* District Judge of the Western District of Texas, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41472

ALAN D. RATLIFF,

Plaintiff-Appellant,

versus

CITY OF GAINESVILLE, TEXAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

July 17, 2001

Before WIENER and STEWART, Circuit Judges, and WALTER S. SMITH, JR., * District Judge.

CARL E. STEWART, Circuit Judge:

Alan D. Ratliff (“Ratliff”) appeals the trial court’s jury instructions, as well as its decision to

admit certain spoiliation evidence, in an age discrimination lawsuit that he filed against the City of

Gainesville, Texas (“the City” or “Gainesville”). For the following reasons, we affirm in part, and we

reverse in part and remand for a new trial.2 FACTUAL AND PROCEDURAL HISTORY

In November 1994, Gainesvil le hired a recruiting firm, Ralph Anderson & Associates

(“RAA”), to conduct a search for a new city manager. David Eisenlohr (“Eisenlohr”), then president

of RAA, met with Gainesville City Council (“the Council” or “City Council”) members to questi on

them regarding their needs for the position. Based on these interviews, but without needing the final

approval of the City in order to run the advertisements or job listings, Eisenlohr compiled a written

profile of the position. The pro file stated that the selectee must have: (1) a diverse general

background in municipal management and experience as a city man ager, city administrator, chief

administrative officer, or an assistant city manager in a similar or larger community; (2) a bachelor’s

degree, but with preference for a master’s degree; and (3) preferably, experience in a stand alone

community, i.e., one that provides its ow n so lid waste collection, landfill, water, wastewater

treatment, airport, and cemetery. The profile, however, did not require an engineering degree.

An advertisement approved by the City stated that it sought an “up-and-coming, aggressive”

leader with a bachelor’s degree in public or business administration or a related field. It al so stated

that a master’s degree was preferred, but it made no mention of an engineering degree requirement.

Gainesville’s mayor, James Hatcher (“Hatcher”), and members of th e City Council tol d

Eisenlo hr that the City was looking for a “younger person” who was “very aggressive, very high

energy and was not there thinking in terms of putting down roots.” Eisenlohr also testified that in

a preliminary interview with Rat liff, Eisenlohr stated that although the entire City Council selected

the final candidate, Hatcher “called the shots” on the Council. In addition, Eisenlohr stated to Ratliff

that the City was “looking for someone who would not plan on staying there, would use it as a

stepping stone.”2 One Council member, James Pulte, resigned for medical reasons and did not retain his notes and

memoranda.

3 Ratliff was 54-years-old in early 1995, the time at which he applied for the city manager

position through RAA. Ratliff had neither an advanced nor an engineering degree. Ratliff, however,

had 26 yea rs o f managerial experience in city government, including six years of experience as an

assistant city manager of Plano, Texas, a small suburban town. He was also the city manager for

Coppell, Texas (“Coppell”). The City contends that his experience in these cities did not qualify him

for the position in Gainesville, given its view that those cities are not stand alone cities. Similarly, it

put into evidence that Rat liff’s tenure in Coppell was no t without conflict and that he resigned his

position as a result of pressure from Coppell’s City Council.

Eisenlohr selected Ratliff as a finalist for the position, along with four younger finalist s, all of

whom were in their thirties. Larry Jackson (“Jackson”), a recommender of Ratliff and an

acquaintance of Hatcher, testified that after he recommended Rat liff, Hatcher informed him that the

City was looking for “a young man who would probably come in for a short time and move on.”

Each candidate was interviewed over a two-day period in February 1995 by the City Council, which

included at least three individuals who were at least ten years or more older than Rat liff. The Council

tape recorded and used certified agendas of the sessions, in accordance with Texas law. In March

1995, several of the City Council members lost their elected seats, and each of these individuals

destroyed or discarded, upo n immediate notice of their losses, all notes, correspondence, and

memoranda related to the hiring process. 2

The City ultimately rejected Ratliff and hired Alan Mueller (“Mueller”) instead, a man in his

early thi rt ies wit h a master’s degree and an engineering background. Mueller, however, had less3 Kaden is Gainesville’s current Mayor.

4 The ADEA states that it is unlawful “to discharge any individual or other wise discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (2001).

5 The EEOC and the American Association of Retired Persons (“AARP”) also filed amici briefs

in support of Ratliff.

