FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRIETTA BROWNING, 

Plaintiff-Appellant,

v.

No. 07-35557

UNITED STATES OF AMERICA; UNITED

D.C. No. STATES DEPARTMENT OF TREASURY;  CV-05-01471-BR UNITED STATES INTERNAL REVENUE

SERVICE; HENRY M. PAULSON, JR.,* OPINION

Secretary of the Department of the

Treasury,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

March 3, 2009—Portland, Oregon

Filed May 22, 2009

Before: Susan P. Graber, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Fisher

*Henry M. Paulson, Jr. is substituted for his predecessor, John W.

Snow, as Secretary General of the United States, pursuant to Fed. R. App.

P. 43(c)(2). 

6079
COUNSEL

Beth Creighton (argued), Zan Tewksbury, Steenson, Schumann, Tewksbury, Creighton & Rose, Portland, Oregon, for

the plaintiff-appellant. 

Karin J. Immergut, United States Attorney, Kelly A. Zusman

(argued), Assistant United States Attorney, Portland, Oregon,

for the defendants-appellees.

OPINION

FISHER, Circuit Judge: 

We address the issue of whether a district court’s refusal to

give a permissive jury instruction regarding pretext in an

employment discrimination case is reversible error.1 We reaffirm that so long as the jury instructions set forth the essential

elements that the plaintiff must prove, a district court does not

1Browning also appeals several evidentiary rulings, which we address

in a concurrently filed memorandum disposition. 

BROWNING v. UNITED STATES 6081
abuse its discretion in declining to give an instruction explicitly addressing pretext.

I.

Henrietta Browning has worked at an Internal Revenue Service call center in Portland, Oregon, since 1989. In 1998, she

was temporarily promoted to the position of team leader,

assuming responsibility for the supervision of a group of

employees. The following year, incoming operations manager

Gloria Candanoza made Browning’s promotion permanent.

After Browning transferred from the night shift to the day

shift in 2002, she was supervised by department manager Art

Ayotte. 

As a team leader, Browning was required to monitor a certain number of the calls performed by each employee on her

team each month, write a detailed critique of the call and enter

the review into a computerized database. Team leaders were

also each assigned responsibility for an “application” (a distinct area of tax law) and expected to similarly monitor

employees’ performance regarding that application. In 2003,

Ayotte’s performance evaluation for Browning rated her as

not having met expectations because she had failed to complete the required number of phone reviews, and Browning

was placed on a 60-day performance improvement plan

(“PIP”) to address her shortcomings. Browning met with

Ayotte weekly during the course of her PIP and believed she

was on pace to satisfactorily complete the PIP requirements.

At the end of her PIP, however, Ayotte concluded that Browning still had not completed the required number of phone

reviews for employees within her application or submitted

requisite employee security reviews, and recommended that

Browning be demoted. Browning contested the demotion, but

— although a labor relations specialist agreed a miscommunication was responsible for Browning’s failure to complete one

element of her PIP requirements — the rest of her objections

were found not to be valid and Browning was demoted.

6082 BROWNING v. UNITED STATES
Browning was reassigned to her former position as a taxpayer

service specialist. 

II.

In November 2003, Browning filed a complaint with the

Equal Employment Office alleging racial discrimination and

retaliation for a prior EEO complaint that Browning had

brought against another supervisor. After the EEO investigation found no discrimination had occurred, Browning filed

this lawsuit in federal district court alleging racial discrimination and retaliation. At the close of trial, Browning requested

that the following instruction be given to the jury: 

Consistent with the general principle of law that a

party’s dishonesty about a material fact may be considered as affirmative evidence of guilt, if you find

that the defendants’ explanation about why they took

adverse action against a plaintiff is not worthy of

belief, you may infer a discriminatory or retaliatory

motive from that fact. 

She based her proposed instruction on a passage in Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147

(2000), which held: 

In appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation

that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent

with the general principle of evidence law that the

factfinder is entitled to consider a party’s dishonesty

about a material fact as “affirmative evidence of

guilt.” 

The district court refused to give the requested instruction.

Browning now appeals, arguing that the refusal to give a perBROWNING v. UNITED STATES 6083
missive pretext instruction was reversible error. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

III.

Jury instructions are reviewed for an abuse of discretion.

See Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). We

consider the jury instructions as a whole and evaluate whether

they were misleading or inadequate, see Guebara v. Allstate

Ins. Co., 237 F.3d 987, 992 (9th Cir 2001), and whether any

error was harmless, see Swinton v. Potomac Corp., 270 F.3d

794, 805 (9th Cir. 2001). 

[1] In Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338

(9th Cir. 1987), we held that refusal to give a permissive pretext jury instruction was not reversible error. Cassino sued his

employer, Reichhold Chemicals, for age discrimination.

Reichhold requested the following instruction: “So long as

Reichhold states a legitimate reason for the discharge of Mr.

Cassino, Mr. Cassino has the burden of proving that his age

was a determining factor in Reichhold’s decision and that

Reichhold’s stated reason was merely a pretext for discrimination.” Id. at 1344. The district court refused and gave only

the following instructions:

1. [Cassino] belongs to a protected group. 

