Alan D. Ratliff v. City of Gainesville 99-41472 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________ No. 99-41472 ______________________ ALAN D. RATLIFF, Plaintiff-Appellant, v. CITY OF GAINESVILLE, Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court for the Eastern District of Texas ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT____________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4736 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 JURISDICTIONAL STATEMENT 2 ISSUE PRESENTED 2 STATEMENT OF THE CASE 3 A. Nature of the Case and Course of Proceedings 3 B. Statement of Facts 4 C. District Court Decision 6 STANDARD OF REVIEW 7 SUMMARY OF ARGUMENT 8 ARGUMENT 9 TRIAL COURTS SHOULD INSTRUCT JURORS THAT A PLAINTIFF MAY PROVE DISCRIMINATORY MOTIVE BY MEANS OF A NEGATIVE INFERENCE FROM THE FALSITY OF THE EMPLOYER'S EXPLANATION 9 CONCLUSION 17 CERTIFICATE OF COMPLIANCE 18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Cabrera v. Jakobovitz, 24 F.3d 372 (2d Cir. 1994), cert. denied, 115 S. Ct. 205 (1995) ..................................................... 13 FDIC v. Mijalis, 15 F.3d 1314 (5th Cir. 1994) 7 Febres v. Challenger Carribean Corp., 214 F.3d 57 (1st Cir. 2000) 11 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) 9 Gillins v. Berkeley Electric Cooperative, Inc., 148 F.3d 413 (4th Cir. 1998) 14 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) 1 Green v. Edmands Co., 639 F.2d 286 (5th Cir. 1981) 8 International Bh'd of Teamsters v. United States, 431 U.S. 431 U.S. 324, 358 (1977).............................................. 10 Kobrin v. University of Minn., 34 F.3d 698 (8th Cir. 1994) 15 Marcantel v. Louisiana Department of Transport & Dev., 37 F.3d 197 (5th Cir. 1994) 14 CASES (cont.) McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................................... 15, 16 Mooney v. Aramco et al., 54 F.3d 1207 (5th Cir. 1995) 11 Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796 (8th Cir. 1994) 14 Rubinstein v. Administrators of the Tulane Education Fund, 218 F.3d 392 (5th Cir. 2000) 7, 11 Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998) .......................................... 13 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) 14 Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097 (2000) 10, 11, 12, 15, 16 International Bh'd of Teamsters v. United States, 431 U.S. 324 (1974) 10 Townsend v. Kemper National Insurance Cos., 172 F.R.D. 290 (D. Kan. 2000) 12 United States v. Branch, 46 F.3d 440 (5th Cir. 1995) 7 CASES (cont.) United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. 1996) 7 Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000) 11 Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197 (4th Cir. 1998) ................................................14 Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir.), cert. denied, 977 F.2d 161 (1992) 15 Wvyill v. United Companies Life Ins. Co., 212 F.3d 296 (5th Cir. 2000) 11 STATUTES 28 U.S.C. § 1291 2 28 U.S.C. §§ 1331 and 1337 .................................................................2 Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. passim PRIOR OR RELATED APPEALS There are no prior or related appeals. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________ No. 99-41472 _____________________ ALAN D. RATLIFF, Plaintiff-Appellant, v. CITY OF GAINESVILLE, Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court for the District of Kansas ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of the Age Discrimination in Employment Act, 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. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27-28 (1991). 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. We are concerned that, unless courts instruct juries in cases such as this that they may find that the defendant discriminated against the plaintiff if they find that defendant's stated reasons for the challenged decisions are not the true reasons, ADEA plaintiffs will be unfairly deprived of the benefit of an important method of proof. Accordingly, we offer our views to the Court. STATEMENT OF JURISDICTION The jurisdiction of the district court was invoked under 28 U.S.C. §§ 1331 and 1337, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. This Court has jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291. ISSUE PRESENTED<1> Whether the district court erred by refusing to instruct the jury that it could infer that the defendant acted for a discriminatory reason if it found that the employer's stated reasons for the challenged employment actions were not its true reasons. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court based on a jury verdict in favor of the defendant. The plaintiff filed this action on February 25, 1998, alleging that, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the defendant refused to hire him as a city manager because of his age. RE<2> Tab 1 at 3. Before trial, the district court denied defendant's motion for summary judgment, concluding that there was sufficient evidence to establish a prima facie case of age discrimination and to support a finding that the defendant's proffered reasons for its actions were pretextual. R. Vol. 2 at 644. When the case was submitted to the jury, the district court refused the plaintiff's request to include an instruction stating that the jury may find for the plaintiff if it concludes that the defendant's stated reasons for the challenged decisions are not its true reasons.