4 exp erience than Ratliff. Several council members indicated that Mueller’s civil engineering

background would be helpful to the City in its negotiations with contractors for several current and

pending city projects.

After being notified of the City’s hiring decision, Ratliff attempted t o contact several City

Council members . He succeeded in taping a portion of a conversation with Councilman Kenneth

Kaden (“Kaden”), then Mayor Pro Tem, 3 who stated that he believed the only reason Ratliff was not

hired was his age. Kaden, however, testified that he was simply attempting to mollify Ratliff and to

end the conversation quickly since Kaden was busy at work. Kaden also stated in an affidavit that

the Council liked neither Rat liff’s personality nor demeanor during the interview, but that the council

members were too polite to inform Ratliff of this.

Ratliff filed a charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”) o n August 29, 1995, and after a two year investigation, the EEOC concluded that

Gainesville had violated the Age Discrimination in Employment Act (“ADEA”) 4 because “there was

direct evidence that it was seeking a young man for the position who would come in for two (2) to

three (3) years and move on to better things.” A jury, however, subsequently found that the City had

not violated the ADEA. Ratliff now appeals. 55 DISCUSSION

I. Jury Instructions

Ratliff argues that the trial court erred when it refused to charge the jury with the following

inference instruction: “If the Plaint iff disproves the reasons offered by Defendants by a preponderance

of the evidence, you may presume that the employer was motivated by age discriminatio n.” This

inference instruction would have allowed the jurors to infer discriminatory motive from Rat liff’s prima

facie case combined with proof that Gainesville’s proffered reasons were pretextual. Similarly, Rat liff

contends that the trial judge erred when it gave a “pretext plus” instruction to the jury, in lieu of “a

permissive pretext only” standard. The trial judge instructed the jury, in part, with the fo llo wing

charge:

If you find that the City of Gaines ville has articulated

nondiscriminatory reasons for not hiring M r. Rat liff, then you must

find for The City of Gainesville. Ho wever, if Mr. Ratliff can show

that the articulated reason s given by The City of Gainesville are (1)

false, and (2) a determining or motivating factor for his non-hire was

his age, then you may find for Mr. Ratliff.

This Court reviews jury instructions for harmful error. R ubinstein v. Adm’r of Tulane Educ.

Fund

, 218 F.3d 392, 404 (5 th Cir. 2000), reh’g en banc denied

, 232 F.3d 212, cert. denied

, 121 S. Ct.

1393 (2001). “Even if an instruction erroneously states the applicable law or provides insufficient

guidance, this Court will not disturb the judgment unless the error could have affected the outcom e

of the trial.” I d. However, “[c]hallenges to jury instructions are reviewed to determine whether the

court’s charge, as a whole, is a correct statement of the law and clearly instructs jurors on the legal

principles at issue.” Id.6 The jury charge stated in part:

While you should consider only the evidence in this case, you are permitted

to draw such reasonable inferences from the testimony and exhibits as you feel

are justified in the light of common experience. In other words, you may

make deductions and reach conclusions that reason and common sense lead

you to draw f

ro m t he facts that have been established by the testimony and

evidence in this case . . . . There are two types of evidence that you may

consider in properly finding the truth as to the facts of the case. One is direct

evidence–such as testimony of an eyewitness. The other is indirect or

circumstantial evidence–the proof of a chain of circumstances that indicates

the existence or nonexistence of certain other facts. As a general rule, the law

makes no distinction between direct and circumstantial evidence, but simply

requires that you find the facts from a preponderance of all of the evidence,

both direct and circumstantial.

7 These state:

You must consider only the evidence in this case. However, you may draw

such reasonable inferences from t he t estimony and exhibits as you feel are

justified in the light of common experience. You may make deductions and

reach conclusions that reason and common sense lead you to make from the

testimony and evid ence . . . . There are two types of evidence you may

consider. One is direct evidence–such as test imony of an eyewitness. The

other is indirect o r circumstantial evidence–the proof of circumstances that

tend to prove or disprove the existence or nonexistence of certain other facts.

The law makes no distinction between direct and circumstantial evidence, but

6 A. Inference Instruction

Ratliff cites Reeves v. Sanderson Plumbing Products, Inc.

