John H. Twonsend, III v. Lumbermens Mutual casualty Company IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________ No. 00-3055 ______________________ JOHN H. TOWNSEND, III, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, d/b/a KEMPER NATIONAL INSURANCE COMPANIES, Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the District of Kansas The Honorable Carlos Murguia ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE____________________________________________________ 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 Decisions 6 STANDARD OF REVIEW 9 SUMMARY OF ARGUMENT 10 ARGUMENT 11 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 11 CONCLUSION 20 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Alexander v. Gardner-Denver, , 415 U.S. 36 (1974) 1 Cabrera v. Jakobovitz, 24 F.3d 372 (2d Cir. 1994), cert. denied, 115 S. Ct. 205 (1995) 13 Calhoun v. Ball, Corp., 1997 WL 292129 (10th Cir. June 3, 1997) ..8, 14, 16 City of Wichita v. United States Gypsum Co., 72 F.3d 1491 (10th Cir. 1996) 9 Coletti v. Cudd Pressure Control, 165 F.3d 767 (10th Cir. 1999) 9 Febres v. Challenger Carribean Corp., 214 F.3d 57 (1st Cir. 2000) 12 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) 11 Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996) 9 Gillins v. Berkeley Electric Cooperative, Inc., 148 F.3d 413 (4th Cir.1998) 15 Hennessy v. Penril DataComm Networks, Inc., 69 F.3d 1334 (7th Cir. 1995) 16 Kobrin v. University of Minn., 34 F.3d 698 (8th Cir.1994) 15 Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999) 9 Messina v. Kroblin Transport System Inc., 903 F.2d 1306 (10th Cir. 1990) 17, 19 Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796 (8th Cir.1994) 15 FEDERAL CASES (cont.) Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995) 18 Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097 (2000) 12, 16 Richardson v. Missouri Pacific RR, Co.., 186 F.3d 1273 (10th Cir. 1999) 9 Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998) 13, 14 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) 14, 18 Teamsters v. U.S., 431 U.S. 324 (1974)..................................... 12 Thomas v. Denny's Inc.., 111 F.3d 1506 (10th Cir. 1997) 11 Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 201-02 (4th Cir.1998)...................................................15 Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992) 16 FEDERAL STATUTES 28 U.S.C. § 1291 3 28 U.S.C. §§ 1331 and 1337......................................... 2 42 U.S.C. § 1981 2, 3, 6, 11 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., passim PRIOR OR RELATED APPEALS There are no prior or related appeals. IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________ No. 00-3055 _____________________ JOHN H. TOWNSEND, III, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, d/b/a KEMPER NATIONAL INSURANCE COMPANIES, Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the District of Kansas The Honorable Carlos Murguia ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal laws prohibiting employment discrimination. Private actions such as this play a significant role in the enforcement of Title VII. Alexander v. Gardner-Denver, 415 U.S. 36, 45 (1974). 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 race. 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, Title VII 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, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1). This Court has jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291. ISSUE PRESENTED<1> Whether the district court committed reversible error 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. A. 156-70, 1428-1430.<2> 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 August 12, 1998, alleging that the defendant demoted him and subsequently terminated his employment because of his race in violation of Title VII and 42 U.S.C. § 1981. A. 3. Before trial, the district court denied defendant's motion for summary judgment on these claims, concluding that there was sufficient evidence to establish a prima facie case of race discrimination and to support a finding that the defendant's proffered reasons for its actions were pretextual. A. 55. When the case was submitted to the jury, the district court refused the plaintiff's request that the instructions include a statement 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, instead opting for a general instruction that the plaintiff could prevail on his demotion and discharge claims only if he proved that "[his] race [was] a motivating factor" in the decisions. A. 136. After the jury returned a verdict for the defendant, the plaintiff moved for a new trial, arguing that the district court's refusal to include the requested instruction was misleading and prejudicial because it contained only a partial statement of applicable law. A. 159. On February 17, 2000, the district court denied the plaintiff's motion for a new trial. The plaintiff filed a timely notice of appeal on February 25, 2000. A. 244-45. B. Statement of Facts John Townsend worked for Kemper National Insurance Companies<3> for eleven years and was the only black manager in the company's Personal Lines