<3> RE Tab 10 at 78-79. Instead, the court instructed the jury that the plaintiff could prevail on his hiring claim only if he proved that the reasons proffered by the defendant "are (1) false, and (2) a determining or motivating factor for his non-hire was his age." RE Tab 13 at 98. The jury returned a verdict for the defendant and the plaintiff filed a timely notice of appeal on December 21, 1999. RE Tab 14 at 103-04; RE Tab 15 at 105. B. Statement of Facts In November 1994, the City of Gainesville hired a recruiting firm, Ralph Anderson & Associates ("RAA"), to conduct a search for a new city manager. The written profile of the position approved by the City stated that the selectee should have (1) a diverse general background in municipal management and experience as a city manager, city administrator, chief administrative officer, or an assistant city manager in a similar or larger community, (2) a master's degree, although "a successful managerial track record can be substituted for advanced education," and (3) experience in a stand-alone semi-rural community, i.e., one that provides its own solid waste collection, landfill, water, wastewater treatment, airport and cemetery. R. Vol. 2 at 637. An advertisement approved by the city stated that the city sought an "Up and Coming," "aggressive" leader. Id. Gainesville's mayor, James Hatcher, and members of the city council told David Eisenlohr of RAA that the city was looking for a "younger person" who was "very aggressive, very high energy and was not there thinking in terms of putting down roots," but rather would remain in the position a relatively short period of time. R. Vol. 9 at 35-36 (Eisenlohr); R. Vol. 2 at 637-38. In early 1995, Alan Ratliff, who was then 54 years old, submitted his resume and supporting documents to RAA. R. Vol. 2 at 637. Ratliff had twenty-six years of managerial experience in city government including six years of experience as city manager of a small suburban town; he also had substantial experience in the area of solid waste management, and had received numerous awards in local government. R. Vol. 9 at 56-57, 60-68, 72-73 (Ratliff). Eisenlohr selected Ratliff as a finalist. During his interview, Eisenlohr told Ratliff that he was highly qualified for the position but cautioned him not to leave the impression that he was retiring. R. Vol. 9 at 3, 76 (Ratliff). Eisenlohr also selected four other finalists and four alternates, all of whom were substantially younger than Ratliff. R. Vol. 2 at 638. During the selection process, Larry Jackson, an acquaintance of the mayor, testified that after he recommended Ratliff to the mayor, the mayor told him that the city was looking for a young man. R. Vol. 9 at 14, 16-18 (Jackson). The City ultimately rejected Ratliff, and hired instead Alan Mueller, a man in his early 30's with a master's degree and an engineering background but substantially less experience. R. Vol. 10 at 148 (Kaden); R. Vol. 11 at 16-17 (Davis); R. Vol. 11 at 60 (Cox). The City stated that Ratliff was not selected for three reasons: (1) Ratliff was the only finalist without an advanced degree; (2) Ratliff did not have an engineering background -- a qualification which was not included in the job listing and which several council members deemed unimportant; and (3) Ratliff had little, if any, experience working for a "stand-alone" city which owned and/or managed solid waste collection and disposal facilities. R. Vol. 2 at 641. However, after the council selected Mueller, a council member told Ratliff that he believed the only reason why Ratliff was not hired was because of his age. R. Vol. 10 at 138-144 (Kaden). C. District Court Decision On October 15, 1999, the district court denied the City's motion for summary judgment on Ratliff's claim of age discrimination. R. Vol. 2 at 644. In denying the City's motion for summary judgment, the court stated that it was not "second-guessing" the City's business judgment. Id. at 643. Nonetheless, the court concluded that there was sufficient evidence to support a finding that the City's decision not to hire Ratliff was unlawfully motivated, citing evidence that Ratliff was qualified, had more experience than the substantially younger selectee, and that the decision-makers alluded to age as a factor in the decision not to hire him. Id. at 643-44. The court concluded that "the plaintiff has offered [] sufficient evidence of the pretextual nature of defendant's asserted non-discriminatory reasons for not hiring Ratliff." Id. at 644. After trial the district court instructed the jury that the plaintiff could prevail on his hiring claim only if he proved that his age was