IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 03-11405-GG ________________________ GLENN J. CONROY, Plaintiff-Appellant, v. ABRAHAM CHEVROLET-TAMPA, INC., d/b/a AUTOWAY CHEVROLET, Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Tampa Division The Honorable Joseph H. Rodriguez, Presiding Civil No. 8:01-CV-1466-T-27MAP __________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT AND IN SUPPORT OF REVERSAL __________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD, Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax. (202) 663-7090 Conroy v. Abraham Chevrolet- Tampa, Inc. C-1 of 1 No. 03-11405-GG CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Amicus Curiae U.S. Equal Employment Opportunity Commission submits this list, pursuant to 11th Cir. Rule 26.1, which includes trial judges, attorneys, and other persons and corporations who are known to have an interest in the outcome of this appeal: Abraham Chevrolet-Tampa, Inc. d/b/a Autoway Chevrolet Craig L. Berman, Esq., Counsel for Plaintiff-Appellant Shannon Carlyle, Esq., Counsel for Appellant Glenn J. Conroy, Plaintiff-Appellant John G. Crabtree, Esq., Counsel for Appellant Lorraine C. Davis, Assistant General Counsel, EEOC John R. Hamilton, Esq., Counsel for Appellee Bradley R. Johnson, Esq., Counsel for Defendant-Appellee James L. Lee, Deputy General Counsel, EEOC Susan R. Oxford, Attorney, EEOC The Honorable Joseph H. Rodriguez, U.S.D.J. David J. Sockol, Esq., Counsel for Plaintiff-Appellant Raul Valles, Jr., Esq., Counsel for Defendant-Appellee Carolyn L. Wheeler, Acting Associate General Counsel, EEOC The Honorable James Whittemore, U.S.D.J. _____________________________ Susan R. Oxford TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . C-1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings . . . . 2 B. Statement of Facts . . . . . . . . . . . . . . . . . 3 C. Disposition Below . . . . . . . . . . . . . . . . . 11 D. Standard of Review . . . . . . . . . . . . . . . . . 12 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page * Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996) . . . . . . . . . . . 12, 26 * Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir.), cert. denied, 513 U.S. 876 (1994) . . . . . . . . 17, 23 Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997), cert. denied sub nom., Combs v. Meadowcraft Co., 522 U.S. 1045 (1998) . 16, 17, 23 Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . . 17 Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)(en banc) . . . . . . . . 15 Fite v. Digital Equip. Corp., 232 F.3d 3 (1st Cir. 2000) 25 Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994) . . 24, 25 Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413 (4th Cir. 1998) . . . . . . . . . . . . . 15 Marcantel v. Louisiana Dept of Transp. & Devel., 37 F.3d 197 (5th Cir. 1994) . . . . . . . . . . . . . 15 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . 3 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . 1 Moore v. Robertson Fire Prot. Dist., 249 F.3d 786 (8th Cir. 2001) . . . . . . . . . . . . . 25 * Palmer v. Bd. of Regents of the Univ. Sys. of Georgia, 208 F.3d 969 (11th Cir. 2000) . . . . . . . . . . . passim CASES (cont'd) page * Ratliff v. City of Gainesville, Tex., 256 F.3d 355 (5th Cir. 2001) . . . . . . . . . . 17, 21, 23 * Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . 14, 15, 19, 23 Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283 (11th Cir. 1998) . . . . . . . . . . . 13 * Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998) . . . . . . . . . . . . passim St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . 14 * Townsend v. Kemper Nat'l Ins. Cos., 294 F.3d 1232 (10th Cir. 2002) . . . . . . . . . . . passim U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983) . . . . . . . . . . . . . . . . 14 Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir. 1994) . . . . . . . . . . . . 15 STATUTES Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et. seq. . . . . . . . . . . . . . 1, 2 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 03-11405-GG ________________________ GLENN J. CONROY, Plaintiff-Appellant, v. ABRAHAM CHEVROLET-TAMPA, INC., d/b/a AUTOWAY CHEVROLET, Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Tampa Division The Honorable Joseph H. Rodriguez, Presiding Civil No. 8:01-CV-1466-T-27MAP __________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT AND IN SUPPORT OF REVERSAL __________________________________________________ STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et. seq., and other federal laws prohibiting employment discrimination. Private actions such as this play a significant role in the enforcement of the ADEA. