United States Court of Appeals
For the First Circuit
No. 01-2512
SHAWNEE PATTEN,
Plaintiff, Appellant,
v.
WAL-MART STORES EAST, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
John P. Gause with whom Berman & Simmons was on brief for
appellant.
Christopher W. Nanos for appellee.
August 14, 2002
COFFIN, Senior Circuit Judge. Appellant Shawnee Patten, a
former employee of appellee Wal-Mart Stores East, Inc., challenges
two rulings made by the district court during the trial of her
analogous claims under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101-12213, and the Maine Human Rights Act ("MHRA"),
5 M.R.S.A. § 4551-4633. She asserts that the court incorrectly
instructed the jury on her burden of proof and improperly excluded
evidence of a state agency's finding of discrimination. Concluding
that the district court did not err, we affirm the judgment in
favor of Wal-Mart.
I. Background
Appellant suffers from Charcot-Marie-Tooth disease ("CMT"), a
disability similar in its effects to muscular dystrophy. Although
the CMT does not prevent appellant from working, it substantially
limits her ability to walk or stand for a long time. Because of
the illness, she often has pains in her arms and legs, and has an
unusual gait. Appellant’s supervisors at Wal-Mart were aware of
her disability from the time she first applied for a position
there. During appellant’s ten-month employment, Wal-Mart
repeatedly accommodated her by approving long-term leaves of
absence and transferring her to less-demanding positions when she
felt the CMT prevented her from adequately doing her job.
Throughout her tenure at Wal-Mart, which began on September
30, 1997, Patten’s presence was marked by accommodations and
absences, only sometimes because of CMT. In October 1997, Patten
suffered a back injury as a result of a fall unrelated to CMT.
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From then through December, Patten was transferred to two new
positions because she was restricted from various tasks, including
standing and lifting. From January 2 through January 27, 1998,
Patten took a leave of absence for a heart condition that was
induced by caffeine. From February 24 through June 1, 1998, Patten
took another leave of absence, related to CMT, for surgery to
diminish the "hammer toes" syndrome that she had been experiencing.
When she returned to work at the beginning of June, Patten was
restricted to only four hours of work per day and she could stand
during only one of those hours. Patten informed Theresa Barrows,
the personnel manager, of these limitations and was assigned to an
alternate position for one month, after which she returned to a
cashier's position.
Patten alleged that on the day she returned to work, she
overheard Barrows, Gerald Tyler, the store’s manager, and Paula
Carey, the assistant store manager, having a conversation about
her. Patten recalled hearing one of them make the following
remarks: "We know Shawnee has a disability, but we’re just tired of
this. We’re tired of her, and we just don’t feel that she needs to
be here."
Between June 27 and July 19, Patten missed six days of work,
left early on another day (without justification), and called in
sick one day. On July 19, Patten arrived at work, but felt ill.
After she asked to be excused, Carey called Patten to her office
and allegedly stated: "We understand that you have health problems.
We understand that you are disabled, but we don’t want you working
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in this store." When Patten asked if she was being fired because
of her disability, Carey allegedly responded, "you may take it as
you want, but you are not working here."
Appellant sued Wal-Mart for discriminating against her on the
basis of her disability, in violation of the ADA and the MHRA, and
the case proceeded to trial. All of Patten's allegations were
denied by management personnel. Carey testified that she
terminated Patten’s employment because of non-CMT-related
attendance problems that had developed during Patten’s final weeks
at Wal-Mart. Tyler testified that Patten was fired for "gross
misconduct of the attendance policy."
At the conclusion of the evidence, the district court
pertinently instructed the jury on termination as follows:
Termination. To succeed on her claim, Shawnee Patten has
the burden of proving by a preponderance of the evidence
that her disability was the determining factor in the
decision to discharge her . . . .
To prove that a disability was the determining factor in
the decision to terminate her, Shawnee Patten is not
required to prove that it was the sole motivation or the
primary motivation for Wal-Mart’s decision, but she must
prove by a preponderance of the evidence that her
disability actually made the difference in causing Wal-
Mart to terminate her employment.
The jury concluded that although appellant is disabled under
federal and state law, her disability was not the determining
factor in Wal-Mart’s decision to discharge her. It therefore found
in Wal-Mart’s favor. This appeal ensued.
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II. Discussion
A. The Contested Jury Instruction
Appellant contends that the district court incorrectly
instructed the jury that her supervisor’s discriminatory animus had
to be "the determining factor," rather than "a motivating factor,"
in the decision to terminate her. We review a contested jury
instruction de novo, Ponce v. Ashford Presbyterian Cmty. Hosp.,
238 F.3d 20, 24 (1st Cir. 2001), and begin by looking briefly at
the crowded landscape of discrimination cases.
These cases fall into two general categories. The more
common genre involves evidence of discrimination that is
circumstantial. In such cases the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973),
applies. For our purposes, it is enough to say here that after
plaintiff and defendant bear their preliminary burdens, plaintiff
bears the ultimate burden of proving that the alleged
discriminatory action was the determining factor in an adverse
employment action.
The second and less common type involves direct evidence,
evidence that unambiguously implicates an age discrimination
motive. Where such evidence exists, a mixed-motive analysis
applies; that is, a plaintiff's burden is tempered so that she need
prove only that the discriminatory action was a motivating factor
in an adverse employment decision.1 The defendant then may "assert
1
We need not get into the question of whether mixed-motive
analysis is available on strong circumstantial evidence of
discrimination. See Weston-Smith v. Cooley Dickinson Hosp., 282
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an affirmative defense, bearing the burdens of production and
persuasion that it