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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA McFADDEN, :

: Civil Action No. 2:18 cv 544

:

Plaintiff, :

:

v. : JUDGE: SARGUS

: MAGISTRATE JUDGE: JOLSON

CITY OF COLUMBUS, :

:

Defendants. :

PLAINTIFF MELISSA McFADDEN’S PROPOSED

CASE-SPECIFIC JURY INSTRUCTIONS

Melissa McFadden is the Plaintiff in this case, and she is suing the Defendant, the City of 

Columbus, on six claims: (1) racial discrimination in violation of Title VII of the Civil Rights 

Act of 1964; (2) racial discrimination in violation of the Ohio Laws Against Discrimination; (3) 

racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to 

the United States Constitution; (4) retaliation in violation of Title VII of the Civil Rights Act of 

1964; (5) retaliation in violation of the Ohio Laws Against Discrimination; and (6) retaliation in 

violation of the First Amendment to the United States Constitution. Because the claims overlap 

to some extent, my instructions will not address in full all the claims separately, but you will 

consider each claim separately during your deliberations. I will instruct you on any differences 

among the claims that overlap.

Title VII of the Civil Rights Act of 1964 is a federal “statute that prohibits employers 

from discriminating against an employee in the terms and conditions of employment because of 

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the employee’s race [or other traits].”1 The Ohio Laws Against Discrimination is the Ohio civil 

rights statute that contains the same prohibition, and the Fourteenth Amendment has a similar 

prohibition. Both Title VII and the Ohio Laws Against Discrimination also prohibit retaliation, 

as does the First Amendment. You must not consider why Lt. McFadden brought overlapping 

claims, and I instruct that she had to the right to do so, and all the claims are properly before you.

 You know that Ms. McFadden is a Lieutenant in the Columbus Division of Police, and 

her allegations focus on how she, an African American, was disciplined by superior White

officers. Was the discipline motivated by racial discrimination and/or retaliation or was it 

nondiscriminatory and nonretaliatory? You will consider whether the investigation which 

triggered her loss of a field assignment and caused her reassignment to the Property Room 

culminated in significantly diminished material responsibilities.2 You will determine the facts 

surrounding that discipline and whether, given my instructions, they reflect that Lt. McFadden 

has proven one or more of her claims by a preponderance of the evidence.

Racial Discrimination3

I listed three separate racial discrimination claims – Title VII of the Civil Rights Act of 

1964, Ohio Laws Against Discrimination, and Equal Protection Clause – but I will instruct you 

first on the elements they all share. In other words, if you find that Lt. McFadden proved by a 

preponderance of the evidence those elements, then you may proceed to consider any different 

elements the claims do not share. I will also indicate when you may use the same evidence to 

draw an inference of retaliation.

1 Third Circuit Model Jury Instructions, § 5.0. Quotation marks indicate sentences in the model instructions cited, 

while bracketed words or punctuation reflect a modification of the sentences.

2 Opinion and Order (“O&O”), Doc #: 48, PAGEID #: 5304.

3 Unless otherwise indicated, these proposed instructions are modified from the Seventh Circuit Model Jury 

Instructions, § 3:01. Quotation marks indicate sentences in the model instructions cited, while bracketed words or 

punctuation reflect a modification of the sentences.

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All Discrimination Claims

Lt. McFadden claims that she was assigned to the property room and the duties there 

because of her race, African American. “To succeed on this claim, [Lt. McFadden] must prove 

by a preponderance of the evidence that [she] was [assigned to the property room and the duties 

there] by [the City of Columbus] because of [her race]. To determine that [Lt. McFadden] was 

[assigned to the property room and the duties there] because of [her race], you must decide that” 

at least one motivating factor in that decision was her race.4 

Lt. McFadden is not required to prove that her race was the sole motivation or even the 

primary motivation for the City of Columbus decision.5 She need only prove that her race played 

a motivating part in the City of Columbus decision even though other factors may also have 

motivated it.

6

 Indeed, given what I listed you will be asked whether there were other 

motivations, such as retaliation for her opposing discrimination or for her speech, for the City of 

Columbus’ decision. I instruct you that employment decisions can have more than one 

motivation, and the finding of one motivation does not require you to find for or against there 

being another motivation.

