United States Court of Appeals
For the First Circuit
No. 99-1818
SHERRI WHITE,
Plaintiff, Appellee,
v.
NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Nancy J. Smith, Assistant Attorney General, with whom Philip T.
McLaughlin, Attorney General, was on brief for appellant.
Michael J. Sheehan for appellee.
August 2, 2000
2
BOWNES, Senior Circuit Judge. The plaintiff-appellee, Sherri
White, brought suit in the United States District Court for the
District of New Hampshire against the defendant-appellant, the New
Hampshire Department of Corrections (“DOC”), alleging violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000h-6,
and state law claims of wrongful discharge and intentional infliction
of emotional distress.1 Specifically, the plaintiff claimed that she
was the victim of direct sexual harassment, of a hostile work
environment, and of retaliation after she complained of the harassment.
The defendant moved for summary judgment on the sexual
harassment claim. The court (Barbadoro, J.) denied the motion and the
case proceeded to trial. The defendant moved in limine to limit
evidence to issues in the administrative complaint and the federal
complaint. The district court denied this motion. At the close of the
plaintiff's case, the defendant moved for judgment as a matter of law.
The district court took the motion under advisement. The court charged
the jury, and the defendant objected to part of the charge.
Defendant's objection was overruled and the court submitted the case to
the jury. The jury returned a verdict for the plaintiff on all three
claims with an award of damages in the amount of $45,000.00. The
1 Following an uncontested motion by the DOC, the district
court dismissed the state law claims.
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defendant renewed its motion for judgment as a matter of law verbally
when the verdict was returned and thereafter in writing. The district
court denied the defendant's motions, and this appeal followed.
On appeal, the defendant presents essentially three issues
for review: (1) the plaintiff did not present sufficient evidence to
support her claims of sexual harassment, hostile work environment,
retaliation, and that the plaintiff had not proven that the defendant
was liable for the acts of its employees;2 (2) the district court erred
in denying the defendant's motion in limine to exclude evidence; and
(3) the district court improperly instructed the jury by misstating the
law. For the reasons stated below, we affirm the district court in all
respects.
I. Facts
We briefly describe the facts here, but discuss them in
greater detail where applicable and necessary for our discussion. The
plaintiff was hired as a corrections officer (“CO”) at the New
Hampshire State Prison in Concord, New Hampshire in January 1993. She
was qualified for the CO position and received positive evaluations in
January 1994 and 1995. In early 1995, the plaintiff became a “direct
supervision officer” (“DSO”) for the inmates housed in the Hancock Unit
(“H-Building”). In May of 1995, the plaintiff became the DSO of “B
2 The plaintiff had sued only the DOC; she had not sued any of
its employees individually.
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Pod.” Shortly thereafter, tensions developed between some of the other
employees and the plaintiff. Some of these tensions were expressed in
statements of a sexual nature directed at the plaintiff.
The plaintiff filed a complaint with the Discrimination
Review Committee (“DRC”) of the DOC on November 3, 1995 alleging sexual
harassment. She also filed a copy of her complaint with the New
Hampshire Human Rights Commission and the Equal Employment Opportunity
Commission. The plaintiff's suit in the district court followed. The
plaintiff alleged that, after she filed her administrative complaint,
the DOC and its employees retaliated against her.
II. Sufficiency of the Evidence
The defendant argues before us that the district court erred
when it denied the defendant's motion for summary judgment and motions
for judgment as a matter of law. The DOC claims that the plaintiff did
not provide sufficient evidence to prove the plaintiff's allegations.
Even assuming that the decision is reviewable on this appeal
- a matter on which we take no view - there is no point in discussing
the court's ruling on the summary judgment motion separately from our
treatment of the denial of the defendant's motions for judgment as a
matter of law. This is because we find that the evidence supports the
judge's denial of the motions for judgment as a matter of law3 and this
3 Federal Rule of Civil Procedure 50(a) governs motions for
judgment as a matter of law:
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amounts to an affirmance of the court's denial of the summary judgment
motion.
We review the court's denial of defendant's motions for
judgment as a matter of law de novo, but examine the evidence and
inferences therefrom in the light most favorable to the plaintiff. See
Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir.