a "determining or motivating factor" in the decision. RE Tab 13 at 98. The court stated that, "if Mr. Ratliff can show that the articulated reasons given by the City of Gainesville are (1) false, and (2) a determining or motivating factor for his non-hire was his age, then you may find for Mr. Ratliff." Id. However, the court refused plaintiff's request to instruct the jury that it could infer discriminatory intent from a showing that the defendant's stated reasons were not true. Id.; RE Tab 10 at 79. The jury returned a verdict for the defendant on all claims. RE Tab 14 at 103-04. STANDARD OF REVIEW This Court reviews jury instructions for "harmful error." Rubinstein v. Administrators of the Tulane Education Fund, 218 F.3d 392, 404 (5th Cir. 2000); accord, United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. 1996). The reviewing court is to determine whether, viewing the instructions as a whole, there is substantial doubt whether the jury was properly guided and whether they had a proper understanding of the issues. United States v. Branch, 46 F.3d 440, 442 n.2 (5th Cir. 1995); FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994). "The function of the reviewing court with respect to instructions is to satisfy itself that the instructions show no tendency to confuse or mislead the jury with respect to the principles of law." Green v. Edmands Co., 639 F.2d 286 (5th Cir. 1981) (citing Wright & Miller, Federal Practice and Procedure: Civil § 2558). SUMMARY OF ARGUMENT It is well settled that an ADEA plaintiff may establish that an employer intentionally discriminated on the basis of age without affirmative evidence of a discriminatory motive. This principle is vital to the enforcement of the ADEA because plaintiffs rarely have access to direct evidence of an employer's unlawful motivations. The plaintiff in this action sought to prove his claim of discrimination indirectly by proving that the defendant's stated reasons for demoting and terminating him were unworthy of belief. However, the district court refused to explain to the jury that it could infer that the defendant acted for a discriminatory reason if it found that the defendant's stated reasons were not its true reasons. Without that instruction there is a real possibility that the jury found for the defendant because it believed that the plaintiff could not prevail without affirmative evidence that his age was a motivating factor in the challenged employment action. Since the jury charge permitted the jury to find for the defendant because the plaintiff did not provide affirmative proof that age motivated its decision, the judgment in favor of the defendant should be reversed. ARGUMENT TRIAL COURTS SHOULD INSTRUCT JURORS THAT A PLAINTIFF MAY PROVE DISCRIMINATORY MOTIVE BY MEANS OF A NEGATIVE INFERENCE FROM THE FALSITY OF THE EMPLOYER'S EXPLANATION. Alan Ratliff alleges in this action that the City refused to hire him because of his age. Although he produced some evidence that city officials involved in the decision not to hire him were biased against him because of his age, Ratliff relied primarily on evidence that the City's articulated reasons for refusing to hire him were unworthy of belief. It is well established that the factfinder in an employment discrimination action may infer that a challenged decision was based on a discriminatory motive from evidence showing that the decision was not based on a nondiscriminatory motive. As the Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race." Since a plaintiff eliminates the most obvious nondiscriminatory explanations for a decision by establishing a prima facie case (see International Bh'd of Teamsters v. United States, 431 U.S. 431 U.S. 324, 358 (1977)), this inference is available if he can show that any additional reasons articulated by the defendant are not the true reasons for the decision. As the Supreme Court recently held, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false," will ordinarily "permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097, 2109 (2000). The district court properly held in its decision denying defendant's motion for summary judgment that the evidence in this case is sufficient to establish a prima facie case and to support a finding that the City's stated reasons for its actions were not its true reasons. R. Vol. 2 at 641-44. Ratliff demonstrated a prima facie case by showing that he was 54 years of age at the time of the adverse action, that he applied for and was qualified for the position sought, that he was rejected and the City hired a 31-year-old applicant. Id. at 641. Then Ratliff rebutted the City's three proffered reasons for its decision - that Ratliff did not have an advanced degree, he did not have an engineering background, and that he had "little, if any, experience working for a 'stand-alone' city" - presenting evidence that they were not true. Id. at 641, 643. In addition, Ratliff introduced evidence of numerous comments made by decision-makers on the city council that they were seeking a "young candidate" for the city manager position, and a statement from one council member that the reason he believed that Ratliff was not selected was because of his age. Id. at 643. Accordingly, under Reeves, the jury could infer, without any other affirmative proof, that the decision was based on Ratliff's age. Nonetheless, the district court refused to give the jury an instruction to that effect.