United States Court of Appeals
For the First Circuit
No. 98-1916
CLEMENTE FEBRES, A/K/A CLEMENTE FEBRES-MORALES, ET AL.,
Plaintiffs, Appellants,
v.
CHALLENGER CARIBBEAN CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Juan Rafael Gonzalez Muñoz, with whom José Luis Gonzalez
Castañer was on brief, for appellants.
Graciela J. Belaval, with whom Martinez, Odell & Calabria
was on brief, for appellee.
June 8, 2000
SELYA, Circuit Judge. Ever since Justice O'Connor
highlighted the importance of direct evidence of discrimination,
see Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77 (1989)
(O'Connor, J., concurring), courts have struggled to determine
whether particular pieces of evidence can be so classified.
Following the passage of the Civil Rights Act of 1991, Pub. L.
No. 102-166, § 102, 105 Stat. 1071, 1073 (codified at 42 U.S.C.
§ 1981a(c)(1)), this struggle took on an added dimension: the
Act made jury trials widely available in discrimination cases,
thus sparking interest in how juries were to be instructed when
direct evidence of discrimination had been introduced. We have
approached these subjects cautiously, eschewing broad
generalizations. See, e.g., Fernandes v. Costa Bros. Masonry,
199 F.3d 572, 581-83 (1st Cir. 1999). This appeal requires us
to take an incremental step along the decisional path.
I. BACKGROUND
On February 1, 1994, Thomas & Betts Corporation
(Thomas) acquired the assets of Challenger Caribbean Corporation
(CCC), a manufacturer of circuit breakers and switches.1 Thomas
decided to shut down CCC's production line at Canóvanas and
transfer the work to a Vega Baja facility operated by Thomas &
Betts Caribe, Inc. (Caribe). One virtue of this consolidation
1CCC is now known as Thomas & Betts Puerto Rico, Inc.
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was the opportunity to downsize. Thomas placed a trio of
executives — Frank Domenech (the manager of the Vega Baja
plant), Ojel Rodríguez (his Canóvanas counterpart), and Ramón
Becker (Caribe's human resources director) — in charge of
deciding which CCC employees were to be transferred and which
were to be shown the door. The triumvirate met several times to
determine the employees' fate.
On December 2, 1994, Domenech announced the closing of
the Canóvanas plant. He also disclosed that slightly less than
half of CCC's administrative employees (17 out of 36) would be
transferred to Vega Baja. The nine appellants — Michael Dalmau
(age 47), Clemente Febres (age 53), Rafael Hiraldo (age 46),
Carmen López (age 41), Jesús Ortiz (age 64), José Pomales (age
54), Emma Rovira (age 43), Gloria Soto (age 47), and Luis Zayas
(age 62) — were not part of that 17-member complement.
Invoking the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634, the appellants sued. CCC defended
on the ground that its decisions were based on legitimate, age-
neutral criteria. Following a lengthy trial, the jury returned
a verdict in CCC's favor.
The evidence at trial was a mixed bag, some favoring
the appellants and some favoring CCC. Citing book and verse
would for the most part serve no useful purpose. The sole
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exception concerns Becker's testimony that, as the triumvirs
began mulling transfer decisions, Domenech advised him privately
that three criteria were used to determine which employees would
be moved to Vega Baja: job performance, union identification,
and "in some cases, the age." The critical questions raised by
this appeal concern the character of this bit of testimony and
the jury instructions related to it. We shall return to those
questions shortly. At this juncture, however, we pause to offer
a quick primer on the effect of direct evidence in a
discrimination case.
II. THE LEGAL LANDSCAPE
A plaintiff alleging disparate treatment under a
statute like the ADEA usually proceeds by means of the familiar
framework engendered in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973). We have described the mechanics of
this approach (customarily called the "pretext" approach) in
considerable detail, see, e.g., Fernandes, 199 F.3d at 579-81;
Mesnick v. General Elec. Co., 950 F.2d 816, 823-24 (1st Cir.
1991), and need not elaborate upon it here. What is significant
for present purposes is that, under pretext analysis, the burden
of persuasion remains with the plaintiff throughout the case.
See Fernandes, 199 F.3d at 581; Mesnick, 950 F.2d at 823.