, 530 U.S. 133 (2000), in support

of his arguments that the trial court erred when it failed to give the jury the inference and “permissive

pretext only” instructions. The R eeves Court stated that “a plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier

of fact to conc lude t hat the employer unlawfully discriminated.” 530 U.S. at 148. In contrast,

Gainesville counters that the jury instructions were correct, given that the trial judge’s General

Instructions 6 to the jury complied with The Fifth Circuit Pattern Jury Charges. 7 With respect to thesimply requires that you find the facts from a preponderance of al l the

evidence, both direct and circumstantial.

U.S. F IFTH C IRCUIT D IST

. J UDGES A SSOC

., P ATTERN J URY I NSTRUCTIONS : C IVIL C ASES

C ONSIDERATION OF THE E VIDENCE § 2.18 (1999).

7 inference instruction, the City also states it would have simply been a redundancy and notes that this

Circuit requires no such instruction.

We, however, find Rat liff’s argument persuasive, in light of the Supreme Court’s admonition

in Reeves

, as well as our precedent post- R eeves rejecting district court judgments that have not

comported with Reeves

. See, e.g., Blow v. City of San Antonio, Tex. , 236 F.3d 293, 297 (5 th Cir.

2001), reh’g en banc denied

, 240 F.3d 745 (5 th Cir. 2001) (finding that the district court’s reasoning

was inconsistent with Reeves when it granted summary judgment for the defendant because it found

no summary judgment evidence connecting the failure to hire the plaintiff with her race and stating

that “ Reeves held that a trier of fact may infer the ultimate fact of discrimination from the falsity of

the emplo y er’s explanation [in conjunction with a plaint iff’s prima facie case of discrimination]”);

Evans v. City of Bishop, 238 F.3d 586, 591 (5 th Cir. 2000) (reversing a summary judgment in favor

of the defendant because the plaintiff made a prima facie case and created a jury issue as to pretext

on the defendant’s proffered justification and stating that “th e fact finder ‘may still consider the

evidence establishing the plaint iff’s prima facie case and inferences properly drawn therefrom

. . .’”)

(emphasis added) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine

, 450 U.S. 248, 255 n.10 (1981));

Russell v. McKinney Hosp. Venture

, 235 F.3d 219, 22 3 (5th Cir. 2000) (reiterating that “[a]

unanimous Court held that this circuit had ‘misconceived the evidentiary burden borne by plaintiffs

who attempt to prove intentional discrimination throu gh indirect evidence. . . . Thus, a plaintiff’s

prima facie case, combined with sufficient evidence to find that the employer’s asserted justification8 Our precedent and holding also conform with those taken by our sister circuits pre- Reeves

. S ee

Smith v. Borough of Wilkinsburg

, 147 F.3d 272, 28 0 (3d Cir. 1998) (stating that “jurors must be

instructed that they are entitled to infer, but need not, that the plaint iff’s ultimate burden of

demonstrating intentional discrimination by a preponderance of the evidence can be met if they find

that the facts needed to make up the prima facie case have been established and they disbelieve the

employer’s explanation for its decision”); Cabrera v. Jakabovi tz , 24 F.3d 372, 382 ( 2 d Cir. 1994)

(expressing the view that the jury must be informed that it “is entitled to infer, but need not infer” that

the plaint iff’s burden has been met if it finds that the plaint iff has proved its prima facie case of

discrimina t io n and “they disbelieve the defendant’s explanation”) (citing S t. Mary’s Honor Ctr. v.

Hicks , 509 U.S. 502, 511 (1993)). Moreover, Smith also notes:

[w]ithout a charge on pretext, the course of the jury’s deliber ations will

depend on whether the jurors are smart enough or intuitive enough to realize

that inferences of discrimination may be drawn from the evidence establishing

plaint iff’s prima facie case and the pretextual nature of the employer’s

proffered reasons for its actions. It does not denigrate the intelligence of our

jurors to suggest that th ey need some instruction in the permissibility of

drawing that inference.

147 F.3d at 281.

9 See discussion, supra

Factual and Procedural History.

8 is false, may permit the trier of fact to conclude that the employee [sic] unlawfully discriminated’”)

(citing Reeves

, 530 U .S. at 146-48); R ubinstein

, 218 F.3d at 400 (acknowledging the impact of

Reeves , in the context of Title VII , by stating that “[w]hile we are mindful of the Supreme Court’s

recent admonition that Title VII plaint iffs need not always present evidence above and beyond their

prima facie case and pretext, . . . discrimination suits still require evidence of discrimination”). 8

B. “ Pretext Plus” v. “Permissive Pretext Only ”

Ratliff similarly asserts that the instruction 9 that the trial judge gave to the jury incorporated

the “pretext plus” standard and is in direct contravention to the “permissive pretext standard” that1 0 The relevant portion of Reeves is that “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit the trier o f fact t o

conclude that the employer unlawfully discriminated.” 530 U.S. at 148.

