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5 PJI 1.2 | TITLE VII | DISPARATE TREATMENT — PRETEXT

In this case [plaintiff] is alleging that [defendant] [describe alleged disparate treatment] [plaintiff]. In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] [protected status] was a determinative factor in [defendant’s] decision to [describe action] [plaintiff].

To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:

First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment]²⁰; and

Second: [Plaintiff’s] [protected status] was a determinative factor in [defendant's] decision.

Although [plaintiff] must prove that [defendant] acted with the intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal civil rights. Moreover, [plaintiff] is not required to produce direct evidence of intent, such as statements admitting discrimination. Intentional discrimination may be inferred from the existence of other facts.

You should weigh all the evidence received in the case in deciding whether [defendant] intentionally discriminated against [plaintiff]. [For example, you have been shown statistics in this case. Statistics are one form of evidence that you may consider when deciding whether a defendant intentionally discriminated against a plaintiff. You should evaluate statistical evidence along with all the other evidence.]

[Defendant] has given a nondiscriminatory reason for its [describe defendant’s action]. If you believe [defendant’s] stated reason and if you find that the [adverse employment action] would have occurred because of defendant’s stated reason regardless of [plaintiff’s] [protected status], then you must find for [defendant]. If you disbelieve [defendant’s] stated reason for its conduct, then you may, but need not, find that [plaintiff] has proved intentional discrimination. In determining whether [defendant’s] stated reason for its actions was a pretext, or excuse, for discrimination, you may not question [defendant’s] business judgment. You cannot find intentional discrimination simply because you disagree with the business judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant's] wisdom. However, you may consider whether [plaintiff] has proven that [defendant’s] reason is merely a cover-up for discrimination.

Ultimately, you must decide whether [plaintiff] has proven that [his/her] [protected status] was a determinative factor in [defendant’s employment decision.] “Determinative factor” means that if not for [plaintiff’s] [protected status], the [adverse employment action] would not have occurred.
COMMENT On the distinction between mixed-motive and pretext cases (and the continuing viability of that distinction), see the Commentary to Instruction 5.1.1.

The McDonnell Douglas Burden-Shifting Test

The Instruction does not charge the jury on the complex burden-shifting formula established for pretext cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).²¹ Under the McDonnell Douglas formula a plaintiff who proves a prima facie case of discriminatory treatment raises a presumption of intentional discrimination. The defendant then has the burden of production, not persuasion, to rebut the presumption of discrimination by articulating a nondiscriminatory reason for its actions. If the defendant does articulate a nondiscriminatory reason, the plaintiff must prove intentional discrimination by demonstrating that the defendant’s proffered reason was a pretext, hiding the real discriminatory motive.

In Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998), the Third Circuit declared that “the jurors must be instructed that they are entitled to infer, but need not, that the plaintiff's ultimate burden of demonstrating intentional discrimination by a preponderance of the evidence can be met if they find that the facts needed to make up the prima facie case have been established and they disbelieve the employer's explanation for its decision.” The court also stated, however, that “[t]his does not mean that the instruction should include the technical aspects of the McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a jury.” The court concluded as follows:
Without a charge on pretext, the course of the jury's deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferences of discrimination may be drawn from the evidence establishing plaintiff's prima facie case and the pretextual nature of the employer's proffered reasons for its actions. It does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing that inference. In Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 347 n.1 (3d Cir. 1999), the Third Circuit gave extensive guidance on the place of the McDonnell Douglas test in jury instructions:
The short of it is that judges should remember that their audience is composed of jurors and not law students. Instructions that explain the subtleties of the McDonnell Douglas framework are generally inappropriate when jurors are being asked to determine whether intentional discrimination has occurred. To be sure, a jury instruction that contains elements of the McDonnell Douglas framework may sometimes be required. For example, it has been suggested that "in the rare case when the employer has not articulated a legitimate nondiscriminatory reason, the jury must decide any disputed elements of the prima facie case and is instructed to render a verdict for the plaintiff if those elements are proved." Ryther [v. KARE 11], 108 F.3d at 849 n.14 (Loken, J., for majority of en banc court). But though elements of the framework may comprise part of the instruction, judges should present them in a manner that is free of legalistic jargon. In most cases, of course, determinations concerning a prima facie case will remain the exclusive domain of the trial judge. On proof of intentional discrimination, see Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066-1067 (3d Cir. 1996) (“[T]he elements of the prima facie case and disbelief of the defendant's proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to draw an inference leading it to conclude that there was intentional discrimination.”).