<4> This was error. A plaintiff has a right to an instruction on his theory of the case, provided that his theory is both valid in law and supported by evidence in the record. See Febres v. Challenger Carribean Corp., 214 F.3d 57 (1st Cir. 2000); Mooney v. Aramco et al., 54 F.3d 1207, 1217 (5th Cir. 1995) (plaintiff entitled to instruction on legal theory if s/he submits evidence on the theory's requisite elements). The jury instruction requested by Ratliff met the above legal and evidentiary criteria and should have been offered. Some courts that have declined to give a similar instruction have stated that they view it as unnecessary since a general instruction that plaintiff can prevail only if he proved that his age was a motivating factor in the challenged decisions is a correct statement of the law and appropriately focused on the ultimate issues in the case. See, e.g., Townsend v. Kemper National Ins. Cos., 172 F.R.D. 290, 292 (D. Kan. 2000). We disagree. By failing to explain to the jury that it was permitted to infer that the City acted on the basis of age if it found that the City's stated reasons for failing to hire Ratliff were false, the court created a real risk that the jury would reject Ratliff's claim because it erroneously believed that he was required to prove affirmatively that age motivated that decision. The instruction the Court gave could easily be understood to require that the plaintiff establish a discriminatory motive by affirmative evidence in addition to the evidence that the proffered reasons were not the real reasons. No such additional evidence is required. Reeves, 120 S. Ct. at 2108 (to infer discriminatory motive solely from the falsity of employer's explanation "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'"). Both the Second Circuit and the Third Circuit have recognized this problem in holding that a court's refusal to give an instruction like the one plaintiff requested here is reversible error. See Cabrera v. Jakobovitz, 24 F.3d 372, 382 (2d Cir. 1994) (a jury must be told that it "is entitled to infer, but need not infer" that a plaintiff who has established a prima facie case has proved intentional discrimination if it disbelieves defendant's explanation), cert. denied, 115 S. Ct. 205 (1995) ; Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) ("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"). This Court should take the same approach. The legal point explained in plaintiff's proposed instruction - that, notwithstanding that a plaintiff has the burden of proving discriminatory motive, a jury may find that a discriminatory motive exists by a negative inference from proof ruling out a nondiscriminatory explanation - is a simple one. However, it is not intuitively obvious. A juror would likely interpret the court's instruction that the plaintiff can prevail only if he proves that his age "was a motivating factor" in the decision to mean that the plaintiff must prove that point affirmatively. See Smith, 147 F.3d at 280. The possibility of that error is demonstrated by the fact that several courts have made it. After the Supreme Court emphasized in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 518-19 (1993), that the plaintiff always retains the ultimate burden of proving discriminatory intent, a number of appellate courts, including this Court, interpreted this to mean that the plaintiff must produce some affirmative evidence of discriminatory motive in addition to the prima facie case and proof that the stated reasons are false. See, e.g., Marcantel v. Louisiana Dep't of Transp. & Dev., 37 F.3d 197, 199 (5th Cir. 1994) (Hicks instructs that "the `pretext-only' doctrine is not enough; even if the employee proves that the employer's nondiscriminatory reason is pretextual, the plaintiff must prove that an unlawful discriminatory intent motivated the employer's action"); Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416-17 (4th Cir. 1998) (although plaintiff demonstrated that defendant's reasons were "obviously contrived," such evidence "is not in itself sufficient, under this Circuit's precedents, to survive [defendant's] motion for summary judgment" because a "pretext-plus" standard for summary judgment in employment discrimination cases applies (citing Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 201-02 (4th Cir. 1998)); compare Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 801 (8th Cir. 1994) (holding employee "must do more than simply discredit an employer's nondiscriminatory explanation; he must also present evidence capable of proving that the real reason for his termination was discrimination based on age"), with Kobrin v. University of Minn., 34 F.3d 698, 703 (8th