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In some situations, however, a plaintiff may be
entitled to use an approach that relieves her of this
unremitting burden of persuasion. The key that unlocks this
door is the existence of direct evidence that a proscribed
factor (such as age, gender, race, or national origin) played a
motivating part in the disputed employment decision. See Price
Waterhouse, 490 U.S. at 276-77 (O'Connor, J., concurring);
Fernandes, 199 F.3d at 580. Such evidence, if accepted by the
factfinder, shifts the burden of persuasion to the employer, who
then must establish that he would have reached the same decision
regarding the plaintiff even if he had not taken the proscribed
factor into account. See Price Waterhouse, 490 U.S. at 242;
Fernandes, 199 F.3d at 580. Although the plaintiff's initial
burden under this "mixed-motive" approach is heavier than the de
minimis showing required to establish a prima facie case under
the pretext approach, see Raskin v. Wyatt Co., 125 F.3d 55, 60
(2d Cir. 1997), most plaintiffs perceive the Price Waterhouse
framework and its concomitant burden-shifting as conferring a
pronounced advantage. In the average case, the employee thirsts
for access to it, while the employer regards it as anathema.
See Thomas v. Denny's, Inc., 111 F.3d 1506, 1512 (10th Cir.
1997).
III. ANALYSIS
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We now return to the case at hand, focusing on the
appellants' principal assignment of error.2 We split our
analysis into two segments. First, we evaluate the appellants'
claim — strenuously challenged by CCC — that they introduced
direct evidence sufficient to warrant a mixed-motive jury
instruction. Because we resolve that question favorably to the
appellants, we then consider the appellants' follow-on claim
that the judge failed to give a suitable mixed-motive
instruction.
A. The Character of the Evidence Presented.
The appellants assert that the Becker testimony
qualifies as direct evidence, and that the lower court therefore
was obliged to give a mixed-motive jury instruction. CCC
disputes this assertion. The question of whether particular
evidence warrants a mixed-motive instruction is a question of
law, subject to de novo review. See Medlock v. Ortho Biotech,
Inc., 164 F.3d 545, 552 (10th Cir.), cert. denied, 120 S. Ct. 48
(1999); see also United States v. Flores, 968 F.2d 1366, 1367-68
(1st Cir. 1992).
2
To the extent that the appellants advance other arguments,
those arguments are insubstantial and we reject them out of
hand.
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As we recently had occasion to observe, the courts of
appeals are in some disarray as to what constitutes direct
evidence sufficient to provoke a mixed-motive instruction. See
Fernandes, 199 F.3d at 582 (collecting cases). We need not draw
overly fine distinctions today. For present purposes, it
suffices to say that evidence is "direct" (and thus justifies a
mixed-motive jury instruction) when it consists of statements by
a decisionmaker that directly reflect the alleged animus and
bear squarely on the contested employment decision.3 See, e.g.,
Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.
1999) (en banc), cert. denied, 120 S. Ct. 1243 (2000); Lambert
v. Ackerly, 180 F.3d 997, 1008-09 (9th Cir.) (en banc), cert.
denied, 120 S. Ct. 936 (1999); Thomas v. NFL Players Ass'n, 131
F.3d 198, 204 (D.C. Cir. 1997). Domenech's admission — that age
was one of three criteria used, at least in some cases, to
determine which employees would be retained and which would not
— is of this genre. It therefore constitutes direct evidence
warranting a mixed-motive instruction.
3We think it prudent to add a caveat. The phrase "direct
evidence," by any definition, refers to evidence which, if
believed by the factfinder, would warrant a burden shift. In a
case tried to a jury, the phrase does not require that the
plaintiff produce evidence that the court finds persuasive. In
other words, credibility determinations in respect to direct
evidence are for a properly instructed jury, not for the judge.
See Thomas, 111 F.3d at 1512; Ostrowski v. Atlantic Mut. Ins.
Cos., 968 F.2d 171, 184 (2d Cir. 1992).
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Although CCC rails against this conclusion, its attacks
lack force. Domenech's statement was made by a decisionmaker,
pertained to the decisional process, bore squarely on the
employment decisions at issue (or, at least, on some of them),
and straightforwardly conveyed age animus. Given these
attributes, the statement cannot be dismissed as mere background
noise or as a stray remark. See Fernandes, 199 F.3d at 583.
