*

 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, Gainesville 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 question

themregarding their needsfor 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 manager, 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 own solid 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 also 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 the City Council told

Eisenlohr 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 Ratliff, 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 medicalreasons 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 throughRAA. Ratliff had neither an advanced nor an engineering degree. Ratliff, however,

had 26 years of 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 Ratliff’s tenure in Coppell was not 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 finalists, all of

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

acquaintance of Hatcher, testified that after he recommended Ratliff, 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 Ratliff. 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, upon 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 thirties with a master’s degree and an engineering background. Mueller, however, had less
 

3

 Kaden is Gainesville’s current Mayor.

 

4 The ADEA states that it is unlawful “to discharge any individual or otherwise 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

experience 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 to 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 Ratliff’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”) on August 29, 1995, and after a two year investigation, the EEOC concluded that

Gainesville had violated the Age Discrimination in Employment Act (“ADEA”)4because “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.5
5

DISCUSSION

I. Jury Instructions

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

inference instruction: “Ifthe Plaintiffdisprovesthe reasons offered byDefendants bya preponderance

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

inference instructionwould have allowed the jurorsto infer discriminatorymotive fromRatliff’sprima

facie case combined withproofthat Gainesville’s proffered reasons were pretextual. Similarly, Ratliff

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 following

charge: 

If you find that the City of Gainesville has articulated

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

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

that the articulated reasons 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 reviewsjury instructionsfor harmful error. Rubinstein v. Adm’r of Tulane Educ.

Fund, 218 F.3d 392, 404 (5th 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 outcome

of the trial.” Id. 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 inferencesfromthe testimonyand 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 from the 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 the testimony 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 evidence . . . . There are two types of evidence you may

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

other is indirect or 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 argumentsthat the trial court erred when it failed to give the jury the inference and “permissive

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

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

of fact to conclude that 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

Instructions6to the jury complied with The Fifth Circuit Pattern Jury Charges.7 With respect to the
simply requires that you find the facts from a preponderance of all the

evidence, both direct and circumstantial. 

U.S. FIFTH CIRCUIT DIST. JUDGES ASSOC., PATTERN JURY INSTRUCTIONS: CIVIL CASESCONSIDERATION OF THE EVIDENCE § 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 Ratliff’s argument persuasive, in light ofthe Supreme Court’s admonition

in Reeves, as well as our precedent post-Reeves 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 (5th Cir.

2001), reh’g en banc denied, 240 F.3d 745 (5th 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 employer’s explanation [in conjunction with a plaintiff’s prima facie case of discrimination]”);

Evans v. City of Bishop, 238 F.3d 586, 591 (5th 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 “the fact finder ‘may still consider the

evidence establishing the plaintiff’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, 223 (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 through indirect evidence. . . . Thus, a plaintiff’s

prima facie case, combined with sufficient evidence to find that the employer’s asserted justification
 

8 Our precedent and holding also conform with those taken by our sister circuits pre-Reeves. See

Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) (stating that “jurors must be

instructed that they are entitled to infer, but need not, that the plaintiff’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. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994)

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

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

discrimination and “they disbelieve the defendant’s explanation”) (citing St. 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 deliberations will

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

that inferences of discrimination may be drawn fromthe evidence establishing

plaintiff’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 they 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); Rubinstein, 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 plaintiffs 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 instruction9that the trial judge gave to the jury incorporated

the “pretext plus” standard and is in direct contravention to the “permissive pretext standard” that
 

10

 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 of fact to

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

9

the Supreme Court laid out in Reeves10 regarding a plaintiff’s burden of proof under the ADEA. The

“pretext plus” strand of analysis requires a plaintiff not only to disprove an employer’s proffered

reasonsfor the discrimination, but also to introduce additional evidence of discrimination. See Kline

v. Tenn. Valley Auth., 128 F.3d 337, 343 (6th 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 plaintiff. See id.

The City relies on Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc)

to support its proposition that this Court strictly adheresto 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 plaintiff 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 plaintiff”) (emphasis added) (citations 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 (5th 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 Reeves.

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

Court’s holding [in Reeves] that the employer’s prevarication may be sufficient in many cases to
10

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 FifthCircuit precedent. SeeBlow, 236 F.3d

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

that a plaintiffmust introduce ‘additional, independent evidence of discrimination’ and reiterating that

a “plaintiff 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 circumstancesthat would prevent a rational fact-finder from concluding that the employer’s

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

530 U.S. at 149); see 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, establish sufficient evidence for a jury to find discrimination”)

(citing Reeves, 530 U.S. at 148). Thus, because the jury instructions failed to conform to Reeves 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 court erred when it refused to give a taint

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

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

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

corporation whether an employee of the corporation or a contractor,

possessing adequate authority, may bind a corporation 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,
 

11 Also, according to Eisenlohr’s testimony, Hatcher “called the shots” on the City Council. See

discussion, supra Factual and Procedural History. 

 

12 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 involving such taint. See 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 plaintiff’s employer, taint of the Council byHatcher 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 Hatcher11and Kaden, respectively the Mayor and

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

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

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

Circuit precedent directly supporting the requirement of a taint instruction, Ratliffrelies 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 (5th

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

decision maker); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th 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 corporation, 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 assertsthat the trial court erred when it excluded evidence fromthe 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. Vance

v. Union Planters Corp., 209 F.3d 438 (5th 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. See 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 sessionsin keeping with Texas law. See

TEX. GOVT. CODE ANN. § 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 documentation or tapes related to Ratliff’s

application or the general hiring process wasincidental and occurred because several members ofthe

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 (5th Cir. 2000). 

Indeed, the district and magistrate courts noted that the 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 Ratliff’s

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

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

exploration of the spoiliation issue. The record, therefore, does not reflect that the district court
 

13 Hence, the probative value of the Council’s destruction of the records and tapes did not

outweigh the prejudice of admitting the evidence. See FED. R. EVID. 403.

13

abused its discretion 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 to a plaintiff’s evidentiary burden in

discrimination cases outlined in Reeves, the district court erred in failing to give an inference

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.