Brown v. Packaging Corp. of America, 01-5864.

• Decision Date: 29 July 2003
• Docket Number: No. 01-5864.,01-5864.
• Citation: 338 F.3d 586
• Parties: Bobby BROWN, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 586

338 F.3d 586

Bobby BROWN, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee.

No. 01-5864.

United States Court of Appeals, Sixth Circuit.

Argued January 28, 2003.

Decided and Filed July 29, 2003. Pursuant to Sixth Circuit Rule 206

ARGUED: Victor I. Fleitas, (argued and briefed), Jim D. Waide (briefed), Waide & Associates, Tupelo, Mississippi, for Appellant.

Marcus M. Crider, (argued and briefed), WALLER, LANSDEN, DORTCH & DAVIS, Mark E Stamelos (briefed), King & Ballow Nashville, Tennessee, for Appellee.

ON BRIEF: Victor I. Fleitas, Tupelo, Mississippi, Jim D. Waide, WAIDE & ASSOCIATES, Tupelo, Mississippi, for Appellant.

Before NELSON and CLAY, Circuit Judges; HAYNES, District Judge.^*

DAVID A. NELSON, J., announced the judgment of the court and delivered an opinion, in which CLAY, J. and HAYNES, D. J., concurred except as to Part II B. CLAY, J. (pp. 595-599), delivered a separate opinion, in which HAYNES, D. J., concurred, which constitutes the opinion of the court on the issue discussed in Part II B.

OPINION

DAVID A. NELSON, Circuit Judge.

This is an appeal from a judgment entered on a verdict for the employer in an age discrimination case. The main issue we are asked to decide is whether the district court committed reversible error by including instructions in its charge to the jury that replicated the prima-facie-case and "burden-shifting" guidelines set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Unlike my colleagues on the panel, I am inclined to think that trial courts should be discouraged from parroting the legal technicalities of McDonnell Douglas and Burdine in charging juries. Whether or not the inclusion of McDonnell Douglas verbiage in jury instructions may create an unnecessary risk that the jury will be confused, however, none of the members of the panel is persuaded that any potential for confusion in the case at bar was sufficiently great to necessitate a reversal here. Accordingly, and because we are not persuaded by the plaintiff's remaining assignments of error, we shall affirm the challenged judgment.

I

The plaintiff in this case, Bobby Brown, went to work for the defendant, Packaging Corporation of America, in 1962, when he was about 20 years old. In 1996 Mr. Brown was promoted to a crew leader's job. In that capacity he was responsible for the operation of one of two large paper machines at a plant in Counce, Tennessee. The promotion to crew leader was based entirely on seniority and was mandated by a collective bargaining agreement.

In 1999, when Mr. Brown was 57 years of age, plant manager Michael Synyard offered him a promotion to the position of temporary foreman. Brown accepted. The new job, unlike the old one, was not covered by the collective bargaining agreement.

Although Synyard did not need anyone's approval to promote Mr. Brown, he mentioned his decision to Mark Kowlzan, a vice president of the company. Kowlzan voiced serious reservations about Brown, asserting that he "lacked leadership" and pointing out that he had been convicted of arson for burning down his house. (The company had fired Brown at the time of the conviction, which occurred in 1989, but subsequently rehired him under a threat of litigation.) Kowlzan further told Synyard about an incident in which Brown had shown photographs of his wife in the nude to fellow employees at the plant — behavior that was not only bizarre, but that violated the company's sexual harassment policy. Synyard had not known about either the arson conviction or the photograph incident, and he testified at trial that the information "dismayed" him.

Synyard promptly decided not to promote Brown after all, and he instructed area supervisor David Ellison to have Brown report for work on the next shift as a crew leader and not as a foreman. When Brown asked what had happened to his promotion, Ellison allegedly told him that Mr. Kowlzan "wanted younger people and engineers to fill the job." Ellison testified that he never said any such thing.

Synyard met with Brown a day or two after the withdrawal of the promotion. This time Brown was told he was being kept on as crew leader because the man who was in line to succeed him in that job was far weaker than Brown as far as experience went. Synyard did not mention the arson or the nude photographs, testifying later that "I thought it was very humiliating and embarrassing, and I just didn't see the need of further embarrassing Bobby...."

