDonnell

Douglas test is not required, it is often beneficial in assisting

a jury’s comprehension of the issues it has been asked to

resolve. 

This is particularly true when one recalls the policy grounds

underlying the formulation of the McDonnell Douglas test in

the first place. As the partial dissent in Loeb noted, the

McDonnell Douglas test sought to “accommodate both the

strong policy reasons for allowing plaintiff to proceed on the
No. 01-5864 Brown v. Packaging Corp. of America 23

4

I adhere to this view notwithstanding language in Hicks, 509 U.S.

at 510-11, that some commentators have read as dampening (or even

eliminating) the relevance of McDonnell Douglas once the employer

asserts a legitimate explanation for its actions. See, e.g., Malamud, supra,

at 2324. Hicks should not be read as attempting to supplant the

McDonnell Douglas burden-shifting analysis at any stage of the litigation.

See William R. Corbett, Of Babies, Bathwater, and Throwing Out Proof

Structures: It is Not Time to Jettison McDonnell Douglas, 2 EMPLOYEE

RTS. & EM P. POL’Y J. 361, 386-89 (1998) (arguing that the centrality of

McDonnell Douglas in employment discrimination cases, and its

relevance in jury instructions, remains after Hicks). Until the Supreme

Court indicates otherwise, the McDonnell Douglas framework remains the

driving force for burden of proof issues in cases resting on circumstantial

evidence.

basis of a prima facie case and the further logical reason that

the employer was the person best able to explain legitimate

reasons for failing to hire (or firing) an otherwise qualified

person who was within the protected class.” Loeb, 600 F.2d at

1024 (Bownes, J., concurring and dissenting). Bearing these

policy considerations in mind, the Supreme Court has

endorsed the notion that a jury may infer discrimination if

(1) it finds that the plaintiff has established the four elements

of the prima facie case and (2) it disbelieves the employer’s

explanation for its adverse employment action(s). Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)

(citing St. Mary’s Honor 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 prima facie case by offering a

legitimate, non-discriminatory reason for its actions. Thus,

“[s]ome instruction to the jury on the prima facie case is

necessary for a full appreciation of what is involved in

discrimination cases.” Loeb, 600 F.2d at 1024 (Bownes, J.,

concurring and dissenting). 

Another problem with the lead opinion is that although it

does not explicitly forbid district courts from giving the

McDonnell Douglas instruction, it impliedly attempted to put

them on notice that giving such an instruction may place in

jeopardy the validity of a jury’s verdict on appellate review.

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

However, the lead opinion does not explain the circumstances

under which a jury verdict might be overturned because of the

use of the instruction, and when the verdict would not be

overturned. Indeed, it does not explain why the district court

did not abuse its discretion in this case, and it therefore

provides little guidance to district courts in deciding whether

to include such an instruction. The likely result from such a

holding is that many district courts might simply refuse to give

the instruction, instead determining that eliminating the risk of

having a jury verdict overturned on appeal outweighs the

benefit of providing a jury with a fully developed jury

instruction on the applicable employment discrimination law

issues. 

Such a development would be unfortunate because

describing the burden-shifting paradigm often can be

beneficial in communicating to juries an understanding of

employment discrimination law. Specifically, as discussed

above, the McDonnell Douglas test provides jurors with a

fleshed-out context for the purpose of resolving the factual

disputes presented by the case being considered. The risk of

confusion should be minimal or nonexistent when the judge

explains to the jury that McDonnell Douglas provides a

backdrop to the jurors’ role as factfinders, and that their

ultimate duty is to determine whether (1) the employer’s

proffered legitimate reason for an adverse employment action

was pretextual and (2) the employer’s true motive for taking

the adverse 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 employer’s asserted reason

was pretext for employment discrimination). 

The lead opinion is correct in stating that “it remains the

responsibility of the judge to determine whether the plaintiff

has presented a prima facie case capable of withstanding a

motion of summary judgment or a directed verdict.” However,

this does not mean that the McDonnell Douglas instruction

does not provide a useful purpose, or that it is superfluous or
No. 01-5864 Brown v. Packaging Corp. of America 25

confusing. Indeed, the average juror is not incapable of

understanding such language as “prima facie case” when it is

properly explained. As in any jury trial, it is the responsibility

of the judge to define legal terms and to clarify any 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

placing upon defendant an improper burden, its commenting

on shifting burdens imports no error.” Loeb, 600 F.2d at 1024

(Bownes, J., concurring and dissenting). Therefore, the district

court’s use of the McDonnell Douglas test with its burdenshifting paradigm was an appropriate tool in instructing the

jury.