2000). We may reverse only if a reasonable person could not have
reached the conclusion of the jury. See Negron-Rivera v. Rivera-
Claudio, 204 F.3d 287, 289-90 (1st Cir. 2000). In conducting our de
novo review, we “may not consider the credibility of witnesses, resolve
conflicts in testimony, or evaluate the weight of the evidence." Katz
v. City Metal Co., 87 F.3d 26, 28 (1st Cir. 1996) (internal quotation
marks omitted). The Supreme Court has stated that when “entertaining
a motion for judgment as a matter of law, the court should review all
of the evidence in the record. In doing so, however, the court must
draw all reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence.” Reeves
(1) If during a trial by jury a party has
been fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on that
issue, the court may determine the issue against
that party and may grant a motion for judgment as
a matter of law against that party with respect
to a claim or defense that cannot under the
controlling law be maintained or defeated without
a favorable finding on that issue.
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v. Sanderson Plumbing Prods., Inc., U.S. , 120 S. Ct. 2097, 2110
(2000).
Once a jury renders a verdict, a “heavy burden” is placed on
one who challenges it. See United States v. Scharon, 187 F.3d 17, 20
(1st Cir. 1999) (citations omitted). We stated that:
One who challenges the sufficiency of the
evidence bears a heavy burden: he must show that
no rational jury could have found him guilty
beyond a reasonable doubt. . . . We review the
sufficiency of the evidence as a whole, in a
light most favorable to the verdict, taking into
consideration all reasonable inferences. . . . We
resolve all credibility issues in favor of the
verdict. . . . The evidence may be entirely
circumstantial, and need not exclude every
hypothesis of innocence; that is, the factfinder
may decide among reasonable interpretations of
the evidence.
Id.
Title VII of the Civil Rights Act of 1964 makes it “an
unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). The Supreme Court has stated that,
this language is not limited to 'economic' or
'tangible' discrimination. The phrase 'terms,
conditions, or privileges of employment' evinces
a congressional intent to strike at the entire
spectrum of disparate treatment of men and women
in employment, which includes requiring people to
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work in a discriminatorily hostile or abusive
environment.
Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (some internal
quotation marks omitted); see also Meritor Sav. Bank v. Vinson, 477
U.S. 57, 64 (1986); Los Angeles Dep't of Water and Power v. Manhart,
435 U.S. 702, 707 n.13 (1978).
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create
an abusive working environment, Title VII is violated.” Oncale v.
Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (internal quotation
marks omitted) (quoting Harris, 510 U.S. at 21). The Supreme Court
directs us to “determine whether an environment is sufficiently hostile
or abusive by looking at all the circumstances, including the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee's work performance.”
Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998) (internal
quotation marks omitted); Harris, 510 U.S. at 23.
After careful review of the entire record, we hold that the
facts adduced were sufficient for the jury verdict. We review the
evidence on sexual harassment and a hostile work environment.
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The plaintiff pointed to numerous comments made by other
employees either to or about her which were “sufficiently severe or
pervasive to alter the conditions of [her] employment and create an
abusive working environment.” Oncale, 523 U.S. at 78. The record
reflects that Officer Colby (a male employee at the DOC who held the
same position as the plaintiff) wanted to “keep an eye” on the
plaintiff because he believed she was having a sexual affair with
inmate York. Officer Colby told other employees: “I think she's in
there blowing him and screwing him.”4 Officer Colby referred to the
plaintiff as “Mrs. York.” Inmates also referred to the plaintiff as
“Mrs. York” because of the conversations they either heard or had with
other prison employees.
The plaintiff also evinced that sexual conversations and
jokes were common at the DOC. The male employees graphically spoke of
their evenings at clubs and bars, read pornographic magazines at work,
discussed the size of mens' penises and stared at women's breasts. Two
male employees openly discussed their experiences with Prozac and how
it affected their sex lives. A sergeant stated: “Oh, yeah, it will go
up but it won't go down.” A corporal explained that he had trouble
getting an erection, and said to the plaintiff: “Sherri, I'd have to
tip you upside down and dunk you like a tea bag.” Plaintiff alleged
that another employee said to her: “Gee, [the corporal] owed me a blow
4 There is no evidence in the record to support this statement.
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job for today, but seeing as though he's not here, you want to take
care of that for me?” The plaintiff testified that the “disgusting
comments,” conversations and treatment of her were “continuing,”
“consistent” and occurred “everyday.”
There was also evidence that the plaintiff was subjected to
disparate treatment because she was a woman. For example, the
plaintiff was told by her supervisor not to enter the supply room with
an inmate because she was a woman and something could happen to her.
The supply room was frequently used by employees as a place where
prison guards could speak privately with inmates. The supervisor
claimed that he feared that the plaintiff would be hurt because she is
“a very pretty lady and we work in a hostile situation.” The record
reflects, however, that male guards had been hurt when they accompanied
an inmate into a supply room, yet no male guard was given the same
warning as the plaintiff and no male employee was prohibited from
accompanying an inmate into the supply room.