Cir. 1994) (concluding plaintiff "may overcome summary judgment by producing evidence that, if believed, would allow 'a reasonable jury to reject the defendant's proffered reasons for its actions' "). The confusion over this point led the Supreme Court to grant certiorari in Reeves to clarify the precise point that Ratliff asked the district court to explain to the jury. Ratliff was entitled to this instruction on a vital aspect of his case. This Court looks with disfavor on instructions that contain a description of the burden shifting analysis or the elements of a prima facie case (as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), because instructions on such analytical subtleties can be confusing for juries. See Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.) (instructions setting forth the burden shifting paradigm can be confusing), cert. denied, 977 F.2d 161 (1992). However, this concern is not implicated by the plaintiff's proposed instruction. While the inference permitted by proof of the falsity of defendant's nondiscriminatory explanation depends on the existence of evidence creating a prima facie case, the existence of a prima facie case was not disputed below.<5> Accordingly, if the jury found that the city's explanation was not "true" as required by the proposed instruction, it could infer that the defendant discriminated against the plaintiff on the basis of age. Reeves, 120 S. Ct. at 2101. Ratliff's proposed jury instruction accurately states an important principle of proof in disparate treatment cases. Without that instruction, there is a real possibility that the jury found for the defendant because it believed that the plaintiff could not prevail without affirmative evidence that his age was a motivating factor in the challenged decision. Therefore, the district court erred by refusing to give the requested instruction. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case should be remanded for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Ste. 7020 Washington, D.C. 20507 202/663-4726 September 6, 2000 CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2 and .3, I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 3847 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 8 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5); Fifth Cir. Rule 32.1. _________________________ SUSAN L.P. STARR September 6, 2000 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLANT ALAN D. RATLIFF Jane Legler Byrne, Esq. JANETTE JOHNSON & ASSOCIATES 2601 Welborn Dallas, Texas 75219 COUNSEL FOR DEFENDANT-APPELLEE CITY OF GAINESVILLE Terry S. Boone Lu Pham Haynes and Boone 201 Main Street, Suite 2200 Fort Worth, Texas 76102-3126 _________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Suite 7020 Washington, D.C. 20507 September 6, 2000 1 The Commission takes no position on any other issues raised in this appeal. 2 "RE" refers to Record Excerpts submitted by Appellant. "R" refers to the district court record. 3 The plaintiff's instructions stated, "The jury's disbelief of the reasons put forward by the defendant, (particularly if disbelief is accompanied by a suspicion of mendacity) may[] suffice to show intentional discrimination. If the Plaintiff disproves the reasons offered by Defendants by a preponderance of the evidence, you may presume that the employer was motivated by age discrimination." RE 11 at 89-90. 4 This Court's recent decisions in Vadie v. Mississippi State Univ., 218 F.3d 365, 372 (5th Cir. 2000); Wvyill v. United Companies Life Ins. Co., 212 F.3d 296, 301 (5th Cir. 2000); and Rubinstein, 218 F.3d at 392, are not inconsistent with this rule. Those cases address whether there was sufficient evidence to support a finding of discrimination. Here, in its decision denying summary judgment, the district court recognized that there was sufficient evidence to support a finding that the City failed to hire Ratliff because of his age. In light of this finding, the question is whether the court should have instructed the jury that it was permitted to infer discrimination from a finding that the reasons proffered by the City were false. 5 Even in cases in which the existence of a prima facie case is disputed, it will rarely be necessary to instruct the jury separately on the elements of a prima facie case. It is almost always the case that, where a defendant disputes an element of the prima facie case -- for example, by arguing that the plaintiff is not qualified, or that there was no vacancy -- it will assert the same point as part of its nondiscriminatory explanation for the challenged decision. In such cases, a court can instruct the jury on the important point that a plaintiff may prove discriminatory motive by means of a negative inference from the falsity of the employer's explanation without explaining the intricacies of the McDonnell Douglas burden shifting scheme. In such a case, if the jury finds that the explanation is not "true" as required by the proposed instruction, they will effectively have found, a fortiori, that plaintiff established a prima facie case.