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358-59 (1995). This appeal raises an important issue concerning the proper jury instructions in a case where an individual plaintiff seeks to establish by indirect proof that his employer took adverse employment actions against him because of his age. The Commission submits that, in order to ensure plaintiffs are not deprived of the benefit of an important method of proof, courts should properly instruct juries, in cases such as this, that they may find the defendant discriminated against the plaintiff if they disbelieve the defendant's explanation for its actions. Accordingly, we offer our views to the Court. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from the district court's denial of Plaintiff Glenn Conroy's motion for a new trial based on the court's failure to give Conroy's requested jury instructions on "pretext." Conroy filed this action against his former employer, Abraham Chevrolet, under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., alleging he was discharged because of his age and in retaliation for refusing to fire another older worker. R.1. To prove his ADEA claim, Conroy relied, primarily, on the indirect form of proof recognized by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The district court refused Conroy's request that the jury be instructed it could infer a discriminatory motive on the part of Abraham Chevrolet if it disbelieved the former employer's explanation for firing Conroy. R.67 at 56-13 to 58-17, 171-10 to 21. At the close of the three-day trial, the jury ruled in favor of Defendant Abraham Chevrolet. R.51. Conroy moved for a new trial based, in part, on the district court's failure to instruct the jury on "pretext." R.53. The district court denied Conroy's motion, R.59, and this appeal followed. R.60. B. Statement of Facts When Plaintiff Glenn Conroy was fired from his position as commercial sales manager for Abraham Chevrolet in January 2001, he was 54 years old and had a decade of experience in commercial sales for General Motors (GM) dealerships in the area. R.66 at 34-19 to 36-17. He was discharged by the new General Manager, William Bledsoe, who had arrived at the dealership approximately three months earlier. Id. at 131-18 to 22. Conroy states that shortly before he was discharged, Bledsoe twice directed him to fire Dick Weber, the commercial salesman in charge of "fleet" sales, to whom Bledsoe referred as an "old-geezer" and "dead wood" (Weber was in his early 70s at the time). R.65 at 58-22 to 60-6, 62-1 to 17, 130-8 to 20, 153-1 to 20; R.66 at 38-9 to 10, 41-9 to 25, 42-21 to 43-2. Conroy did not comply, stating later he believed Bledsoe's directive was because of Weber's age and, therefore, unlawful. R.66 at 42-15 to 20. At Conroy's termination meeting, Bledsoe said nothing to Conroy about any performance deficiencies and even complimented Conroy on his knowledge of the commercial side of the business, but said that the company was "going in a different direction." R.65 at 62-22 to 63-11; R.66 at 47-2 to 48-1. Conroy states that following this meeting, he told Weber that Bledsoe had wanted him to fire Weber, but he [Conroy] "took the bullet instead of you." R.66 at 49-3 to 12. Conroy sued Abraham Chevrolet alleging discriminatory discharge based both on age and retaliation (for having refused to terminate Weber). R.1. The district court denied Abraham Chevrolet's motion for summary judgment, R.24, and the case was tried before a jury. R.40. At trial, Conroy's witnesses testified that Bledsoe made a number of "ageist" comments during his six months at the dealership, including referring to staff in the commercial sales department as "the geriatrics" and referring to Weber and other older employees of Abraham Chevrolet variously as "old geezer," "old man," and "dead wood." R.65 at 24-6 to 14, 58- 22 to 60-6, R.66 at 38-16 to 39-25. Bledsoe did not deny that he had used at least some of these phrases, stating they were slang expressions that he did not realize might cause offense to some persons. See, e.g., R.66 at 129-11 to 20. Plaintiff's witnesses also testified that Bledsoe often mentioned that the staff at his former dealership had been much younger, and that Abraham Chevrolet needed to hire employees who were "younger and more energetic" and "fresh blood." R.65 at 52-1 to 3, 55-4 to 57-16, 71-1 to 9, 128-10 to 129-20; R.66 at 40-8 to 24. Although Bledsoe initially testified that he used these phrases figuratively to refer to energy level and job enthusiasm, R.66 at 128-17 to 22, he later admitted a more literal explanation, conceding that he "equate[d] people that are younger as taking action." Id. at 133-1 to 134- 14. The parties gave conflicting testimony concerning the reasons for Conroy's termination. Conroy presented evidence that at the time he was fired both he