Another example of disparate treatment was when an employee
of DOC asked the inmates living on the plaintiff's pod how they felt
about a woman running their pod. The male employees of the DOC often
commented that they would not allow their wives to work in the prison,
and told the plaintiff that if she were their wife, they would not want
her working there. Nothing like that was said to any male employee.
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It must also be noted that the DOC's own internal
investigation found that “the work environment became intimidating and
hostile for [the plaintiff] caused by inappropriate behavior by fellow
workers and unprofessionalism of supervisors.” The investigators
further found that “the sexual remarks and innuendos that were made
concerning [the plaintiff] and an inmate[] made this a sexual
harassment case.” The investigation concluded that “the fact that the
chain of command broke down . . . the perceived favoritism of [the
plaintiff] by fellow officers and the sexual remarks and innuendos
made, created an intimidating and hostile work environment.”
The plaintiff provided more than sufficient evidence to
support a claim for hostile work environment. The evidence
demonstrates that her workplace was “permeated with discriminatory
intimidation, ridicule and insult that [was] sufficiently severe or
pervasive to alter the conditions of [her] employment and create an
abusive working environment.” Oncale, 523 U.S. at 78; Harris, 510 U.S.
at 21 (internal citations and quotation marks omitted).
We have stated that “[o]verriding a jury verdict is warranted
only if the evidence 'is so one-sided that the movant is plainly
entitled to judgment, for reasonable minds could not differ as to the
outcome. '” Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 208
(1st Cir. 1996) (quoting Gibson v. City of Cranston, 37 F.3d 731, 735
(1st Cir. 1994)). No such evidence exists in this case and we affirm
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the district court's denial of the defendant's motions for judgment as
a matter of law on this ground.
We also hold that there is ample evidence in the record to
support the plaintiff's claim of employer liability. Proving employer
liability depends in the first instance upon whether the alleged
harassment is caused by a co-employee of the victim or a supervisor.
If the harassment is caused by a co-employee, the employer is liable if
it “knew or should have known of the charged sexual harassment and
failed to implement prompt and appropriate corrective action.”
Blanketship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir.
1997) (internal quotation marks omitted). If the offender is a
supervisor, the employer is liable unless it proves the affirmative
defense “that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and . . . that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.” Faragher, 524 U.S. at 807. Review of the
record reveals ample evidence for the jury to find the DOC liable for
the conduct of its employees—both supervisors and co-employees. The
plaintiff showed that the DOC was aware of the charged sexual
harassment because the plaintiff complained to her supervisors and
subsequently filed a complaint with the Discrimination Review Committee
of the DOC. The plaintiff presented evidence from which it could be
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found that the DOC did not handle the internal investigation properly
or timely, and that the DOC allowed the conduct and comments to
continue. Therefore, it was appropriate for the district court to deny
the defendant's motion for judgment as a matter of law and allow the
jury to determine that the DOC was liable for the conduct of
plaintiff's co-employees.
The evidence in the record also supports the claim that the
DOC was liable for the conduct of its supervisors because it shows that
the DOC failed to prove that it “exercised reasonable care to prevent
and correct promptly any sexually harassing behavior.” Faragher, 524
U.S. at 778. In addition, the plaintiff “[took] advantage of any
preventative or corrective opportunities provided by the employer,”
id., by filing her complaint with the DOC's internal investigatory
committee. The record contains evidence from which the jury could have
concluded that the DOC did not handle the internal investigation
properly or timely, and that the DOC allowed the conduct and comments
to continue.
The DOC further argues that the plaintiff failed to establish
a prima facie case of retaliation. To establish a prima facie case of
retaliation, a plaintiff must prove that “(1) [s]he engaged in
protected conduct under Title VII; (2) [s]he suffered an adverse
employment action; and (3) the adverse action is casually connected to
the protected activity.” Hernandez-Torres v. Intercontinental Trading,
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Inc., 158 F.3d 43, 47 (1st Cir. 1998). Review of the record indicates
that the plaintiff did establish a prima facie case of retaliation.
The evidence adduced by the plaintiff was as follows: The
plaintiff engaged in protected activity by filing her internal and EEOC
complaints. See Hernandez-Torres, 158 F.3d at 47. The plaintiff
presented ample evidence for a jury to find that she suffered adverse
employment actions subsequent to the filing of her complaint. Adverse
employment actions include “demotions, disadvantageous transfers or
assignments, refusals to promote, unwarranted negative job evaluations,
and toleration of harassment by other employees.” Id. The plaintiff
introduced evidence that other employees continued to harass her after
she filed her complaint; that she was transferred out of her unit
without her consent and not reassigned, but left to find another unit;
and ultimately constructively discharged. There was sufficient
evidence for a jury to find that the plaintiff suffered adverse
employment action because she filed a complaint.