Lt. McFadden contends that several police officers who were accused as she was of EEO 

violations were sufficiently similarly situated to her that, if you find one or more was treated 

4 Third Circuit Model Jury Instructions, § 5.1.1 (“This [intentional discrimination] means that [plaintiff] must prove 

that [his/her] [protected status] was a motivating factor in [defendant’s] decision to [describe action] [plaintiff].”).

5 Third Circuit Model Jury Instructions, § 5.1.1 (“Although [plaintiff] must prove that [defendant] acted with the 

intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate

[plaintiff’s] federal civil rights. In showing that [plaintiff's] [protected status] was a motivating factor for 

[defendant’s] action, [plaintiff] is not required to prove that [his/her] [protected status] was the sole motivation or 

even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that 22 [plaintiff’s protected 

status] played a motivating part in [defendant's] decision even though other factors may also have motivated 

[defendant]. As used in this instruction, [plaintiff’s] [protected status] was a ‘motivating factor’ if [his/her] 

[protected status] played a part [or played a role] in [defendant’s] decision to [state 26 adverse employment action] 

[plaintiff].”).

6

Id. See also Eighth Circuit Model Jury Instructions, § 5.21 (“played a part in decision” but “need not have been 

the only reason”).

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more favorably than her, then you may infer the differential treatment was because of race or, on 

the retaliation claim, because of her opposition to employment practices she sincerely and 

reasonably believed were racially discrimination.7 She adds that significant procedural 

irregularities may also yield an inference of discrimination and retaliation.

8

 

“If you find that [Lt. McFadden] has proved [that race was a motivating factor in the City 

of Columbus’ assignment] by a preponderance of the evidence, then you must find for [her]. 

However, if you find that [Lt. McFadden] did not prove this by a preponderance of the evidence, 

then you must find for [the City of Columbus].” If you find for her, then you must consider 

damages, and I will instruct you on those after instructing you on the other discrimination claims.

Equal Protection

If you find that Lt. McFadden proved by a preponderance of the evidence that the City of 

Columbus discriminated against her, then you must consider an additional element that Lt. 

McFadden must prove on her Equal Protection claim. Lt. McFadden must prove by a 

preponderance of the evidence that the assignment to the property room and the duties there 

reflected the policy or custom of the City of Columbus, rather than just the action of one or more 

of its employees.

On this element, the City of Columbus “is not responsible simply because it employed” 

those who decided to assign Lt. McFadden to the property room and those duties.9 You can find 

a policy or custom if the decision to assign her to the property room was made by a policymaking official of the City of Columbus. This includes that official’s “approval of a decision or 

7 Opinion and Order (“O&O”), Doc #: 48, PAGEID #: 5307. See also McDole v. City of Saginaw, 471 F.Appx. 

464, 475–76 (6th Cir. 2012) (jury instructions need not expand on similarly situated concept).

8 Opinion and Order, Doc #: 48, PAGEID #:5315.

9 Seventh Circuit Model Jury Instructions, § 7.24.

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policy made by someone else, even if that person is not a policy-making official.”

10

 I instruct 

you that the Police Chief is such an official. Thus, if you find that the Police Chief made the 

assignment decision or approved of it, you must find that Lt. McFadden proved this element by a 

preponderance of the evidence.

I have not instructed you on this element for her claims under Title VII of the Civil 

Rights Act of 1964 or the Ohio Laws Against Discrimination. Those laws do not require proof 

of this element, and, unless I otherwise instruct you, you should not use an instruction for one 

claim in deliberating about another claim.

Ohio Laws Against Discrimination

Title VII of the Civil Rights Act of 1964 and the Ohio Laws Against Discrimination offer 

identical protection against discrimination. I instruct you that, if you find that Lt. McFadden 

proved discrimination under Title VII by a preponderance, you must find that she has also 

proved discrimination under the Ohio Laws Against Discrimination.

Damages for All Claims

On damages, “[i]f you find that [Lt. McFadden] has proved [any of her discrimination 

claims against the City of Columbus], then you must determine what amount of damages, if any, 

[she] is entitled to recover. [Lt. McFadden] must prove [her] damages by a preponderance of the 

evidence. If you find that [she] has failed to prove [one or more claims], then you will not 

consider the question of damages” on that claim or claims.11 Just because I am instructing you 

on how to award damages does not mean that I have any opinion on whether or not the City of 

Columbus should be held liable.