9 the Supreme Court laid out in Reeves 10 regarding a plaint iff’s burden of proof under the ADEA. The

“pretext plus” strand of analysis requires a plaint iff not only to dispr o ve an employer’s proffered

reasons for the discrimination, but also to introduce additional evidence of discrimination. S ee Kline

v. Tenn. Valley Auth.

, 128 F.3d 337, 343 (6 th Cir. 1997). In contrast, the “permissive pretext only”

standard is a more lenient approach, and if the plaintiff establishes that the defendant’s reasons are

pretextual, the trier of fact is permitted, but not required, to enter judgment for the plaint iff. S ee id.

The City relies on Rhodes v. Guiberson Oil Tool s

, 75 F.3d 989, 994 (5 th Cir. 1996) (en banc)

to support its proposition that this Court strictly adheres to the “pretext plus” standard and therefore

requires no instruction with respect to the “permissive pretext only” standard. See id. (stating that

“[i]f the evidence put forth by the plaint iff to establish the prima facie case and to rebut the

employer’s reason is not substantial, a jury cannot reasonably infer discriminatory intent . . . .” and

“[w]hen a plaintiff has offered pretextual evidence that allows a factfinder to reject the defendant’s

proffered reasons and infer discrimination, other circuits have been unwilling to upset a jury verdict

for the plaint iff”) (emphasis added) (c it at io ns omitted). The City correctly notes that this Circuit

pronounced that Rhodes was found to be generally consistent with Reeves in Vadie v. Mississippi

State University

, 218 F.3d 365, 373 n.23 (5 th Cir. 2000), reh’g en banc denied

, 232 F.3d 212 (2000),

cert. denied

, 121 S. Ct . 859 (2001). Nonetheless, this Court has unequivocally stated that it no

longer adheres to its pretext-plus requirement in light of the Supreme Court’s decision in R eeves

.

See Russell

, 235 F.3d at 223 n.4 (noting that our prior standard of “pretext-plus” is “contrary to the

Court’s h o lding [in R eeves ] that the employer’s prevarication may be sufficient in many cases to10

demonstrate discriminatory animus” and underscoring “that Reeves is the authoritative statement

regarding the standard for judgment as a matter of law in discrimination cases.

. . . insofar as Rhodes

is inconsistent with Reeves , we follow Reeves ”).

Our holding moreover accords with other recent Fifth Circuit precedent. S ee Blow

, 236 F.3d

at 298 (finding that the Reeves Court overruled “the Fifth Circuit [because it] had erred in assuming

that a plaint iff must introduce ‘additional, independent evidence of discrimination’ and reiterating that

a “plaint iff has proved her prima facie case; [when] she has presented sufficient evidence to create a

material issue of disputed fact as to whether the employer’s explanation was false; and there are no

unusual circumstances that would prevent a rational fact-finder from concluding that the employer’s

reasons for failing to prom ote her were discriminatory and in violation of Title VII”) (citing Reeves

,

530 U.S. at 149); s ee also Evans

, 238 F.3d at 592 (noting that “[t]he Supreme Court in Reeves [sic]

emphasized the importance of jury fact finding and reiterated that evidence of the prima facie case

plus pretext may, and usually does, establi sh sufficient evidence for a jury to find discrimination”)

(citing Reeves

, 530 U.S. at 148). Thus, because the jury instructions failed to conform to R eeves or

to our precedent post- Reeves , we find that the district court erred.

C. Taint Instruction

Ratliff urges as a third argument that the trial co u rt erred when it refused to give a taint

instruction to the jury. Ratliff proffered, in part, the following taint instruction:

A corporati on

, of course, may only act through natural persons, who

are known as its agents. In general, any agent or representative of a

corporati on whether an employee of the corporati on or a contractor,

possessing adequate authority, m a y bind a corporati on by his or her

acts, declarations and omissions

. . . . [I]f you find that one or more

members of the Gainesville council members was affected or made its

recommendations based upon age discriminatory motives or reasons,1 1 Also, according to Eisenlohr’s testimony, Hatcher “called the shots” on the City Council. S ee

discussion, supra

Factual and Procedural History.