III. Motion In Limine
Prior to trial, the defendant moved in limine “to limit the
evidence and testimony . . . to the issues raised by Plaintiff's
internal sexual harassment complaint of November 3, 1995 and her claims
of subsequent retaliation.” The defendant argued that “allowing
testimony concerning issues of which Plaintiff did not complain would
not be relevant.”
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The evidence in question was first brought up during the
plaintiff's deposition. She claimed there were acts of sexual
harassment which took place prior to the filing of the plaintiff's
administrative complaint. The evidence included allegations that
Corporal Brochu read pornography in the office; that Brochu, Hart and
Bell used foul language and/or made sexual jokes or comments in her
presence that she found offensive; and allegations about various other
employees who were not specifically named in her administrative
complaint.
The district court, ruling from the bench, denied the motion.
The defendant argues that it was “an abuse of discretion to allow this
evidence as [plaintiff] failed to exhaust administrative remedies
regarding these allegations and there could be no relevance as the acts
were not the subject of her complaint.”
We review the district court's denial of the motion in limine
for abuse of discretion. See JOM, Inc. v. Adell Plastics, Inc., 193
F.3d 47, 50 (1st Cir. 1999); see also United States v. Lozada-Rivera,
177 F.3d 98, 103 (1st Cir. 1999).
The district court determined that though the evidence in
question was not specifically articulated in the administrative
complaint, it was relevant to the claims set forth therein. The court
denied the motion and instructed the defendant that it could later
argue to the jury that “those matters should not be considered because
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[the DOC was not] negligent in failing to stop them because [the DOC]
didn't know about them because the plaintiff never brought them to
[its] attention and the jury will have to find out whether there was
negligence or not.”
We hold that the evidence is relevant. “'Relevant evidence'
means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Civ.
P. 401. The deposition evidence was directly related to the
plaintiff's claim that she worked in a sexually hostile environment.
The defendant also contends that the district court abused
its discretion when it denied the motion in limine to exclude evidence
because the plaintiff “failed to exhaust administrative remedies
regarding [those] allegations.” The plaintiff argues that we need not
consider this exhaustion argument because the defendant waived it when
it failed to articulate it to the district court. Our reading of the
record does not convince us that the defendant waived this contention;
we therefore decide it on the merits.
We have held that the administrative charge “affords formal
notice to the employer and prospective defendant of the charges that
have been made against it,” Powers v. Grinnell Corp., 915 F.2d 34, 37
(1st Cir. 1990) (internal citations and quotation marks omitted), and
“[t]he scope of the civil complaint is accordingly limited to the
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charge filed with the EEOC and the investigation which can reasonably
be expected to grow out of that charge.” Id.; see also Lattimore v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). We have also stated
that
[a]n administrative charge is not a blueprint for
the litigation to follow. . . . [and] the exact
wording of the charge of discrimination need not
presage with literary exactitude the judicial
pleadings which may follow. . . . Rather, the
critical question is whether the claims set forth
in the civil complaint come within the scope of
the EEOC investigation which can reasonably be
expected to grow out of the charge of
discrimination.
Powers, 915 F.2d at 38 (internal citations and quotation marks
omitted).
Here, the plaintiff filed her administrative complaint with
the New Hampshire Human Rights Commission and the EEOC, claiming that
she was discriminated against on the basis of her gender, subjected to
a hostile work environment and retaliated against after reporting the
alleged sexual harassment. In her administrative complaint, the
plaintiff gives ten examples of the alleged discrimination in a
“partial list” (emphasis added), consisting of almost two pages.
Though the administrative complaint does not spell out all of the
specific comments made by various employees, it was sufficient to
describe the essential nature of the charge and to lead to a reasonable
investigation thereof. As such, the evidence that the defendant wished
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to exclude fell within the scope of the administrative complaint and
the plaintiff was entitled to bring it before the district court. See
Powers, 915 F.2d at 38. The district court did not abuse its
discretion when it denied the DOC's motion in limine and allowed the
evidence to be introduced at trial.
IV. Jury Instruction
The DOC argues that “the jury instruction regarding
retaliation was inadequate and is likely to have misled or confused the
jury regarding the applicable law.” It contends that the court erred
when it “refused” to “instruct the jury that the plaintiff was required
to prove that the [defendant's] given reasons [for discharging the
plaintiff] were a pretext and that the real reason was retaliatory
intent.” The DOC claims that the jury instruction, as charged,
violates the precepts of the burden-shifting scheme, articulated by the
Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and
constitutes reversible error.