10 Seventh Circuit Model Jury Instructions, § 7.24. Accord Third Circuit Model Jury Instructions, § 4.6.3 

(instructing that “that [municipality’s] official policy or custom caused the deprivation” which may be found from

“a policy statement or decision that is officially made by [municipality’s] [policy-making official][.]”).

11 Seventh Circuit Model Jury Instructions, § 3.09; 3.10.

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“You may award compensatory damages only for injuries that [Lt. McFadden] has 

proved by a preponderance of the evidence were caused by [the City of Columbus’ 

discrimination or retaliation]. Your award must be based on evidence and not speculation or 

guesswork. This does not mean, however, that compensatory damages are restricted to the actual 

loss of money; they include both the physical and mental [or emotional] aspects of injury, even if 

they are not easy to measure. * * * You should consider the following types of compensatory 

damages, and no others[.]”12

You may consider lost wages,, physical, mental, and/or emotional pain and suffering, 

including humiliation, anguish, frustration, and sadness, that Lt. McFadden has experienced. 

“No evidence of the dollar value of [physical, mental, and/or emotional pain and suffering] has 

been or needs to be introduced. There is no exact standard for setting the damages to be awarded 

on account of these factors. You are to determine an amount that will fairly compensate [Lt. 

McFadden] for the injury [she] has sustained.”

13

 You may also consider medical care: “The 

reasonable value of medical care [or counseling] and supplies that [Lt. McFadden] reasonably 

needed and actually received[.]”14

“[Lt. McFadden] must also show that [the City of Columbus’] act or omission played a 

substantial part in bringing about the injury, and that the injury was either a direct result or a 

reasonably probable consequence of [its] act [or omission]. This test — a substantial part in 

bringing about the injury — is to be distinguished from the test you must employ in determining 

whether [the City of Columbus’] actions or omissions were motivated by discrimination[, or if 

you reach damages on her retaliation claim, by retaliation]. In other words, even assuming that 

[the City of Columbus’] actions or omissions were motivated [unlawfully], she is not entitled to 

12 Seventh Circuit Model Jury Instructions, § 3.10

13 Seventh Circuit Model Jury Instructions, § 7.26.

14 Seventh Circuit Model Jury Instructions, § 7.26.

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damages for an injury unless [the City of Columbus’] . . . actions or omissions actually played a 

substantial part in bringing about that injury. There can be more than one cause of an injury. To 

find that [the City of Columbus’] act or omission caused [Lt. McFadden’s] injury, you need not 

find that the act or omission was the nearest cause, either in time or space. However, if [Lt. 

McFadden’s] injury was caused by a later, independent event that intervened between [the City 

of Columbus’] act or omission and [her] injury, [the City of Columbus] is not liable unless the 

injury was reasonably foreseeable by [it].”

15

On the discrimination and retaliation claims, I will not instruct you on Lt. McFadden’s 

attorneys’ fees and costs expended in prosecuting her claims.16 You should not consider those as 

they are a matter for the Court, rather than the jury. Nor have I instructed you on punitive 

damages. You should not consider those in deciding the amount of compensatory damages, if 

any, you award Lt. McFadden. You should not draw any conclusion one way or the other from 

omitting punitive damages in your calculation.

Title VII and Ohio Laws Against Discrimination Retaliation17

Lt. McFadden has brought three separate retaliation claims – Title VII, Ohio Laws 

Against Discrimination, and First Amendment – and I will instruct you first on the elements Title 

VII and the Ohio Laws Against Discrimination. If you find that Lt. McFadden proved by a 

15 Third Circuit Model Jury Instructions, § 5.4.1.

16 Punitive damages are not available for the federal actions against a government, government agency, or 

political subdivision. 42 U.S.C. § 1981a(b)(1). Nor are they available under the Ohio Laws Against 

Discrimination. Hooper v. Trimble Bd. of Educ., No. 2:21-CV-2749, 2021 WL 5877840, at *3 (S.D. Ohio Dec. 

13, 2021) (“Plaintiff cannot recover punitive damages under R.C. § 4112.01 because punitive damages cannot 

be awarded in an action against a political subdivision unless there is a provision to the contrary. R.C. § 2744.05 (‘in 

an action against a political subdivision to recover damages ... caused by an act or omission in connection with 

a governmental or proprietary function ... punitive or exemplary damages shall not be awarded’)[.]”).