Synyard ultimately filled the temporary foreman's slot by promoting an employee named Jamie Mims. Mr. Mims was 40 years old.

Aggrieved by his failure to get the promotion he had been promised, Mr. Brown filed an age discrimination charge with the Equal Employment Opportunity Commission. The company submitted a response denying that Brown had been discriminated against because of age and asserting that Mims "displayed more initiative and exhibited better leadership characteristics." The response did not mention Brown's conviction for arson or the nude photograph incident.

Unable to conclude that a violation of the Age Discrimination Act had been established, the EEOC closed its file and notified Mr. Brown of his right to sue the employer within 90 days of his receipt of the notice. Brown exercised this right, filing an action in the United States District Court for the Western District of Tennessee and demanding a jury trial.

After denying a defense motion for summary judgment, the district court denied a motion in limine wherein Brown sought to exclude evidence of his arson conviction. The court granted a motion to exclude evidence that David Ellison, the area supervisor who first advised Brown that he was not being promoted, had been convicted of a misdemeanor. (In August of 1999 — after he had become an area supervisor — Ellison pleaded no contest to a misdemeanor charge of criminal trespass.)

When Brown's case went to trial, the district court took advantage of a recess to review its proposed jury instructions with the lawyers. The proposed charge included five pages of text adapted from the Supreme Court's opinion in McDonnell Douglas, 411 U.S. at 802-805, 93 S.Ct. 1817. The language covered the four McDonnell Douglas elements of a prima facie case, the defendant's burden of articulating a nondiscriminatory reason for the challenged employment action, the plaintiff's obligation to prove that the proffered reason was a pretext, and methods by which pretext may be shown. The court also proposed to add the following caution:

"Remember, the ultimate burden remains at all times on plaintiff to prove by a preponderance of the evidence that he was discriminated against because of age; therefore, it is not enough for plaintiff to simply prove or claim that the stated reasons for PCA's actions with regard to plaintiff were not believable or are not the true reasons for the actions. The reason for this is because plaintiff always must prove by a preponderance of the evidence that he was discriminated against because of his age. You must determine whether plaintiff has proved that the reasons given by PCA were a pretext for unlawful age discrimination, and you may consider all the evidence in making this determination."

Counsel for Mr. Brown objected that the proposed instructions were improper for two reasons. First, he maintained, Brown was offering not only indirect evidence of wrongful discrimination — the type of evidence dealt with in McDonnell Douglas — but direct evidence as well. Second, counsel argued, even where the evidence is purely indirect, it is confusing for a jury to be instructed on the elements of a prima facie case and (as counsel put it) "all that burden shifting business."

The trial court was unmoved by either argument, and the instruction was incorporated without change in the charge given the jury at the end of the case. The jury found in favor of the defendant, as we have said, and there has been a timely appeal from the judgment entered on the verdict.

II

A

We turn first to Mr. Brown's "direct evidence" argument. The gist of the argument is that the McDonnell Douglas paradigm relates only to cases where there is no direct evidence of wrongful discrimination; a plaintiff who has presented "some direct evidence of age discrimination," this court has said, "... need not make out a prima facie case under the McDonnell Douglas framework." LaPointe v. United Autoworkers Local 600, 103 F.3d 485, 488 n. 3 (6th Cir.1996). Mr. Brown submits that he presented direct evidence of discrimination when he testified that area manager Ellison told him he was not getting the promised promotion because vice president Kowlzan "wanted younger people...."

Although Mr. Brown characterizes his testimony as direct evidence of discriminatory intent, our precedents suggest that it may be more accurate to characterize it as circumstantial evidence. See Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir.2002) (evidence that one of the plaintiff's supervisors held the opinion that race was a factor in the defendant's decision not to promote the plaintiff was not direct evidence of discrimination where the supervisor had no involvement in the decision and did not reveal the basis for his opinion). Ellison had no involvement in the decision not to promote Brown, and Ellison did not reveal the basis for his alleged insight into Kowlzan's thought processes.

We agree that the testimony in question does not fall within any of the four categories of proof described by the McDonnell Douglas Court in discussing the establishment of a prima facie case of discrimination.¹ On the other hand, the fact that the testimony fell outside the McDonnell Douglas paradigm does not detract from the fact that Brown also presented evidence that fit the paradigm exactly. In...