The standard of review for preserved challenges to jury
instructions is well-settled:
The standard of review is ironclad: The trial
court's refusal to give a particular instruction
constitutes reversible error only if the
requested instruction was (1) correct as a matter
of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3)
integral to an important point in the case.
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United States v. DeStefano, 59 F.3d 1, 2 (1995) (internal quotation
marks omitted).
The district court instructed the jury regarding the
retaliation claim as follows:
To prove a retaliation claim under Title
VII the plaintiff must prove by a preponderance
of the evidence that:
(1) plaintiff filed a sexual harassment
complaint with her employer,
(2) after the plaintiff filed her sexual
harassment complaint she was subjected to an
adverse employment action by her employer, and
(3) that the employer took the adverse
employment action because she had filed a sexual
harassment complaint.
Adverse employment actions may include
actions by the employer amounting to a
constructive discharge, the preparation of an
unwarranted negative employment evaluation, an
unwarranted disadvantageous transfer, or
toleration of harassment by employees.
Plaintiff does not have to prove that her
sexual harassment claim has merit in order to
prove her retaliation claim.
The defendant requested a more explicit explanation of the McDonnell
Douglas burden-shifting scheme. The DOC argues that, in addition to
the charge given, the jury should have been instructed explicitly as to
the shifting burdens and upon which party's shoulders they fell.
Specifically, the DOC objects to the absence of language in the
district court's instruction pertaining to the plaintiff's burden to
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show that the reason for termination proffered by the DOC was
pretextual.5
We need not recount the intricacies of the McDonnell Douglas
test here. The essence of McDonnell Douglas is a tripartite regimen.
The plaintiff must first prove the prima facie case for retaliatory
discharge. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). Thereafter, the defendant must rebut the presumption
created by the prima facie case by producing a legitimate
nondiscriminatory reason for the employer's action. See McDonnell
Douglas, 411 U.S. at 802. Once the defendant meets this burden, "the
trier of fact proceeds to the ultimate question: whether plaintiff has
proved that the defendant intentionally discriminated against [the
plaintiff]” on the basis of the plaintiff's protected characteristic or
action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). The
plaintiff must "be given a full and fair opportunity to demonstrate by
competent evidence that the presumptively valid reasons for his
rejection were in fact a cover-up for a . . . discriminatory decision."
McDonnell Douglas, 411 U.S. at 805.
The district court's jury instruction admittedly does not
follow the exact regimen of McDonnell Douglas. It need not do so,
5 The plaintiff argues that the DOC did not properly object to
this portion of the charge, and therefore, it was not properly
preserved for our consideration. Our reading of the transcript,
however, reveals otherwise and we will consider the argument on the
merits.
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however, to be sufficient. See Loeb v. Textron, Inc., 600 F.2d 1003,
1016 (1st Cir. 1979) (“McDonnell Douglas was not written as a
prospective jury charge; to read its technical aspects to a jury . . .
will add little to a juror's understanding of the case.”). What is
important is that the instructions “identify the important factual
issues,” id., for the jury to resolve.
The chief complaint of the defendant here is that the jury
was not told that it had to find pretext, and that the burden of
showing pretext lay with the plaintiff. While we agree that this is an
“important factual issue,” we think that it was sufficiently presented
to the jury. As we stated in Loeb: “The central issue, which the court
must put directly to the jury, is whether or not plaintiff was
discharged 'because of [protected conduct]'” Id. at 1017. Undoubtedly,
the court put this issue to the jury. The court's instruction made
clear to the jury that, in order to find for the plaintiff, it had to
find “that the employer took the adverse employment action because she
had filed a sexual harassment complaint.” (emphasis added). This
substantially incorporated into the charge exactly what the defendant
wished.
We refuse to impose upon district courts a rigidly formalist
view of McDonnell Douglas' requirements. As we stated in Loeb, “The
Supreme Court has made it abundantly clear that McDonnell Douglas was
intended to be neither 'rigid, mechanized, or ritualistic' nor the
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exclusive method for proving a claim of discrimination.” Loeb, 600
F.2d at 1017 (internal citation omitted). To adopt the defendants'
view would be to impose just such a “rigid, mechanized, [and]
ritualistic” requirement on the district courts.
V. Conclusion
For the reasons set forth above, we affirm the district
court. Costs awarded to appellee.
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