17 Unless otherwise indicated, these proposed instructions are modified from the Seventh Circuit Model Jury 

Instructions, § 3:02. Quotation marks indicate sentences in the model instructions cited, while bracketed words or 

punctuation reflect a modification of the sentences.

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preponderance of the evidence those elements, then you may proceed to consider any different 

elements the claims do not share. 

“[Lt. McFadden] claims that [she] was [assigned to the property room and the duties 

there] by [the City of Columbus] because of [her opposition to employment practices she 

sincerely and reasonably believed were racially discriminatory]. To succeed on this claim, [Lt. 

McFadden] must prove by a preponderance of the evidence that [the City of Columbus assigned 

her] because of [her opposition]. To determine that [Lt. McFadden was assigned] because of [her 

opposition], you must decide that [the City of Columbus] would not have [assigned her] if [she]

had [opposed employment practices she sincerely and reasonably believed were racially 

discriminatory] but everything else had been the same.”

18

I am not instructing about the motivating factor standard because that is used for 

discrimination, rather than retaliation claims under Title VII and Ohio Laws Against 

Discrimination. Essentially, if but for her criticism the City of Columbus would not have 

assigned her to the property room and physical and dirty duties inconsistent with her rank, there 

was causation. I will return to instructing you on the motivating factor standard on her First 

Amendment retaliation claim. 

“[Lt. McFadden] need not prove the merits of [her belief that the City of Columbus had 

engaged in racially discriminatory employment practices], but only that [she] was acting under a 

reasonable, good faith belief that [her or other officers’] right to be free from discrimination on 

the basis of [race] was violated.”

19

She can prove the causal connection “in many ways. For example, you may or may not 

find that there is a sufficient connection through timing, that is [the City of Columbus’] action 

18 Seventh Circuit Model Jury Instructions, § 3:02

19 Third Circuit Model Jury Instructions, § 5.1.7

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followed shortly after [it] became aware of [her opposition and criticism]. Causation is, 

however, not necessarily ruled out by a more extended passage of time. Causation may or may 

not be proven by antagonism shown toward [her][.]”20 As with discrimination, differential 

treatment of employees sufficient similar except for her opposition or procedural irregularities 

may convince you of a retaliatory motive.

If you find that Lt. McFadden has proved this by a preponderance of the evidence, then 

you must find for her. However, if you find that Lt. McFadden did not prove this by a 

preponderance of the evidence, then you must find for the City of Columbus. If you find for her, 

then you must consider damages.

You may use the damages instructions I gave you for the discrimination claims in 

determining what amount, if any, of damages will fairly compensate Lt. McFadden for the City 

of Columbus’s retaliation because she opposed employment practices she sincerely and 

reasonably believed had been racially discriminatory.

You must not, however, award Lt. McFadden damages more than once for the same 

injury. For example, if you find that she suffered emotional distress from being discriminated 

against, you may not award her damages for the same emotional distress from being retaliated 

against. 

Ohio Laws Against Discrimination

Title VII of the Civil Rights Act of 1964 and the Ohio Laws Against Discrimination offer 

identical protection against retaliation. I instruct you that, if you find that Lt. McFadden proved 

retaliation under Title VII by a preponderance, you must find that she has also proved retaliation 

under the Ohio Laws Against Discrimination. 

20 Third Circuit Model Jury Instructions, § 5.1.7

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First Amendment Retaliation21

Lt. McFadden claims that the City of Columbus violated her constitutional right to free 

speech by transferring her to the property room during the investigation of allegations against her 

and assigning her physical and dirty duties inconsistent with her rank because she had opposed 

employment practices she sincerely and reasonably believed had been racially discriminatory. 

“The First Amendment to the United States Constitution gives persons a right to” freedom of 

speech.22 “Government employees have a limited right to engage in free speech on matters of 

public importance, and government employers must not retaliate against their employees for 

exercising this right.”

23

 

To succeed on this claim, Lt. McFadden must prove each of six elements by a 

preponderance of the evidence: (1) she engaged in protected speech; (2) the City of Columbus 

intentionally assigned her to those duties in the property room; (3) her protected speech was a 

motivating factor for that assignment, though it need not have been the only motivating factor;24

(4) such an assignment “would be likely to deter an ordinary employee in [her] circumstances 

from engaging in similar” speech; (5) the City of Columbus “acted under color of law”; and (6) 

the assignment reflected the policy or custom of the City of Columbus, rather than just the action 

of one or more of its employees. 

