Kelly M. Moore, Pretext Instructions in Employment Discrimination Cases: Inferring a New Disadvantage for Plaintiffs: Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004)

57 Fla. L. Rev. 411 (2005) | | | |

TEXT :: Petitioner was fired from his position as the commercial fleet sales manager for Respondent’s car dealership in January of 2001. Respondent told Petitioner that he was being fired because although “he was doing a ‘good job’ . . . the company was going in a different direction.” Petitioner filed suit, alleging that he was discharged in violation of the Age Discrimination in Employment Act (ADEA), based in part on the comments of his supervisor. Petitioner claimed that his supervisor had referred to employees in the commercial fleet department as “geriatrics,” and to older employees as “geezer[s],” “dead wood,” and “old-fart[s].” At trial, Respondent claimed that Petitioner was terminated due to his poor performance. Petitioner characterized this explanation as a pretext. Petitioner then requested an instruction to inform the jury that if it found that Respondent’s explanation was a mere pretext, it was permitted, but not required, to infer that Respondent had discriminated against him. The district court refused to give the proposed instruction. The jury subsequently returned a verdict in Respondent’s favor, and the district court entered final judgment for Respondent. Petitioner requested a new trial, alleging that the court erred by refusing to give the proposed instruction, but this motion was denied. The Court of Appeals for the Eleventh Circuit affirmed the district court’s decision and HELD that the instruction the district court used adequately stated the law; thus, no specific instruction about pretext was necessary.

The ADEA provides that it is “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual . . . because of such individual’s age.” ADEA claims are analyzed by courts within the framework adopted by McDonnell Douglas Corp. v. Green, under which the burden of proof is on the plaintiff to prove a prima facie case of discrimination. After the plaintiff establishes the prima facie case, the burden of production is then on the employer to show one or more legitimate, nondiscriminatory reasons for the adverse employment decision. The plaintiff must, in the face of such an explanation, show intentional discrimination because the “ultimate burden of persuasion” remains at all times on the plaintiff to prove that the employer discriminated against him. One particular way of demonstrating this is to show that the explanation offered by the employer is a pretext. Exactly what impact a showing of pretext has on the burden of proof has been the subject of great debate. Similarly, there has been much discussion about how the jury should be instructed when the plaintiff claims pretext.


In St. Mary’s Honor Center v. Hicks, the Supreme Court considered whether a plaintiff’s showing that the employer’s stated reason for discharge was false mandated a finding of discrimination, or, alternatively, whether the plaintiff had to present affirmative evidence that the employer’s actions were discriminatory. The Court held that the plaintiff did not have to introduce further evidence to support a finding of discrimination. Instead, the “factfinder’s disbelief of the reasons put forward by the [employer] . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination.” The Court did, however, point out that a showing of pretext alone did not compel a decision for the plaintiff. According to the Court, when a plaintiff demonstrates pretext, the fact-finder is allowed to infer discrimination, but it is not required to do so. Setting this so-called “permissive pretext” standard helped resolve a circuit split over the correct weight to give a showing of pretext.

Palmer v. Board of Regents applied the “permissive pretext” standard set forth in Hicks to examine whether the trial court erred in refusing to give the plaintiff’s proposed jury instruction. The proposed jury instruction stated that discrimination was a permissible inference from a showing of pretext without need for additional evidence. The court first explained that, in reviewing jury instructions, it would find error only if the instructions “misstate the law or mislead the jury.” Furthermore, even if error occurred, the court stated that reversal was proper only when failure to give the proposed instructions actually prejudiced the objecting party.

Using this standard, the court held that refusal to charge the jury with one proposed jury instruction did not constitute error. The Court of Appeals for the Eleventh Circuit opined that the instructions given did not mislead the jury because they contained the correct legal standard and fully addressed all the issues. The court further found that the plaintiff was not prejudiced because the instructions given informed the jury that the plaintiff did not need to show additional evidence of discrimination if the jury inferred pretext; thus, the proposed instruction would have only clarified the issue. The court explained that failure to give the proposed instructions was not reversible error because the instructions the district court gave amply covered the information the proposed instructions sought to convey. The court did not consider whether the Hicks standard mandated a pretext instruction.

The Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. clarified the pretext standard of Hicks shortly after the Court of Appeals for the Eleventh Circuit decided Palmer. Though Hicks had ostensibly resolved a circuit split regarding the value to give pretext in determining if discrimination is present, circuit courts continued to give different weight to pretext after the decision. Reeves, however, stated unequivocally that a showing of pretext provided a permissible, but not mandatory, basis for finding that the employer discriminated against the employee. Proof of pretext, the Court explained, is “one form of circumstantial evidence that is probative of intentional discrimination.” This is because “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation.” In other words, showing that the explanation offered by the employer is a pretext is one way for the plaintiff to prove the discrimination.

The court in the instant case acknowledged that the “permissive pretext” standard set forth in Hicks and reinforced in Reeves was the correct standard, and that it had been applied in the Eleventh Circuit since Hicks was decided. Additionally, the instant court affirmed that the “permissive pretext” standard was the standard the Court of Appeals for the Eleventh Circuit applied in Palmer, which was decided after Hicks but before Reeves. Thus, Reeves did not alter the precedential value of Palmer.

Since the court held that Palmer was still an accurate reflection of the law, it examined Petitioner’s argument that Palmer was distinguishable from the instant case. Petitioner argued that Palmer was not controlling because in Palmer, the trial court instructed the jury that a plaintiff need not show additional evidence of discrimination if the employer’s explanation was found to be pretextual. In the instant case, however, the trial court offered no instructions on the legal implications of a showing of pretext. The court rejected Petitioner’s argument, holding that although the instructions in Palmer were different from those in the instant case, Palmer flatly stated that a pretext instruction was unnecessary.

The instant court further questioned whether it would find a failure to give a pretext instruction to be error even if Palmer were not controlling precedent. The court held that it was not error for the trial court to refuse to give Petitioner’s proposed instructions because the jury was not misled by the instructions given. The instructions given neither limited the way in which Petitioner could prove discrimination nor required the jury to believe that Respondent’s explanation was the true motivation for firing Petitioner. The jury, therefore, was still free to return a verdict for Petitioner if it found that the prima facie case was proved and that Respondent’s explanation was a pretext.

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