In a burst of optimistic surmise, CCC denies that
Domenech's invocation of age as a criterion directly reflects
age animus. In its view, he may have been referring, say, to a
plan to give older employees special (favorable) treatment. We
reject such speculation. Comments which, fairly read,
demonstrate that a decisionmaker made, or intended to make,
employment decisions based on forbidden criteria constitute
direct evidence of discrimination. See Sheehan v. Donlen Corp.,
173 F.3d 1039, 1044 (7th Cir. 1999) (observing that the term
"direct evidence" covers more than virtual admissions of
illegality). The mere fact that a fertile mind can conjure up
some innocent explanation for such a comment does not undermine
its standing as direct evidence. See id. To hold otherwise
would be to narrow the definition of direct evidence so
drastically as to render the Price Waterhouse framework
inaccessible to all but the bluntest of admissions. We prefer
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a more measured approach. Cf. Fernandes, 199 F.3d at 583
(holding "that a statement that plausibly can be interpreted two
different ways — one discriminatory and the other benign — does
not directly reflect illegal animus and, thus, does not
constitute direct evidence") (emphasis supplied).
Gauged against this benchmark, CCC's challenge falls
short. In context, there is nothing inscrutable about the
statement attributed to Domenech.4 Its meaning is plain. Thus,
we give no credence to CCC's strained attempt to create
ambiguity where none exists.
Taking a somewhat different tack, CCC asseverates that
the evidence does not bear squarely on the contested employment
decisions because Domenech's remark, as reported, merely posited
that age was used as a criterion "in some cases" without
specifically mentioning the appellants. This argument assumes
that a statement cannot bear squarely on an employment decision
unless it specifically refers to that decision. Both case law,
see, e.g., Thomas, 131 F.3d at 204 (stating that "evidence may
'bear directly' on a decision without referring to it
specifically"), and common sense refute that assumption.
4
Becker, when queried about his response to Domenech's
articulation of age as an employment criterion, testified that
he "defended the older people" and pointed out to Domenech that
"us older guys sometimes work better than the younger people."
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Indeed, a contrary rule would mean that the greater never could
be construed to include the lesser.
This case illustrates the wisdom of not requiring a
specific reference. Becker testified that he asked Domenech
about the criteria that were to be used to determine who would
be transferred to Vega Baja and who would be cut loose.
Domenech listed "age" among the pertinent criteria, signifying
that this protected characteristic would be used as a criterion
in some of those transfer decisions. The appellants were within
the relatively small pool of employees who were being considered
for transfer and were older than several of those who retained
their positions. Under the circumstances, it would blink
reality to pretend that this evidence did not bear squarely on
the appellants' situations.
CCC's remaining assaults on the status of this evidence
all relate, in one way or another, to Becker's credibility (or
lack thereof).5 These animadversions confuse the predicate for
obtaining a mixed-motive jury instruction — the existence of
direct evidence — with the predicate for shifting the burden of
5
For example, CCC notes that Domenech denied making the
"age" remark and suggests that his testimony was more credible
than Becker's (especially since Becker never mentioned the
matter until after he himself had been fired). CCC also notes
that Becker was hardly a neutral party; at the time of trial, he
was suing Caribe for wrongful discharge and age discrimination.
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persuasion under a mixed-motive analysis — proof establishing
that age played a motivating part in the challenged employment
decision. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162
(2d Cir. 1997); Thomas, 111 F.3d at 1512; Ostrowski, 968 F.2d at
182, 184. Whether or not Becker's testimony was credible — a
matter on which we take no view — his recounting of Domenech's
admission nonetheless constituted direct evidence.
B. The Jury Instructions.
Because the appellants introduced direct evidence of
age discrimination, the district court was obliged, upon the
appellants' seasonable request, to give the jury a Price
Waterhouse instruction. The lingering question, then, is
whether the court satisfied that obligation. The appellants
contend that the court gave them short shrift. We think not.
We briefly rehearse the controlling legal principles.