If you find that Lt. McFadden did not prove each of these elements by a preponderance of 

the evidence, then you must decide for the City of Columbus. If you find that Lt. McFadden did 

21 Unless otherwise indicated, these proposed instructions are modified from the Seventh Circuit Model Jury 

Instructions, § 6:01. Quotation marks indicate sentences in the model instructions cited, while bracketed words or 

punctuation reflect a modification of the sentences.

22 Third Circuit Model Jury Instructions, § 7.4.

23 Third Circuit Model Jury Instructions, § 7.4.

24 The Third Circuit Model Jury Instructions, § 7.4. use “motivating factor,” while the Seventh Circuit uses 

“reason,” and to make the instructions consistent, the former is used here.

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prove each of these elements by a preponderance of the evidence, then you must decide for her, 

and consider the issue of damages.25 

On the first element, “[i]t is my duty to instruct you on whether [Lt. McFadden] engaged 

in activity that was protected by the First Amendment. In this case, I instruct you that the 

following activity was protected by the First Amendment:”

26 any speech by Lt. McFadden you 

determine criticized the City of Columbus for discriminatory employment practices, including a 

hostile work environment, in its police department. 

“The term ‘oppose,’ being left undefined by the statute, carries its ordinary meaning, ‘to 

resist or antagonize [...]; to contend against; to confront; resist; withstand.’ ‘The opposition 

clause protects not only the filing of formal discrimination charges with the EEOC, but also 

complaints to management and less formal protests of discriminatory employment practices.”27

Lt. McFadden loses that protection, however, if the City of Columbus proves that such 

speech was outweighed by its interests in promoting the efficiency of its operations.28 If you 

find that she engaged in speech criticizing the City of Columbus for discriminatory employment 

practices and the City of Columbus has not proved that such speech was so outweighed, then you 

must find that she proved the first element.

25 If the City of Columbus pursues a “same decision” defense, then this modification from the Seventh Circuit could 

be given: If you find that Lt. McFadden did prove each of these elements by a preponderance of the evidence, then

you must consider whether the City of Columbus has proved by a preponderance of the evidence that there were 

other motivating factors than discrimination or retaliation that would have led it to assign her to the property room 

and those duties even if she had not engaged in protected speech. If you find that the City of Columbus proved this 

by a preponderance of the evidence, then you must decide for it. If you find that the City of Columbus did not prove 

this by a preponderance of the evidence, then you must consider damages.

26 Third Circuit Model Jury Instructions, § 7.4.

27 Opinion and Order (“O&O”), Doc #: 48, PAGEID #: 5302 (citing and quoting from Crawford v. Metro. Gov't of 

Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (citing Webster's New International Dictionary 1710 

(2d ed.1958)); Laster v. City of Kalamazoo, 746 F.3d 714, 729–30 (6th Cir. 2014) (gathering cases of other examples 

of less formal protected activity).

28 Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 346 (6th Cir. 2001).

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On the third element, in proving that Lt. McFadden’s “protected [speech] was a 

motivating factor for [the City of Columbus’ assigning her to the property room and those duties] 

[she] is not required to prove that [her] protected [speech] was the sole motivation or even the 

primary motivation for [City of Columbus’] decision. [Lt. McFadden] need only prove that [her]

protected [speech] played a motivating part in [the City of Columbus’] decision even though 

other factors may also have motivated [it].”

29

Lt. McFadden could prove this element in a number of ways, and she need not have 

direct evidence, such as a superior saying “we are going to retaliate against you,” to prove this 

element. Circumstantial evidence from which you draw a reasonable inference may suffice to 

prove this element by a preponderance. “The timing of events can be relevant, for example if 

[the City of Columbus’] action followed very shortly after [it] became aware of [her] protected 

[speech]. However, a more extended passage of time does not necessarily rule out a finding that 

[Lt. McFadden’s] protected [speech] was a motivating factor. For instance, you may also 

consider any antagonism shown toward [her.]”30 “You may find that the [the City of Columbus]

would not have discharged [Lt. McFadden] “but-for” [her opposition] if it has been proved that 

the [City of Columbus’] stated reason for its decision [is] not the real reason, but [is] a pretext to 

hide retaliation.”