and the commercial division were meeting the dealership's general expectations for sales of commercial cars, given that he had only been in the position for less than a year and was still building up his clientele at this location. R.66 at 44-9 to 13, 110-16 to 18. Conroy also testified that neither Bledsoe nor anyone else at Abraham Chevrolet ever disciplined him, counseled him, or told him the commercial department's sales were unsatisfactory. Id. at 37-15 to 22, 48-10 to 24, 110-19 to 24. In fact, Bledsoe admitted that he told Conroy twice, shortly before his termination, that Conroy was doing a good job. Id. at 131-7 to 17. Abraham Chevrolet asserted that Conroy was fired for poor performance but that Bledsoe did not say this at Conroy's termination meeting because he wanted to spare Conroy's feelings. R.67 at 150-23 to 151-7. The company presented sales data generated after Conroy's departure by the Human Resources Director for Abraham Chevrolet's parent company. According to Abraham Chevrolet's witnesses, this data indicated the commercial department as a whole and Conroy, in particular, were selling below GM's monthly benchmarks for commercial sales for a number of months prior to Conroy's termination. In direct contradiction to Conroy's testimony, Bledsoe testified that he shared his concern about underselling with Conroy and "may have counseled Conroy" concerning his failure to meet GM's monthly sales performance standards, although he admitted he was "not sure" about this. R.66 at 197-5 to 24, 220-9 to 16. Bledsoe testified that he considered it important for a manager to document performance deficiencies in an employee's personnel file before taking an adverse employment action. Id. at 218-19 to 22. Aside from Bledsoe's equivocal statements, however, the company presented no documentary or other corroborating evidence that Bledsoe had documented Conroy's alleged performance deficiencies or that Conroy received any negative performance evaluations or counseling from anyone while working at Abraham Chevrolet. Conroy also presented evidence that on the same day he was fired, Bledsoe replaced him with Joel Early, who was in his early 40's at the time. R.65 at 135-18 to 20, 144-25 to 145-1, R.66 at 155. Early had been splitting his time between the retail and commercial sides of the dealership at the time and had limited management experience. R.65 at 134-20 to 136-10. Although Bledsoe told Early he was being hired on a probationary basis and had to prove himself, R.65 at 129-1 to 7, 136-7 to 12, Bledsoe testified that he had no specific plans to replace Early when he hired him. R.66 at 182-5 to 183-2. Early was given a temporary pay plan that extended through the end of March and was told to hire new staff for the Commercial Department. Id. at 181-83. A couple of weeks after Conroy told Bonnie Bonovia, on February 7, 2001, that he believed he had been fired because of his age and in retaliation for refusing to terminate Weber, Bledsoe suddenly discharged Early and replaced him with Randy Clark, who was two years older than Conroy and who was suggested to Bledsoe by a regional manager for General Motors. Id. at 200. When asked at trial why he fired Early, Bledsoe could not recall any reason. Id. at 184-15 to 17. In his written response to Conroy's EEOC charge of discrimination, Bledsoe asserted that age was not a factor in his decision to fire Conroy, "particularly since the new replacement is actually two years older than [Conroy]." Id. at 173-6 to 174-3. When asked at trial why he didn't tell EEOC that he had initially promoted a much younger employee (Early) to take Conroy's place, Bledsoe stated, "I don't think it was pertinent." Id. at 175-14 to 16. At the close of the evidence, the court denied Plaintiff's request that the jury be instructed it could infer discriminatory motivation if it disbelieved the company's explanation for terminating him. R.67 at 56-13 to 58-17, 171-10 to 12. The court reasoned that this Court's pattern jury instructions for ADEA claims "sufficiently incorporate the concept that the plaintiff wishes to get across to the jury" and that inclusion of an instruction "on the McDonnell Douglas framework" was likely to create jury confusion. Id. at 171-12 to 18. The court then instructed the jury that the plaintiff had the burden of proof "on each and every element of ... his claim[]" and that "it is the burden of the plaintiff to prove to your satisfaction by a preponderance of the evidence that the defendant discriminated against the plaintiff because of the plaintiff's age" (i.e., "that plaintiff's age was a substantial or motivating factor that prompted the defendant to terminate his employment ...."). Id. at 183 to 185. The instructions emphasized that under the ADEA only