In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993), the Supreme Court stated that a plaintiff in a Title VII case always bears the burden of proving whether the defendant intentionally discriminated against the plaintiff. The instruction follows the ruling in Hicks.

Determinative Factor

The reference in the instruction to a “determinative factor” is taken from Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000) (holding that the appropriate term in pretext cases is “determinative factor”, while the appropriate term in mixed-motive cases is “motivating factor”). See also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 n.8 (3d Cir. 2007) (in a pretext case, the plaintiff must show that the prohibited intent was a “determinative factor” for the job action) (emphasis in original); Atkinson v. Lafayette College, 460 F.3d 447, 455 (3d Cir. 2006) (“Faced with legitimate, non-discriminatory reasons for Lafayette College's actions, the burden of proof rested with Atkinson to demonstrate that the reasons proffered were pretextual and that gender was a determinative factor in the decisions.”); Hanes v. Columbia Gas of Pennsylvania Nisource Co., 2008 WL 3853342 at *4, n.12 (M.D. Pa. 2008) ( Third Circuit “adheres to a distinction between ‘pretext’ cases, in which the employee asserts that the employer's justification for an adverse action is false, and ‘mixed-motives’ cases, in which the employee asserts that both legitimate and illegitimate motivations played a role in the action”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter).

The plaintiff need not prove that the plaintiff’s protected status was the only factor in the challenged employment decision, but the plaintiff must prove that the protected status was a determinative factor. For example, if the employer fires women who steal office supplies but not men who steal office supplies, then the women’s gender is a determinative factor in the firing even though there is another factor (stealing office supplies) which if applied uniformly might have justified the challenged employment decision. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (“Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.”).²²

Pretext

The Third Circuit described standards for proof of pretext in Doe v. C.A.R.S. Protection Plus, Inc. 527 F.3d 358, 370 (3d Cir. 2008):
In order to show pretext, a plaintiff must submit evidence which (1) casts doubt upon the legitimate reason proffered by the employer such that a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the employee's termination. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir. 1990). Put another way, to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a fact-finder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, that the proffered reason is a pretext). See also Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (“To make a showing of pretext, ‘the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action’” (quoting Fuentes, 32 F.3d at 764).).²³

The reference in these opinions to “a motivating or determinative cause” seems to indicate that the two terms are interchangeable. But they are not, because a factor might “motivate” conduct and yet not be the “determinative” cause of the conduct — proof that the factor was determinative is thus a more difficult burden. The very distinction between pretext and mixed-motive cases is that in the former the plaintiff must show that discrimination is the “determinative” factor for the job action, while in the latter the plaintiff need only prove that discrimination is a “motivating” (i.e., one among others) factor. See, e.g., Stackhouse v. Pennsylvania State Police, 2006 WL 680871 at *4 (M.D. Pa. 2006) (“Whether a case is classified as one of pretext or mixed-motive has important consequences on the burden that a plaintiff has at trial, and hence on the instructions given to the jury”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter) (citing Watson v. SEPTA, 207 F.3d 207, 214-15 & n.5 (3d Cir. 2000)). Accordingly, the instruction on pretext follows the standards set forth in Doe, Fuentes, and Burton, with the exception that it uses only the term “determinative” and not the term “motivating.”

Business Judgment

On the “business judgment” portion of the instruction, see Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir.1991), where the court stated that “[b]arring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain positions.” The Billet court noted that “[a] plaintiff has the burden of casting doubt on an employer's articulated reasons for an employment decision. Without some evidence to cast this doubt, this Court will not interfere in an otherwise valid management decision.” The Billet court cited favorably the First Circuit’s decision in Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir.1979), where the court stated that “[w]hile an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination.”