31

 If other employees are, apart from exercising free speech, sufficiently 

similarly situated but treated differently, you also find pretext. In the same, significant 

procedural irregularities may support an inference that she was being singled out in retaliation.

29 Third Circuit Model Jury Instructions, § 7.4. See also Eighth Circuit Model Jury Instructions, § 10.40 (“In First 

Amendment retaliation cases under 42 U.S.C. § 1983, however, the courts have continued to apply the ‘motivating 

factor’ standard, and as a result, a ‘same decision’ instruction may be appropriate in such cases.”).

30 Third Circuit Model Jury Instructions, § 7.4.

31 Eighth Circuit Model Jury Instructions, § 10.40 

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On the fifth element, I instruct you that at all times relative to her claims, the City of 

Columbus “acted under color of law.” Thus, you must find that she proved that the City of 

Columbus “acted under color of law.”

On the sixth element, the City of Columbus “is not responsible simply because it 

employed” those who decided to assign Lt. McFadden to the property room and those duties.32 

You can find a policy or custom if the decision was made by a policy-making official of the City 

of Columbus. This includes that official’s “approval of a decision or policy made by someone 

else, even if that person is not a policy-making official.”

33

 I instruct you that the Police Chief is 

such an official. Thus, if you find that the Police Chief made the assignment decision or 

approved of it, you must find that Lt. McFadden proved this element by a preponderance of the 

evidence.34

You may recall that I did not give you an instruction on the responsibility of the City of 

Columbus for either discrimination or retaliation under Title VII of the Civil Rights Act of 1964 

or the Ohio Laws Against Discrimination. Those laws do not require proof of this element, and, 

unless I otherwise instruct you, you should not use an instruction for one claim in deliberating 

about another claim. I gave you this instruction for the Equal Protection claim because the 

Fourteenth Amendment to the United States Constitution does require proof of this element.

On damages, if you find that Lt. McFadden proved all the elements by a preponderance 

of the evidence, then you should follow the instruction on damages I gave you for her 

discrimination claims.

Omitting McDonnell Douglas Framework

32 Seventh Circuit Model Jury Instructions, § 7.24.

33 Seventh Circuit Model Jury Instructions, § 7.24.

34 See also Third Circuit Model Jury Instructions, § 4.6.3 (instructing that “that [municipality’s] official policy or 

custom caused the deprivation” which may be found from “a policy statement or decision that is officially made by 

[municipality’s] [policy-making official][.]”).

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In its Opinion and Order on summary judgment, this Court properly used the McDonnell 

Douglas framework for analyzing circumstantial evidence. Lt. McFadden urges the Court to 

follow the practice in other circuits and omit instructing the jury on that framework. See, 

generally, Blair v. Henry Filters, Inc., 505 F.3d 517, 526 (6th Cir. 2007) (surveying model 

instructions in other circuits). Accord Eighth Circuit Model Jury Instructions, § 5.00 (“After all 

the evidence has been presented at trial, however, the inquiry should focus on the ultimate issue 

of intentional discrimination, not on any particular step in the McDonnell Douglas paradigm.”); 

Id. at § 5.40 (“It is unnecessary and inadvisable to instruct the jury regarding the three-step 

analysis of McDonnell Douglas[.]”).

First, to avoid confusing or distracting the jury, “trial courts should be discouraged from 

parroting the legal technicalities of McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973),] 

and Burdine [Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)] in charging 

juries.” Brown v. Packaging Corp. of Am., 338 F.3d 586, 587 (6th Cir. 2003) (Nelson, J., 

concurring). Indeed, McDonnell Douglas did not even involve a jury trial. Id. at 590. 

Second, McDonnell Douglas established “the order and allocation of proof in a private, 

non-class-action challenging employment discrimination.” 411 U.S. at 800 (emphasis noted). 

Juries are not responsible for that. McDonnell Douglas creates a presumption under Fed.R.Evid. 

302, and that presumption “drops” from the case once it has shifted the burden of production. 

“Our cases make clear that at that point the shifted burden of production became irrelevant: ‘If 

the defendant carries this burden of production, the presumption raised by the prima facie case is 

rebutted,’ Burdine, 450 U.S., at 255, and ‘drops from the case,’ id., at 255, n. 10.” St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

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Third, the Sixth Circuit does not find error when a jury instruction omits the McDonnell 

Douglas framework. Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1012 (6th Cir.1987)

(“[A] jury instruction will not automatically be erroneous simply because it does not precisely 

follow the legal niceties of McDonnell Douglas and Burdine.”). Accord In re Lewis, 845 F.2d 

624, 634 (6th Cir. 1988) (“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 [on Michigan employment discrimination statute] was a clear and preferable 

statement of the law.”).