A party has a right to an instruction on her theory of the case,
provided that her theory is both valid in law and supported by
evidence in the record. See United States v. DeStefano, 59 F.3d
1, 2 (1st Cir. 1995); Rogers v. ACF Indus., Inc., 774 F.2d 814,
818 (7th Cir. 1985). But that right does not imply a corollary
right to insist that the trial judge use particular verbiage.
See United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992).
"Jury instructions are intended to furnish a set of directions
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composing, in the aggregate, the proper legal standards to be
applied by lay jurors in determining the issues that they must
resolve in a particular case. Provided that the charge
satisfies this need, the court's choice of language is largely
a matter of discretion." DeStefano, 59 F.3d at 2 (citation
omitted).
In this instance, the lower court deemed Becker's
testimony to be direct evidence and attempted to instruct the
jurors as to the effect of such evidence. 6 The appellants
6The court stated in material part:
In order for the plaintiffs to prove discrimination .
. . through direct evidence, each plaintiff must prove
by a preponderance of the evidence . . . the following
three elements: One, that he or she was 40 years or
older; and [two], he or she was qualified but was not
transferred to or offered a position at the Vega Baja
plant; and three, his or her age was a determinative
factor in defendant's decision not to offer the
plaintiffs a position in Vega Baja.
. . . .
If you find by a preponderance of the evidence
that the plaintiffs have established [these three
elements], then the plaintiffs are entitled to recover
. . . .
If, however, the plaintiffs fail to prove any of
these elements by a preponderance of the evidence, you
must decide that the plaintiffs have not proven age
discrimination.
Also, if you decide that the plaintiffs have
failed to prove that age was a determinative factor in
the defendant's decision, and would have suffered the
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criticize the adequacy of this instruction. We agree that it
was not a textbook model and do not recommend its emulation in
other cases. Yet the appellants, in their contemporaneous
objection, identified no specific flaw in the district court's
language. We quote the colloquy that ensued, out of the jury's
earshot, when counsel interposed his objection to the mixed-
motive instruction:
Appellants'
Counsel: The plaintiffs specifically request from the
Court to give a charge to the jury under Price
Waterhouse.
Court: But what is the specific charge that you want
to give the jury?
Appellants'
Counsel: [T]he specific charge that we are requesting is
the following: "If you find that the
plaintiffs have presented sufficient direct
evidence to establish that age was a motivating
factor in the decision to deny to them the
opportunity to transfer to work at the Vega
Baja plant, then the burden of persuasion
shifts to the employer, who must prove that it
same consequences regardless of their ages, then you
must find that the plaintiffs have not proven age
discrimination.
. . . .
In other words, if plaintiffs have offered
evidence from which you conclude that defendant
discriminated against them because of their ages,
plaintiffs are entitled to recover, unless the
defendant proves that it would have taken the same
action regardless of plaintiff's ages. . . .
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would have made the same decision even if age
had not been taken into account."
. . . .
Court: Let me rule on that first. The objection is
denied. I charged the jury as follows: "In
other words, if plaintiffs have offered
evidence from which you can conclude that
defendant discriminated against them because of
their ages, plaintiffs are entitled to recover,
unless the defendant proves that it would have
taken the same action regardless of plaintiffs'
ages." That's covered in my instruction.
That's denied. Next one.
Appellants'
Counsel: To that we want to add that the case law is
specific that there is a shifting in the burden
of proof —
Court: Okay, you made your objection. You save it.
You save it for appeal.
Appellants'
Counsel: Yes, your Honor, but in order for the record to
be clear, that we are requesting that the jury
be charged that the burden of proof has shifted
once the plaintiff has presented direct
evidence of discrimination, and very
respectfully submit that the testimony in this
case is sufficient to qualify it as direct
evidence.
Court: Very well. I charged the jury that it is
direct evidence. I said so.
These comments voiced displeasure, but they did not delineate
particular language in the charge that the appellants deemed
confusing, internally inconsistent, or otherwise inconcinnous.
Under the circumstances, the appellants cannot now be heard to
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complain about an overall lack of clarity or the potential for
confusion. See Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir.
1999); United States v. Lara, 181 F.3d 183, 196 (1st Cir. 1999);
see also Fed. R. Civ. P. 51 (requiring parties objecting to
instructions to "stat[e] distinctly the matter objected to and
the grounds of that objection").