discharge based on age was unlawful, that an employer could discharge an employee "for any other reason, good or bad, fair or unfair" and that the jury "must not second guess that decision or ... substitute [its] own judgment for that of the defendant ...." Id. at 184. The jury returned a verdict in favor of Abraham Chevrolet. R.51. C. Disposition Below Conroy moved for a new trial arguing, among other things, that the court erred in failing to give an instruction on "pretext." R.53. The district court denied the motion. R.59. The court reasoned that in Palmer v. Bd. of Regents of the Univ. Sys. of Georgia, 208 F.3d 969 (11th Cir. 2000), this Court held that the pattern instructions "convey the law correctly" and that the risk of confusing the jury makes it "inappropriate to instruct the jury with phrases like 'prima facie case' and 'burden of production'." R.59 at 8-9 (citing Palmer, 208 F.3d at 974). The district court cited decisions from other circuits holding that although a judge may deliver a pretext instruction, "the judge may and usually should leave the subject to the argument of counsel." R.59 at 9 (citations omitted). The court concluded that in this case plaintiff's counsel "clearly argued that the defense case was not credible" but "[t]he jury, obviously, decided the credibility questions in Defendant's favor." Id. at 10. This appeal followed. D. Standard of Review This Court reviews jury instructions de novo to determine whether, considered as a whole, they "sufficiently instructed the jury so that the jurors understood the issues and were not misled." Palmer, 208 F.3d at 973 (citations omitted). Although the trial judge is given "wide discretion as to the style and wording employed in the instructions," this Court will grant a new trial even where the instructions are technically a correct statement of the law if the Court is "left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations." See Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir. 1996)(citations omitted)(new trial ordered because although instruction given was not technically incorrect, it failed to define an important copyright term and failed to instruct jury on legal consequences of certain findings). See also Palmer, supra (reversal warranted if "failure to give the [requested] instruction resulted in prejudicial harm to the requesting party")(citing Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir. 1998). SUMMARY OF ARGUMENT The district court in this case committed reversible error in declining to instruct the jury that it was permitted to infer a discriminatory motive if it disbelieved Abraham Chevrolet's explanation for firing Conroy. Conroy relied primarily on the McDonnell Douglas method of indirect proof to establish that his termination was motivated by age discrimination, and at trial he presented enough evidence to raise a jury question that Abraham Chevrolet's asserted reason for discharging him was not the true reason he was fired. The inference of discriminatory, age-based motive a jury is permitted to make based on such a finding of pretext is not intuitively obvious, however. Indeed, without an appropriate instruction on "pretext," a reasonable jury could not be expected to understand that it is permitted to infer age discrimination based on a finding that the defendant's asserted reason was not the true reason. Taken as a whole, the instructions given in this case did not properly guide the jury in its deliberations. Because the requested instruction goes to the heart of Conroy's discrimination proofs and is not intuitively obvious, the omission of this instruction constitutes reversible error, and Conroy is entitled to a new trial on this ground. ARGUMENT It is well-settled that an ADEA plaintiff does not need affirmative evidence of discriminatory motive to establish that an employer intentionally discriminated on the basis of age. As the Supreme Court explained in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)(factfinder's disbelief of reasons put forward by defendant may, together with elements of prima facie case, suffice to allow jury to infer ultimate fact of intentional discrimination); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998). This permissible inference is critical to civil rights enforcement, since "there will seldom be 'eyewitness' testimony as to the employer's mental processes." Reeves, 530 U.S. at 147 (citing U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). This Court acknowledged the importance of this permissible inference in Palmer. See 208 F.3d at 974 ("jury's disbelief of the defendant's explanation is enough because the untruthfulness itself can provide the necessary inference of discrimination"). That a conclusion of discrimination can be inferred