1 2 Although the Court in Reeves acknowledged the possibility of the ultimate decision maker’s

decision being tainted by the discriminatory animus of another influential person, the Court did not

mandate an instruction invo lving such taint. S ee Reeves

, 530 U.S. at 152-53. Moreover, although

Russell noted that an employee, who demonstrated age-based animus, influenced and possessed

leverage over the plaint iff’s employer, taint of the Council by Hatcher and Kaden was not a fact issue

at trial. Furthermore, Russell similarly did not mandate a taint instruction.

11 you may infer that taint of age discrimination affected or impacted the

entire council in its selection decision.

(emphasis added) On appeal, Ratliff asserts that Hatcher 1 1 and Kaden, respectively the Mayor and

Mayor Pro Tem of Gainesville, who sat on the Council and openl y admitted that age was an

important factor in the Council’s decision to hire Mueller, “tainted” the City Council, resulting in the

Council’s being a “rubber stamp” of Hatcher and Ka den’s desires. Although discussing no Fifth

Circuit precedent directly supporting the requirement of a taint instruction, Ratliff relies on two cases

examining the issue of whether the bias of influential people may taint an employment decision that

is ultimately made by another person. See, e.g., Haas v. ADVO Sys., Inc. , 168 F.3d 732, 734 (5 th

C ir. 1999) (rejecting the contention that there was no discriminatory influence upon the relevant

decision maker); Long v. Eastfield Coll.

, 88 F.3d 300, 307 (5 th Cir. 1996) (referring to such taint as

the “cat’s paw”).

The City, however, is correct in noting that not only is it not a corporati on, but also that our

precedent requires no such instruction. Indeed, the Fifth Circuit precedent that Ratliff cites in support

of his argument, Haas and Long

, did not involve a group tainted by the discriminatory animus of one

or two members of a group. 12 We hold, therefore, that the district court did not err.12

II. Spoiliation

Ratliff also asserts that the trial court erred when it excluded evidence from the jury regarding

the City Council’s failure to retain documentation mandated by federal and state law with respect to

his age discrimination claim. This Court reviews evidentiary rulings for abuse of discretion. V ance

v. Union Planters Corp.

, 209 F.3d 438 (5 th Cir. 2000). Ratliff points, in particular, to the Council’s

failure to follow federal law mandating one-year retention of documentation relating to the failure or

refusal to hire an individual. S ee 29 C.F.R. Ch. XIV. He also points to the City Council’s failure to

retain tape recordings and certified agendas of its executive sessions in keeping with Texas law. S ee

T EX

. G OVT

. C ODE A NN . § 551.104(a) (2000).

The City responds that it mainly kept certified agendas, in lieu of tapes, in accordance with

state law. It also states that any destruction of any documentat io n o r t apes related to Ratliff’s

application or the general hiring process was incidental and occurred because several members of the

City Council had not been re-elected. It, therefore, asserts that there was no bad faith destruction of

this evidence. See United States v. Wise , 221 F.3d 140, 156 (5 th Cir. 2000).

Indeed, the district and magistrate courts noted t hat t he spoiliation of this evidence, in

particular with regard to the tapes, was not in bad faith because Gainesville “simply re-used the tapes

to record subsequent meetings” before it could have anticipated the litigation generated by Rat liff’s

August 29, 1995, EEOC charge. The district court reached this conclusion after considering Ratliff’s

a llegations three times and re-opening discovery one week before trial in order to allow further

exploration of the spoiliation is sue. The record, therefore, does not refl ect that the di stri ct court1 3 Hence, the probative value of the Counci l’s destruction of the records and tapes did not

outweigh the prejudice of admitting the evidence. See F ED

. R. E VID . 403.

13 abused its discre t io n by admitting into evidence the City Council’s failure to retain this

documentation. 13

CONCLUSION

Because we find that the district court did not err in refusing to give a “taint” instruction and

to admit into evidence destruction of material regarding Ratliff’s claim, we affirm in part. Because

we find, however, that, in light of the changes made t o a plaintiff’s evidentiary burden in

discrimination cases outlined in R eeves

, the district court erred in failing to give an infere nce

instruction and holding jurors to a “pretext plus” standard, we reverse in part and remand for a new

trial.

AFFIRMED IN PART. REVERSED IN PART AND REMANDED FOR NEW TRIAL.