Adverse Employment Action – General Considerations

Instruction 5.1.2 offers a list of alternatives by which the plaintiff could meet the “adverse employment action” element – failure to hire; failure to renew an employment agreement; failure to promote; demotion; termination; constructive discharge; or “otherwise discriminat[ing] against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment.” In a case where the plaintiff relies upon the last of these options (“otherwise discriminat[ing]”), the court will need to determine whether categorizing the event(s) in question as an adverse employment action presents a question of law for the court or a question for the jury. As noted below, some types of actions are categorically outside the ambit of actionable conduct (e.g., paid suspension pending investigation of alleged wrongdoing) and a case involving such an action (and no other adverse conduct) would not reach a jury (for lack of an adverse action). In other instances, the type of employment action might not be categorically sufficient or categorically insufficient, but rather might count as an adverse employment action only if it had enough of an effect (i.e., if it was sufficiently serious and tangible); as to such actions, the Committee has not attempted to determine whether it is for the judge or for the jury to decide whether the action was sufficiently serious and tangible to count as an adverse employment action. See Comment 5.1.1 for further discussion of this issue.

Failure to Rehire as an Adverse Employment Action

In Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008), the court held that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII.” See also Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (holding that plaintiff adequately pleaded a disparate treatment claim where her “allegations raise[d] a reasonable expectation that discovery w[ould] reveal evidence that [her] protected status as a woman played either a motivating or determinative factor in [defendant]’s decision not to rehire her”). The Instruction accordingly contains a bracketed alternative for failure to renew an employment arrangement as an adverse employment action.

Suspension with Pay Generally Not an Adverse Employment Action

“A paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015). Thus, “a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” Id. (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). Compare Jones, 796 F.3d at 325 (“[W]e need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context.”).

Failure of Employee to Satisfy an Objective Externally-Imposed Standard Necessary for Employment

In Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), the court declared that in both pretext and mixed-motive cases, a plaintiff “has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.” The court explained the minimal qualification requirement as a narrow one best expressed as “circumstances that require a license or a similar prerequisite in order to perform the job.”

It would be extremely rare for the court to have to instruct the jury on whether the plaintiff has met an objective job requirement within the meaning of Makky. The examples given by the court are in the nature of licenses or certifications by an external body — in the vast majority of cases, the parties will not dispute whether the license or certification was issued. In the rare case in which the existence of an objective externally-imposed qualification raises a question of fact, the court will need to add a third element to the basic instruction. For example:

Third: [Plaintiff] was [properly licensed] [met the requirements of an independent body that set minimum requirements for [plaintiff’s] job].


(Last Updated July 2019)

Footnotes

²⁰ Please see the Comment for discussion of the last item in this list of alternatives.
²¹ Instruction 5.1.2’s statement of the elements of a pretext claim would require adjustment in a case involving a claim of pregnancy discrimination. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353-55 (2015) (explaining how the McDonnell Douglas proof framework applies to a claim “that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause”).
²² In Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323 (3d Cir. 2015), the court rejected the plaintiff’s contention “that a reasonable jury could draw an inference of discrimination because SEPTA declined to punish male employees who engaged in the same alleged misconduct as she.” Jones, 796 F.3d at 327-28. The court of appeals reasoned that even if the plaintiff’s supervisor had allowed a male employee “to underreport his vacation time to compensate him for unpaid overtime work,” and “even if this practice was against SEPTA rules, it was materially different from [the plaintiff’s] misconduct because [the male employee] did not fraudulently claim pay for work he never performed.” Id. at 328.
²³ In In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018), the Court of Appeals upheld the lower courts’ rejection of the claimant’s Title VII race-discrimination wrongful-termination claim because the employer “provided a legitimate, non-discriminatory reason for his discharge” and because this stated “rationale was not pretextual because [the claimant] and [his allegedly-harassing co-worker] were both fired for engaging in the same conduct [and the claimant] gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct.” Tribune Media, 902 F.3d at 404.