Browning v. United States ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRIETTA BROWNING, 
Plaintiff-Appellant,
v.
No. 07-35557
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF TREASURY;  D.C. No.
CV-05-01471-BR
UNITED STATES INTERNAL REVENUE
SERVICE; HENRY M. PAULSON, JR.,* OPINION
Secretary of the Department of the
Treasury,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
March 3, 2009—Portland, Oregon
Filed May 22, 2009
Before: Susan P. Graber, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Fisher
*Henry M. Paulson, Jr. is substituted for his predecessor, John W.
Snow, as Secretary General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).
6079
BROWNING v. UNITED STATES 6081
COUNSEL
Beth Creighton (argued), Zan Tewksbury, Steenson, Schu-
mann, Tewksbury, Creighton & Rose, Portland, Oregon, for
the plaintiff-appellant.
Karin J. Immergut, United States Attorney, Kelly A. Zusman
(argued), Assistant United States Attorney, Portland, Oregon,
for the defendants-appellees.
OPINION
FISHER, Circuit Judge:
We address the issue of whether a district court’s refusal to
give a permissive jury instruction regarding pretext in an
employment discrimination case is reversible error.1 We reaf-
firm that so long as the jury instructions set forth the essential
elements that the plaintiff must prove, a district court does not
1
Browning also appeals several evidentiary rulings, which we address
in a concurrently filed memorandum disposition.
6082 BROWNING v. UNITED STATES
abuse its discretion in declining to give an instruction explic-
itly addressing pretext.
I.
Henrietta Browning has worked at an Internal Revenue Ser-
vice call center in Portland, Oregon, since 1989. In 1998, she
was temporarily promoted to the position of team leader,
assuming responsibility for the supervision of a group of
employees. The following year, incoming operations manager
Gloria Candanoza made Browning’s promotion permanent.
After Browning transferred from the night shift to the day
shift in 2002, she was supervised by department manager Art
Ayotte.
As a team leader, Browning was required to monitor a cer-
tain number of the calls performed by each employee on her
team each month, write a detailed critique of the call and enter
the review into a computerized database. Team leaders were
also each assigned responsibility for an “application” (a dis-
tinct area of tax law) and expected to similarly monitor
employees’ performance regarding that application. In 2003,
Ayotte’s performance evaluation for Browning rated her as
not having met expectations because she had failed to com-
plete the required number of phone reviews, and Browning
was placed on a 60-day performance improvement plan
(“PIP”) to address her shortcomings. Browning met with
Ayotte weekly during the course of her PIP and believed she
was on pace to satisfactorily complete the PIP requirements.
At the end of her PIP, however, Ayotte concluded that Brow-
ning still had not completed the required number of phone
reviews for employees within her application or submitted
requisite employee security reviews, and recommended that
Browning be demoted. Browning contested the demotion, but
— although a labor relations specialist agreed a miscommuni-
cation was responsible for Browning’s failure to complete one
element of her PIP requirements — the rest of her objections
were found not to be valid and Browning was demoted.
BROWNING v. UNITED STATES 6083
Browning was reassigned to her former position as a taxpayer
service specialist.
II.
In November 2003, Browning filed a complaint with the
Equal Employment Office alleging racial discrimination and
retaliation for a prior EEO complaint that Browning had
brought against another supervisor. After the EEO investiga-
tion found no discrimination had occurred, Browning filed
this lawsuit in federal district court alleging racial discrimina-
tion and retaliation. At the close of trial, Browning requested
that the following instruction be given to the jury:
Consistent with the general principle of law that a
party’s dishonesty about a material fact may be con-
sidered as affirmative evidence of guilt, if you find
that the defendants’ explanation about why they took
adverse action against a plaintiff is not worthy of
belief, you may infer a discriminatory or retaliatory
motive from that fact.
She based her proposed instruction on a passage in Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 147
(2000), which held:
In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a dis-
criminatory purpose. Such an inference is consistent
with the general principle of evidence law that the
factfinder is entitled to consider a party’s dishonesty
about a material fact as “affirmative evidence of
guilt.”
The district court refused to give the requested instruction.
Browning now appeals, arguing that the refusal to give a per-
6084 BROWNING v. UNITED STATES
missive pretext instruction was reversible error. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
III.
Jury instructions are reviewed for an abuse of discretion.
See Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). We
consider the jury instructions as a whole and evaluate whether
they were misleading or inadequate, see Guebara v. Allstate
Ins. Co., 237 F.3d 987, 992 (9th Cir 2001), and whether any
error was harmless, see Swinton v. Potomac Corp., 270 F.3d
794, 805 (9th Cir. 2001).
[1] In Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338(9th Cir. 1987), we held that refusal to give a permissive pre-
text jury instruction was not reversible error. Cassino sued his
employer, Reichhold Chemicals, for age discrimination.
Reichhold requested the following instruction: “So long as
Reichhold states a legitimate reason for the discharge of Mr.
Cassino, Mr. Cassino has the burden of proving that his age
was a determining factor in Reichhold’s decision and that
Reichhold’s stated reason was merely a pretext for discrimi-
nation.” Id. at 1344. The district court refused and gave only
the following instructions:
1. [Cassino] belongs to a protected group.
