TBD | 2 PJI 2.1 | Pattern Jury Instructions | First Circuit
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2 PJI 2.1 | First Circuit (US)
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[Plaintiff] accuses [defendant]2 of sexual harassment3 in violation of federal law. Specifically, [she/he] claims that [specify the quid pro quo] and that [defendant] took adverse tangible employment action against [her/him] for refusing.4 To succeed on this claim, [plaintiff] must prove by a preponderance of the evidence that:

First, [she/he] was subjected to unwelcome sexual advances that were sexually motivated because of [her/his] sex5; and

Second, [her/his] rejection of the advances affected a tangible aspect of [her/his] employment — in other words, that were it not for [her/his] rejection of the advances,6 [she/he] would not have been [specify adverse action].

An advance is unwelcome if it is uninvited, and offensive or unwanted.7

It is not your role to second guess [defendant’s] business judgment. Standing alone, honest errors in business judgment do not establish discrimination. Even if you were to decide that the [specify adverse action] was neither fair nor wise nor professionally handled, that would not be enough.8 In order to succeed on the sexual harassment claim, [plaintiff] must persuade you, by a preponderance of the evidence, that were it not for [her/his] rejection of the advances,9 [she/he] would not have been [specify adverse action].

[Plaintiff] need not show that [her/his] rejection of the advances was the only or predominant factor10 that motivated11 [defendant]. In fact, you may decide that other factors were involved as well in [defendant]’s decisionmaking process. In that event, in order for you to find for [plaintiff], you must find that [she/he] has proven that, although there were other factors, [she/he] would not have been [specify adverse action] without [her/his] rejection of the advances.12

13{[Plaintiff] is not required to produce direct evidence of unlawful motive. You may infer knowledge and/or motive as a matter of reason and common sense from the existence of other facts — for example, explanations that were given that you find were really pretextual. “Pretextual” means false or, though true, not the real reason for the action taken.}

An adverse employment action by a supervisor is an action of the employer.14


1 Although the Supreme Court has warned against over-emphasizing the quid pro quo / hostile environment distinction, the formulation is still useful in determining the type of charge to be given:
We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998) (Title VII).

2 In Title VII cases, “the terms ‘employer’ and ‘employee’ are to be defined with reference to common law agency principles.” Delia v. Verizon Communications, Inc., __ F.3d __, 2011 WL 3688995, at *3 (1st Cir. Aug. 24, 2011) (internal quotes omitted). “[T]he principal guidepost” is “‘the common-law element of control [by the putative employer over the putative employee].’” Id. An instruction on this issue may be given when there is a dispute about whether the plaintiff is the defendant’s employee. see id. at *2-4; Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009).
3 This instruction should be used in cases where the plaintiff suffered an adverse tangible employment action because he or she refused unwanted sexual advances. If the plaintiff did not suffer an adverse tangible employment action, then Instruction 2.2 or 2.3 should be used.
4 In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (Title VII), the Court held that an employer is strictly liable for sexual harassment by an employee in a supervisory position if the plaintiff suffered a tangible employment action as a result of refusal to submit to sexual harassment. Id. at 761-62 (“When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation[ship].”).

The Court defined a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 761. It is not clear whether the term “tangible employment action” (as used by the Court in Ellerth) is synonymous with the term “adverse employment action,” the term commonly used in employment discrimination cases. see Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 192 n.2 (5th Cir. 2001) (Title VII) (discussing whether Ellerth’s definition of “tangible employment action” expanded the definition of “adverse employment action” used in Title VII retaliation claims). The terms serve two different purposes. The Ellerth Court used the term tangible employment action to describe an indicator of employer endorsement of and thus culpability for the actions of an employee, a surrogate for the more complicated agency analysis. Adverse employment action, on the other hand, is used to describe an injury or harm requirement the plaintiff must demonstrate. According to the First Circuit: “Case law in the Third and Eighth Circuits treats constructive discharge as a tangible employment action; cases in the Second and Sixth Circuits lean the other way. Because the conduct differs from case to case, we see no reason to adopt a blanket rule one way or the other.” Reed v. MBNA Marketing Sys., Inc., 333 F.3d 27, 33 (1st Cir. 2003) (citations and footnote omitted).