Fourth, focusing on the ultimate question avoids injecting “the potentially confusing 

shifting of evidentiary burdens.” Kitchen, 825 F.2d at 1012. Clear statements of the governing 

legal principles are preferable. Beard v. AAA of Mich., 593 F. Appx. 447, 453-454 (6th Cir. 

2014). See also Marshall v. Rawlings Co., LLC, No. 3:14-CV-00359-TBR, 2018 WL 3745832, 

at *11 (W.D. Ky. Aug. 7, 2018) (“Rawlings objected to this Court's decision not to include 

specific language discussing the burden-shifting approach of McDonnell Douglas in the 

jury instructions, and the Court explained that the instructions, as written, incorporated the rule 

and spirit of McDonnell Douglas ‘in a way that [wa]s less confusing to the jury,’ because ‘when 

you say they've [plaintiff] carried their burden and then you rebut—I think that becomes—that's 

legalese for summary judgment motions but not necessarily for jur[ies]....’”). Incorporating 

elements of prima facie cases, production burden, and pretext may still be done without parroting 

McDonnell Douglas. Weimer v. Honda of Am. Mfg., Inc., 356 F. Appx. 812, 818 (6th Cir. 2009). 

After all, review of a jury verdict does not focus “on whether a plaintiff made out a prima facie 

case.” Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 317 n. 7 (6th Cir. 2007) (quoting Barnes

v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005)).

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Fifth, as a jury instruction, McDonnell Douglas is misleading. As with presumptions 

generally, the factual predicates recognized in McDonnell Douglas shift the production burden 

but are not the only evidence that could do so. See, e.g., Shah v. General Elec. Co., 816 F.2d 

264, 269 (6th Cir.1987) (“some additional evidence tend[ing] to establish the inference of 

discrimination” apart from replacement could also satisfy the prima facie burden”). As the 

Supreme Court cautioned: “facts necessarily will vary in [discrimination] cases, and [that its] 

specification . . . of the prima facie proof required from [plaintiff] [would] not necessarily [be] 

applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802 

n. 13. The Court “did not purport to create an inflexible formulation” for a prima facie case. 

Teamsters v. United States, 431 U.S. 324, 358 (1977). Title VII lacks any language correlating 

to the McDonnell Douglas prima facie case. Lt. McFadden “may meet this burden [of exposing 

pretext] under the ordinary standards of proof by direct or indirect evidence relevant to and 

sufficiently probative of the issue.” EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 

1992). Accord Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 691 (9th Cir. 2017) (“nothing 

compels the parties to use the McDonnell Douglas framework,” and plaintiff may simply 

produce “evidence demonstrating that a discriminatory reason ‘more likely than not motivated’ 

the employer”). 

Respectfully submitted,

OF COUNSEL:

Louis A. Jacobs (002101)

(LAJOhio@aol.com)

177 19th St., Apt. 9C

Oakland, CA 94612

By: /s/ Samuel M. Schlein___

Samuel M. Schlein (0092194)

(sschlein@marshallforman.com)

John S. Marshall (0015160)

(jmarshall@marshallforman.com)

Edward R. Forman (0076651)

(eforman@marshallforman.com)

Samuel M. Schlein (0092194)

(sschlein@marshallforman.com)

Helen M. Robinson (0097070)

Case: 2:18-cv-00544-EAS-KAJ Doc #: 67 Filed: 05/09/22 Page: 16 of 17 PAGEID #: 5420
-- 17 --

(614) 203-1255

Fax (510) 250-9007

(hrobinson@marshallforman.com)

MARSHALL FORMAN AND SCHLEIN 

LLC

250 Civic Center Dr., Suite 480

Columbus, Ohio 43215-5296

(614) 463-9790

Fax (614) 463-9780

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was filed with the Court on this 9 day of May, 

2022 via the Court’s electronic filing service .

By:/s/ Samuel M. Schlein___

Samuel M. Schlein (0092194)

Case: 2:18-cv-00544-EAS-KAJ Doc #: 67 Filed: 05/09/22 Page: 17 of 17 PAGEID #: 5421