2. He was the subject of age discrimination, and

but for his age, he would not have been terminated

by [Reichhold]. 

3. [Reichhold] intentionally discriminated against

[Cassino] because of his age. 

4. That as a direct proximate result of such age discrimination, [Cassino] sustained damages. 

6084 BROWNING v. UNITED STATES
Id. The jury found in favor of Cassino. See id. at 1342. We

held that the refusal to give Reichhold’s proposed instruction

was appropriate: 

The jury was instructed that it was Cassino’s burden

to prove that he would not have been fired “but for

his age.” Because the instructions reviewed as a

whole set forth the essential elements that Cassino

had to prove in order to prevail, the court did not err

in refusing to give Reichhold’s proposed pretext

instructions. 

Id. at 1345; see also Merrick v. Farmers Ins. Group, 892 F.2d

1434, 1441 (9th Cir. 1990) (holding two jury instructions that

“read together clearly state that the existence of a legitimate

basis for terminating [an employee] would not save [the

employer] if the retaliatory motive was the ‘but for’ cause of

his discharge” were “an adequate statement of the law as it

applies to pretext cases” and did not require separate pretext

instruction). 

[2] In the years since Cassino, a circuit split has emerged

on the question of permissive pretext instructions.2 Analysis

of discrimination claims has also evolved since Cassino was

decided in 1987. We see no reason, however, to depart from

Cassino’s basic holding that if the jury instructions set forth

the essential elements the plaintiff needs to prove, the district

court’s refusal to give an instruction explicitly addressing pretext is not reversible error. 

2Compare Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232

(10th Cir. 2002), and Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir.

2001), and Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998),

and Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), with Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004) (holding

permissive pretext instruction is not required), and Moore v. Robertson

Fire Prot. Dist., 249 F.3d 786 (8th Cir. 2001), and Fite v. Digital Equip.

Corp., 232 F.3d 3 (1st Cir. 2000), and Gehring v. Case Corp., 43 F.3d 340

(7th Cir. 1994). 

BROWNING v. UNITED STATES 6085
Here, the district court gave the following instructions

regarding the reasons the IRS demoted Browning: 

In the plaintiff’s first claim, she contends that her

race was a motivating factor in the defendants’ allegedly discriminatory conduct towards her. In her second claim, she contends the fact that she complained

about discrimination in the workplace was a motivating factor in the defendants’ allegedly retaliatory

conduct toward her. 

. . . 

Now, in order to prevail on her first claim for race

discrimination, the plaintiff must prove the defendants took certain actions against her and that the

plaintiff’s race was a motivating factor in the defendants taking the action. 

In particular, the plaintiff must prove . . . that her

race was a motivating factor in the defendants’ conduct. 

. . . . 

In order to prevail on her second claim for retaliation, the plaintiff must prove the defendants took

certain actions against her because she complained

about race discrimination in the workplace. In particular, the plaintiff must prove . . . that her protected

activity was a motivating factor in the defendants’

conduct. 

The district court defined “motivating factor” as “a factor that

played a role in the decisions” of Candanoza or Ayotte. The

court also instructed the jury that it should “weigh and evaluate the testimony and the credibility of each witness” and that

it should consider both direct and circumstantial evidence

6086 BROWNING v. UNITED STATES
(after explaining both concepts). The court told Browning

that, although it would not give her requested pretext instruction, she was free to explain to the jurors that they could find

the IRS’s reasons for firing her to be pretextual and infer an

unlawful motive. Specifically, the court said: 

I’m mindful of Ninth Circuit authority that cautions trial judges against giving any kind of inference

instruction, and I’m mindful of the risk that an inference instruction can be seen as potentially a comment on the evidence; and so I’m not inclined to give

any permissive inference instruction and instead to

permit counsel full latitude to argue inferences,

based on a circumstantial evidence instruction. 

Apparently in response to the court’s offer, Browning subsequently argued to the jury that “if you don’t believe the IRS

witnesses, then you have the right to find for Ms. Browning.”

Although cursory, Browning’s argument advised the jury that

if it did not believe the IRS’s justifications for Browning’s

demotion, it could find in her favor. 

[3] In sum, the district court’s jury instructions “set forth

the essential elements that [Browning] had to prove in order

to prevail,” and Browning was free to explain those elements

to the jury in order to make clear that finding the IRS’s proffered reasons for Browning’s demotion pretextual could justify the jury finding the IRS had discriminated against

Browning. Cassino, 817 F.2d at 1345; cf. Conroy v. Abraham

Chevrolet-Tampa, Inc., 375 F.3d 1228, 1235 (11th Cir. 2004)

(“The charge to the jury gave instructions on drawing inferences from the evidence and weighing the credibility of witnesses. This was sufficient to allow the jury to find

discrimination or retaliation so long as they disbelieved Abraham Chevrolet’s explanation for Conroy’s termination. We

also find it significant that Conroy’s counsel made good use

of his opportunity to argue pretext to the jury in closing stateBROWNING v. UNITED STATES 6087
ments . . . .”). The district court did not abuse its discretion

in rejecting Browning’s more explicit pretext instruction. 

AFFIRMED.

6088 BROWNING v. UNITED STATES