In Agusty-Reyes v. Dep’t of Educ. of P.R., 601 F.3d 45, 54 (1st Cir. 2010), the court noted three theories on which a jury could find tangible employment actions in a tenure delay case:
The grant or denial of tenure could be viewed as similar to a decision whether to promote, a well-recognized tangible employment action. A failure to grant tenure could also lead to a meaningful change in an employee’s benefits in an up-or-out situation at a time when budgetary constraints loomed. Finally, a reasonable jury could certainly find that... deliberate delay in evaluating... performance and... harshly critical assessment, which was directly linked to the tenure decision, adversely impacted... employment by delaying... receipt of tenure and the job security that would accompany it.

5 The harasser need not be of the opposite sex to the victim; same-sex harassment is also actionable. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998) (Title VII); see also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258-59 (1st Cir. 1999) (Title VII and ADA). The essential issue is whether the victim was harassed “because of” his or her sex.
6 The causation language in this instruction is drawn from the pretext model because it is the most common model for a quid pro quo case. In a case where the mixed motive model is appropriate, the causation language from Instruction 1.2 should be used.
7 This definition comes from Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990) (Title VII), but Chamberlin has no punctuation in the phrase: “uninvited and offensive or unwanted.” The addition of the comma is consistent with the definition favored in at least two other circuits. see Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986) (“In order to constitute harassment, the conduct must be ‘unwelcome’ in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (“In order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”). Whether a particular advance was unwelcome is a fact-intensive, context-specific inquiry. see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (Title VII) (“the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact”). The fact that the plaintiff did not explicitly reject the advance is not necessarily dispositive. Chamberlin, 915 F.2d at 784 (“[T]he perspective of the factfinder evaluating the welcomeness of sexual overtures... must take account of the fact that the employee may reasonably perceive that her recourse to more emphatic means of communicating the unwelcomeness of the supervisor's sexual advances, as by registering a complaint, though normally advisable, may prompt the termination of her employment, especially when the sexual overtures are made by the owner of the firm.”).

There is some uncertainty in the First Circuit about the weight the fact finder should give to the respective perspectives of the person making the advance and the person receiving it. For a discussion of this issue, see Harris v. International Paper Co., 765 F. Supp. 1509, 1513-16 (D. Me.) (Title VII) vacated in part by 765 F. Supp. 1529 (D. Me. 1991) (discussing Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir. 1990) (Title VII)); Morgan v. Massachusetts General Hospital, 901 F.2d 186 (1st Cir. 1990) (Title VII); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) (Title VII)).