from disbelief of the employer's asserted non-discriminatory reasons is not intuitively obvious, however, as illustrated by the number of courts, before Reeves, that required plaintiffs to offer "pretext-plus" (i.e., additional evidence, over and above proof of pretext, to demonstrate that the employer's real reason was discrimination). For this reason, we agree with the Third Circuit that "[i]t does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing [an] inference [of discrimination from the falsity of the employer's proffered explanation];" given differences of opinion among judges over the years concerning how a jury may use its finding of pretext, "it would be disingenuous to argue that it is nothing more than a matter of common sense." Smith, 147 F.3d at 281 (new trial granted because court failed to instruct jury on "pretext"). Conroy relied, primarily, on the McDonnell Douglas "pretext" framework to establish that he was terminated because of his age. Having relied on this permissible method of proving discrimination, Conroy was entitled to have the jury instructed on "pretext," as he requested, because Conroy presented enough evidence that a reasonable juror could disbelieve Abraham Chevrolet's proffered reasons and could infer from the falsity of the company's explanation that it was trying to cover up a discriminatory purpose. As this Court stated in Palmer: [T]he jury needs to be told ... [it] is entitled to infer, but need not infer, that [the plaintiff's] burden [of proving discriminatory animus] has been met if they find that [the requisite facts for the prima facie case] have been established and they disbelieve the defendant's explanation. 208 F.3d at 974 (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.), cert. denied, 513 U.S. 876 (1994); alterations added and in original); see also Townsend v. Kemper Nat'l Ins. Cos., 294 F.3d 1232, 1241 (10th Cir. 2002)(district court required to give pretext instruction); Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 360-61 (5th Cir. 2001)(same); Smith, 147 F.3d at 279-81 (same). The inclusion of such an instruction does not mean a plaintiff will automatically prevail. Indeed, as this Court noted in Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997), cert. denied sub nom., Combs v. Meadowcraft Co., 522 U.S. 1045 (1998), "the plaintiff may or may not ultimately prevail in the litigation [by discrediting the employer's explanation], because the factfinder may or may not choose to make the permissible inference of discrimination." Cf. Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 650-51 (4th Cir. 2002)(upholding trial court's decision to give pretext instruction because "instructions ... made clear that the jury could, but did not have to, infer discrimination if it disbelieved [employer's] explanation"). Absent an instruction on pretext, however, there is no way to know whether the jury exercised its prerogative not to make the inference, or did not realize such an inference is permissible. The district court erred in declining to give a "pretext" instruction in this case. Read as a whole, the jury instructions did not properly instruct the jury on Conroy's theory of proof because the instructions did not inform the jury of the permissible inference available under Reeves. Without a "pretext" instruction, the instruction given here that the plaintiff has the burden of proving discriminatory motive by a preponderance of the evidence, along with the directive (under the "business judgment" instruction) not to second-guess the employer's reasons, likely led the jurors to conclude they were permitted to find age discrimination only if Conroy offered some affirmative evidence of discrimination. See Townsend, 294 F.3d at 1241 & 1243 (Henry, J., concurring). The business judgment rule, in particular, is intended to protect the sincere employer against jurors second- guessing the reasonableness of its judgments; it is not intended to protect an employer from having the jury consider whether its proffered reasons are credible, or to protect the employer from liability if the jury could find discrimination because defendant's reasons are not credible. Indeed, when an employer offers reasons that are not believable, it is often nothing more than an attempt to mask discrimination. Reeves, 530 U.S. at 147-48; Palmer, 208 F.3d at 974 (citing Smith, 147 F.3d at 279). The Courts of Appeals for the Fifth and Tenth Circuits recently found reversible error where the lower court denied the plaintiff's request for a jury instruction on the permissive inference in a pretext case under circumstances very similar to this case. In Townsend, the Tenth Circuit recognized that the significance of pretext in determining discrimination has for many years been