2. He was the subject of age discrimination, and
but for his age, he would not have been terminated
by [Reichhold].
3. [Reichhold] intentionally discriminated against
[Cassino] because of his age.
4. That as a direct proximate result of such age dis-
crimination, [Cassino] sustained damages.
BROWNING v. UNITED STATES 6085
Id. The jury found in favor of Cassino. See id. at 1342. We
held that the refusal to give Reichhold’s proposed instruction
was appropriate:
The jury was instructed that it was Cassino’s burden
to prove that he would not have been fired “but for
his age.” Because the instructions reviewed as a
whole set forth the essential elements that Cassino
had to prove in order to prevail, the court did not err
in refusing to give Reichhold’s proposed pretext
instructions.
Id. at 1345; see also Merrick v. Farmers Ins. Group, 892 F.2d
1434, 1441 (9th Cir. 1990) (holding two jury instructions that
“read together clearly state that the existence of a legitimate
basis for terminating [an employee] would not save [the
employer] if the retaliatory motive was the ‘but for’ cause of
his discharge” were “an adequate statement of the law as it
applies to pretext cases” and did not require separate pretext
instruction).
[2] In the years since Cassino, a circuit split has emerged
on the question of permissive pretext instructions.2 Analysis
of discrimination claims has also evolved since Cassino was
decided in 1987. We see no reason, however, to depart from
Cassino’s basic holding that if the jury instructions set forth
the essential elements the plaintiff needs to prove, the district
court’s refusal to give an instruction explicitly addressing pre-
text is not reversible error.
2
Compare Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232(10th Cir. 2002), and Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir.
2001), and Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998),
and Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), with Conroy v.
Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004) (holding
permissive pretext instruction is not required), and Moore v. Robertson
Fire Prot. Dist., 249 F.3d 786 (8th Cir. 2001), and Fite v. Digital Equip.
Corp., 232 F.3d 3 (1st Cir. 2000), and Gehring v. Case Corp., 43 F.3d 340(7th Cir. 1994).
6086 BROWNING v. UNITED STATES
Here, the district court gave the following instructions
regarding the reasons the IRS demoted Browning:
In the plaintiff’s first claim, she contends that her
race was a motivating factor in the defendants’ alleg-
edly discriminatory conduct towards her. In her sec-
ond claim, she contends the fact that she complained
about discrimination in the workplace was a motivat-
ing factor in the defendants’ allegedly retaliatory
conduct toward her.
...
Now, in order to prevail on her first claim for race
discrimination, the plaintiff must prove the defen-
dants took certain actions against her and that the
plaintiff’s race was a motivating factor in the defen-
dants taking the action.
In particular, the plaintiff must prove . . . that her
race was a motivating factor in the defendants’ con-
duct.
....
In order to prevail on her second claim for retalia-
tion, the plaintiff must prove the defendants took
certain actions against her because she complained
about race discrimination in the workplace. In partic-
ular, the plaintiff must prove . . . that her protected
activity was a motivating factor in the defendants’
conduct.
The district court defined “motivating factor” as “a factor that
played a role in the decisions” of Candanoza or Ayotte. The
court also instructed the jury that it should “weigh and evalu-
ate the testimony and the credibility of each witness” and that
it should consider both direct and circumstantial evidence
BROWNING v. UNITED STATES 6087
(after explaining both concepts). The court told Browning
that, although it would not give her requested pretext instruc-
tion, she was free to explain to the jurors that they could find
the IRS’s reasons for firing her to be pretextual and infer an
unlawful motive. Specifically, the court said:
I’m mindful of Ninth Circuit authority that cau-
tions trial judges against giving any kind of inference
instruction, and I’m mindful of the risk that an infer-
ence instruction can be seen as potentially a com-
ment on the evidence; and so I’m not inclined to give
any permissive inference instruction and instead to
permit counsel full latitude to argue inferences,
based on a circumstantial evidence instruction.
Apparently in response to the court’s offer, Browning subse-
quently argued to the jury that “if you don’t believe the IRS
witnesses, then you have the right to find for Ms. Browning.”
Although cursory, Browning’s argument advised the jury that
if it did not believe the IRS’s justifications for Browning’s
demotion, it could find in her favor.
[3] In sum, the district court’s jury instructions “set forth
the essential elements that [Browning] had to prove in order
to prevail,” and Browning was free to explain those elements
to the jury in order to make clear that finding the IRS’s prof-
fered reasons for Browning’s demotion pretextual could jus-
tify the jury finding the IRS had discriminated against
Browning. Cassino, 817 F.2d at 1345; cf. Conroy v. Abraham
Chevrolet-Tampa, Inc., 375 F.3d 1228, 1235 (11th Cir. 2004)
(“The charge to the jury gave instructions on drawing infer-
ences from the evidence and weighing the credibility of wit-
nesses. This was sufficient to allow the jury to find
discrimination or retaliation so long as they disbelieved Abra-
ham Chevrolet’s explanation for Conroy’s termination. We
also find it significant that Conroy’s counsel made good use
of his opportunity to argue pretext to the jury in closing state-
6088 BROWNING v. UNITED STATES
ments . . . .”). The district court did not abuse its discretion
in rejecting Browning’s more explicit pretext instruction.
AFFIRMED.