8 Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999) (Title VII) (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1996)) (Title VII) (“Title VII does not grant relief to a plaintiff who has been discharged unfairly, even by the most irrational of managers, unless facts and circumstances indicate that discriminatory animus was the reason for the decision.”); see also Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 8 (1st Cir. 2000) (Title VII) (proof that decision is unfair “is not sufficient to state a claim under Title VII”); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st Cir. 1999) (Title VII) (“Title VII does not stop a company from demoting an employee for any reason — fair or unfair — so long as the decision to demote does not stem from a protected characteristic.” (citations omitted)); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) (ADEA) (“Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers’ nondiscriminatory business decisions.” (citations omitted)). Other circuits have said that subjectivity in an evaluation is not itself grounds for challenging the evaluation as discriminatory. E.g., Vaughan v. The Metrahealth Companies, Inc., 145 F.3d 197, 204 (4th Cir. 1998) abrogated in part by Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995); Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984).
9 Case law talks about the “true reason,” “determining factor,” “determinative factor” and “motivating factor,” sometimes using the definite article “the” and sometimes using the indefinite article “a.” The debate recalls causation analysis in tort law with many of the same ambiguities. What does seem clear, however, is that “but for” causation is the standard in pretext cases. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir. 1997) (ADEA) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (ADEA)); see also Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999) (Title VII) (“The ultimate question is whether the employee has been treated disparately ‘because of [the protected characteristic].’”); Price Waterhouse v. Hopkins, 490 U.S. 228, 262-63 (1989) (Title VII) (“Thus, I disagree with the plurality's dictum that the words ‘because of’ do not mean ‘but-for’ causation; manifestly they do.”); Ward v. Mass. Health Research Institute, Inc., 209 F.3d 29, 38 (1st Cir. 2000) (ADA) (describing the analysis of whether the plaintiff was fired “because of” his disability as “but/for reasoning”). We have therefore chosen to avoid the listed terms, which seem to provoke endless debate in charge conferences, and use a simple “but for” instruction (the actual words “but for” are not used because they are far less familiar to lay jurors than to lawyers and judges). We thereby avoid the debate over those terms as reflected in the following case law: Provencher v. CVS Pharmacy, 145 F.3d 5, 10 (1st Cir. 1998) (Title VII retaliation) (“a motivating factor” and “played a part” are problematic phrases; defendant is liable only if discrimination is “the determinative factor”); Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 39 (1st Cir. 1998) (Title VII) (The First Circuit has not yet decided whether “the ‘a motivating factor’ language in 42 U.S.C. § 2000e-2(m) applies to all discrimination cases” or only to mixed motive cases.); Id. at 46 (“[A] district court errs by giving a jury instruction pursuant to § 2000e-2(m) [e.g., ‘a motivating factor’ language], unless the court determines that the plaintiff has adduced evidence of discrimination sufficient to take the case outside the McDonnell Douglas paradigm....”); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 542 (1993) (Title VII) (“Congress has taken no action to indicate that we were mistaken in McDonnell Douglas and Burdine.”).
10 see Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 39 (1st Cir. 1998) (Title VII) (instruction “requiring [a verdict for the defendant] if any reason other than gender played, however minimal, a part” in the challenged employment decision places too heavy a burden on plaintiff); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) (ADEA) (“Once a ‘willful’ violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer’s motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision.” (emphasis added)).
11 Although there is dispute about the propriety of the use of the term “a motivating factor,” the First Circuit does not appear to be troubled by the word “motivated” when used by itself. See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 35 (1st Cir. 2001) (Title VII and § 1981) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (Title VII) (“termination was motivated by [protected characteristic] discrimination”)).
12 In Staub v. Proctor Hosp., ___ U.S. ___, 131 S. Ct. 1186 (2011), the Supreme Court dealt with so-called cat’s paw liability under the Uniformed Services Employment and Reemployment Rights Act ― according to the Court, “very similar to Title VII” in its use of the phrase “a motivating factor in the employer’s action.” The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” even if the supervisor who ultimately took the adverse action did not share the discriminatory animus. Id. at 1194 (emphasis in original). The principle seems applicable generally to employment discrimination cases. The Court expressed no view about liability “if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Id. at n.4.
13 In a hostile environment case, the First Circuit said that “[t]o the extent the district court said it required DeCaire to present evidence beyond disproving the government’s arguments as pretext, that was error.” DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008) (emphasis in original). The pretext language used in this bracketed paragraph is permissible and may help the jury understand the issue, but is not required in the First Circuit. Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000) (ADEA and ADA) (“While permitted, we doubt that such an explanation is compulsory, even if properly requested.”); White v. N.H. Dep’t of Corrections, 221 F.3d 254 (1st Cir. 2000) (Title VII) (finding no error in refusal to give explicit instruction on pretext).
14 In Foley v. Commonwealth Electric Co., 312 F.3d 517, 521 (1st Cir. 2002), the court stated that “this instruction optimally should have been included in the charge.”

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