a difficult matter for the courts, and "would certainly be difficult for a jury." 294 F.3d at 1241. Reasoning that "the danger [is] too great that a jury might make the same assumption that the Fifth Circuit did in Reeves," the court held: [I]n cases such as this, a trial court must instruct jurors that if they disbelieve an employer's proffered explanation they may -but need not -infer that the employer's true motive was discriminatory. Moreover we are persuaded by the position of the EEOC that the issue is whether in the absence of any instructions about pretext, "the jury found for the defendant because it believed that plaintiff could not prevail without affirmative evidence that his race was a motivating factor in the challenged employment decisions." Id. As occurred here, the trial court in Townsend instructed the jury that in order for the plaintiff to recover on his federal employment discrimination claim, he had to "prove by the preponderance of the evidence that defendant intentionally discriminated against plaintiff ...." The concurring judge in Townsend explained that giving this "burden of proof" instruction, without an accompanying explanation of the permissive inference that arises from a finding of pretext, is likely to confuse the jury since a "rational juror might very well have interpreted such an instruction to require affirmative proof of discriminatory intent." Id. at 1243 (Henry, J., concurring). Because of this potential jury confusion, "absent the proposed [pretext] instruction, jurors are left without adequate guidance as to the circumstances in which they may infer discriminatory intent." Id. at 1244 (Henry, J., concurring). In Ratliff, the Fifth Circuit similarly remanded plaintiff's ADEA claim for a new trial, holding that "in light of the changes made to a plaintiff's evidentiary burden in discrimination cases outlined in Reeves, the district court erred in failing to give an inference instruction ...." 256 F.3d at 364. Consistent with the Fifth Circuit Pattern Jury Instructions, the district court in Ratliff had advised the jurors that they were "permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience," but did not instruct the jury that it could infer that the employer's explanation was a pretext for discrimination if it disbelieved the employer's proffered reasons. See id. at 360 and nn5&6. The Fifth Circuit rejected Gainesville's arguments that plaintiff's requested "pretext" instruction was redundant in light of the general inference instruction and held, consistent with post-Reeves Fifth Circuit precedent and pre-Reeves decisions of the Second and Third Circuits, that the requested instruction was warranted. Id. at 360-61 & n.7. See also Smith, 147 F.3d at 279 (new trial granted because district court failed to give "pretext" instruction). The district court in this case likewise erred in denying Conroy's motion for a new trial. First, the court below erroneously concluded that this Court's decision in Palmer supports its ruling. In significant contrast to this case, the jury instructions in Palmer included the following pretext/inference explanation: One way that the Plaintiff may show intentional discrimination is by showing that Board of Regents' stated reasons for actions it took were not true, and instead were pretext or cover, hiding an underlying intent to discriminate. [R5-595-599, Palmer, Civ. No. 96-01459-1-JRS (N.D. Ga.)]. The dispute on appeal in Palmer thus centered not on whether a "pretext" instruction should be given (since it was), but whether that instruction was undermined by the district court's inclusion of additional language that might have misled the jury into believing a plaintiff had to prove "pretext-plus." The district court in this case thus erred in construing this Court's decision in Palmer as a license to omit a jury instruction on "pretext." To the contrary, this Court's discussion in Palmer of the importance of instructing the jury on the inference that can be drawn from evidence of pretext, id. at 974 (citing Cabrera, 24 F.3d at 382; Smith, 147 F.3d at 279), supports the conclusion that the district court in this case erred on this point. The district court also wrongly concluded that the pretext instruction Conroy requested would run afoul of this Court's rulings that jury instructions should avoid "phrases like 'prima facie case' and 'burden of production' because they create a distinct risk of confusing the jury." R.59 at 8-9 & n.2, citing Palmer, 208 F.3d at 974 (other citations omitted). The instructions Conroy sought in this case make no mention of such phrases, and a "pretext/inference" instruction can be conveyed to a jury in terms that avoid all such technical references. Finally, the district court wrongly concluded that