This is not the end of the matter, for the appellants
have a more promising argument. They did, in the course of
their objection, request a further instruction. They arguably
were entitled to that instruction as long as it constituted a
correct statement of the law, integral to an important issue in
the case, that had not been substantially covered in the charge
as rendered. See Faigin, 184 F.3d at 87; McGill, 953 F.2d at
13.
We conclude, however, that in this instance the
district court's failure to accommodate the appellants' request
for a supplementary instruction did not constitute reversible
error. It is hornbook law that a trial court does not commit
error when it instructs generally about a legal principle and
then declines a party's request for a further instruction that
is misleading, legally incorrect, or incomplete. See Lara, 181
F.3d at 196; DeStefano, 59 F.3d at 4; United States v. David,
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940 F.2d 722, 738 (1st Cir. 1991).7 This is such a case. The
court had attempted to give a Price Waterhouse instruction. See
supra note 6. In objecting to it, the appellants had asserted
that more was needed. To fill this perceived void, they urged
the court to instruct that the burden of persuasion shifted as
long as the appellants presented "sufficient direct evidence to
establish that age was a motivating factor." This was wrong as
a matter of law. 8 In a mixed-motive case, the burden of
persuasion does not shift merely because the plaintiff
7
Wilson v. Maritime Overseas Corp., 150 F.3d 1 (1st Cir.
1998), is not to the contrary. There, we stated that if the
request for a particular instruction "directs the court's
attention to a point upon which an instruction to the jury would
be helpful, the court's error in failing to charge may not be
excused by technical defects in the request." Id. at 10. But
that rule does not apply to substantial defects and, in all
events, we made the statement in a situation where the district
court had completely failed to instruct the jury on an area of
law central to the case. See id. at 8. In the matter at hand,
the instructions given did address the mixed-motive approach,
and thus were subject to no such deficiency.
8
To be sure, the phrase "sufficient direct evidence to
establish" may be susceptible to the interpretation that the
burden would shift if the appellants presented direct evidence
that established to the jury's satisfaction that age actually
was a motivating factor in the challenged employment decisions.
That would have been a correct statement of the law. But the
phrase's more natural reading, especially in light of the
colloquy that followed, is a legally erroneous one, to the
effect that the burden would shift if the appellants adduced
direct evidence sufficient to permit a finding that age was a
motivating factor. In all events, a jury instruction's
proponent has a duty to clarify ambiguities, see, e.g., David,
940 F.2d at 738, and the appellants did not do so here.
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introduces sufficient direct evidence to permit a finding that
a discriminatory motive was at work; the burden shifts only if
the direct evidence in fact persuades the jury that a
discriminatory motive was at work. Put another way, the burden
of persuasion does not shift unless and until the jury accepts
the "direct evidence" adduced by the plaintiff and draws the
inference that the employer used an impermissible criterion in
reaching the disputed employment decision. See Kirsch, 148 F.3d
at 162; Ostrowski, 968 F.2d at 184. The appellants' proposed
instruction blurred this distinction.
The colloquy that followed the objection shows
convincingly that the appellants were conflating the standard
governing the giving of a mixed-motive instruction with the
standard governing the ensuing burden shift. For example, their
counsel stated: "We are requesting that the jury be charged
that the burden of proof has shifted once the plaintiff has
presented direct evidence of discrimination." He then opined
that "the defendant has to carry a burden once there is a
presentation of sufficient direct evidence to sustain a Price
Waterhouse charge." Since the appellants garbled the two
propositions, they cannot fault the district court either for
failing to separate wheat from chaff or for refusing to give the
requested instruction. See David, 940 F.2d at 738.
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IV. CONCLUSION
We need go no further.9 The short of it is that the
district court correctly apprehended the character of the
evidence presented and charged the jury accordingly. The
court's mixed-motive instruction was not letter perfect, but it
sufficed to place the issue before the jury. In the absence of
either a particularized objection to the instruction actually
given or an appropriate request for a more enlightening
instruction, the jury verdict must stand.
Affirmed.
9
The court below did not require the appellants to make an
election before submitting the case to the jury, and instead
appears to have instructed on both the pretext approach and the
mixed-motive approach. The appellants do not assign error to
the submission of these alternate theories to the jury, and we
express no opinion on the practice.
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