the omission of a "pretext/inference" instruction did not create any error here because Conroy's counsel argued in his closing that the defense's case was not credible and "[t]he jury ... decided the credibility questions in Defendant's favor." R.59 at 10. In the absence of the proper instruction on "pretext/inference," there is no way to determine, from the verdict, whether the jury decided the defendant's proffered reason was credible, or whether the jury disbelieved the defendant's explanation but concluded, incorrectly, that such a disbelief was not enough to sustain Conroy's burden of proving age discrimination by a preponderance of the evidence. See, e.g., Townsend, 294 F.3d at 1243-44 (Henry, J., concurring). Counsel's arguments are not an adequate substitute for a complete and accurate statement of the law by the judge, as the lower court and Seventh Circuit have wrongly concluded. See Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994); see also Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 790 & n.9 (8th Cir. 2001)(expressing doubt, in dicta, that pretext instruction is compulsory); Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000)(same). It is the trial court that "must ensure 'that the jury be given full and complete instructions by relating the law to the relevant evidence in the case.'" Smith, 147 F.3d at 279. As the Tenth Circuit noted in Townsend, "While counsel may be relied on to point out facts and suggest reasoning, the judge's duty to give an instruction on an applicable matter of law is clear. This is particularly true where, as here, the law goes to the heart of the matter." Id. at 1241. See also Smith, 147 F.3d at 278 ("inescapable duty of the trial judge to instruct the jurors, fully and correctly, on the applicable law of the case")(internal quotes and citations omitted). Indeed, as the Third Circuit noted in Smith, "[i]t is difficult to understand what end is served by reversing [or, as in this case, denying] the grant of summary judgment for the employer on the ground that the jury is entitled to infer discrimination from pretext ... if the jurors are never informed that they may do so." Id. at 280. When viewed as a whole, the jury instructions given in this case did not fairly and adequately inform the jury that it could infer Conroy was terminated because of his age solely based on its disbelief of Abraham Chevrolet's explanation for Conroy's discharge. Conroy presented sufficient evidence in this case to raise a jury question of whether Abraham Chevrolet's reason was a pretext for discrimination, particularly when viewed along with the substantial evidence of Bledsoe's disparaging references to older workers at Abraham Chevrolet and his expressions of animus concerning older workers generally. Viewed in their entirety, the district court's instructions here concerning the plaintiff's burden of proof, the jury's obligation to defer to the defendant's "business judgment" and the jury's ability to disregard testimony it finds to be untruthful raise a "substantial and ineradicable doubt as to whether," in the absence of a pretext instruction, "the jury was properly guided in its deliberations." Bateman, 79 F.3d at 1543. CONCLUSION For all of the foregoing reasons, the district court erred in declining to instruct the jury on the permissible inference it was entitled to make if it disbelieved Abraham Chevrolet's explanation for firing Conroy. For the same reasons, the district court erred in denying Conroy's motion for a new trial on this basis. Because the requested instruction goes to the heart of Conroy's discrimination proofs and is not intuitively obvious, the omission of this instruction constitutes reversible error, and this Court should order a new trial on this ground. Respectfully Submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD July 30, 2003 Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax. (202) 663-7090 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief is prepared in Courier New 12-point type and contains 6,175 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 30th day of July, 2003, I caused an original and six copies of the attached Amicus Curiae Brief, along with an electronic version on floppy disk, to be sent by Federal Express to the Clerk of the Court for the U.S. Court of Appeals for the Eleventh Circuit, and two copies of the attached Amicus Curiae Brief, along with an electronic version on floppy disk, to be sent by Federal Express, next day delivery, to the following counsel of record: Craig L. Berman, Esq. John R. Hamilton, Esq. BERMAN LAW FIRM, P.A. FOLEY & LARDNER 111 Second Avenue N.E., 111 North Orange Avenue, Suite 810 Suite 1800 St. Petersburg, FL 33701 Orlando, FL 32801 Susan R. Oxford DATED: July 30, 2003