Group. A. 251. On January 22, 1997, Townsend's supervisor, Bob Priest, sent him a memorandum listing deficiencies in his performance. A. 47. According to Priest, Townsend failed to meet several of his principle objectives in his job as unit manager. Id. Two weeks later Priest demoted Townsend. Id. There was evidence that, around the same time, Priest stated to a third party about Julie Brown, a black woman who was a Kemper secretary, "What is it with these black people? They don't seem to want to work." A. 49, n.3. Barbara Maddux, the operations manager in the Kemper office, testified that in mid-1997, Priest told her that Peter Mooney, a Kemper executive vice president, did not like Townsend and wanted Priest to fire him. A. 49 n.3. Priest retired on August 31, 1997. A. 49. In September 1997, Maureen O'Connor, Townsend's second-level supervisor, told Barbara Maddux that she was instructed to "take John Townsend out of the budget" because Mooney did not like him and she was told "to get rid to him." Id. On September 11, O'Connor asked to meet with Townsend without his immediate supervisor, Linda Tobias, present. A. 48. During that meeting, O'Connor criticized Townsend's performance, gave him the lowest rating possible under defendant's rating system, and instructed him to develop an action plan by October 30, 1997, which identified strategies for improving performance. Id. Soon after the meeting with O'Connor, Townsend drafted an action plan and submitted it to Tobias for comments. Tobias advised Townsend that the proposal was satisfactory. Id. On October 8, 1997, approximately three weeks before it was due, O'Connor asked for the action plan, and Townsend gave her the proposal approved by Tobias. A. 48-49, 563. O'Connor told Townsend that the plan was inadequate, but, according to Townsend, refused to explain either how it was deficient or how it could be improved. A. 49. O'Connor testified that she decided to terminate Townsend no earlier than October 29. A. 48, 564. Townsend was terminated on November 3, 1997. A. 49. C. District Court Decisions On September 16, 1999, the district court denied Kemper's motion for summary judgment on Townsend's claims alleging that his demotion and termination were based on race in violation of Title VII and 42 U.S.C. § 1981. A. 45. The court concluded that there was sufficient evidence to establish a prima facie case of race discrimination with respect to both the demotion and the termination, rejecting Kemper's contention that Townsend failed to demonstrate that he was qualified for the job because he was not performing satisfactorily at the time of the challenged decisions. A. 52-55. The court held that Kemper's evidence that it decided to demote and discharge Townsend because of unsatisfactory job performance sufficed to meet its burden of articulating a nondiscriminatory explanation for the challenged employment actions. A. 55. Finally, the court held that there was sufficient evidence to support a finding that Kemper's explanation was a pretext for discrimination. A. 58-59. In reaching this conclusion with respect to the demotion, the court cited the close temporal proximity between plaintiff's performance bonus and his demotion, the racial animus reflected in statements made by the demoting official and evidence that, around the time of the demotion, the demoting official was instructed by the executive vice-president to "get rid of" Townsend. A. 57. With respect to the discharge claim, the court noted the contradiction between the terminating official's statement that she decided to terminate Townsend on October 30 because he failed to submit an acceptable action plan and the testimony by another company official that the executive vice-president had instructed Townsend's supervisor to fire him in September 1997, because the vice-president disliked Townsend. A. 58. When the case was submitted to the jury, the district court gave them a general instruction that the plaintiff could prevail on his demotion and discharge claims only if he proved that "[his] race [was] a motivating factor" in the decisions. A. 136-37. The court added two specific instructions setting forth Kemper's theory of the case - that proof that "plaintiff is an African-American and was treated less favorably than certain white employees . . . is not sufficient, in and of itself, to establish plaintiff's claim" and that the jury should not second-guess defendant's "business judgment." A. 136-138. However, the court refused to give the following instruction requested by the plaintiff: "You may find that plaintiff's race was a motivating factor in defendant's decision to demote or discharge plaintiff if it has been proved by the preponderance of the evidence that defendant's stated reasons(s) for its decisions are not the true reasons, but are a 'pretext' to hide discriminatory motivation." A. 74. The jury returned a verdict for the defendant on all claims. A. 11. The plaintiff moved for a new trial, arguing, inter alia, that the court's failure to instruct the jury that it could infer discriminatory intent from a showing that the defendant's stated reasons were not true was prejudicial error. A. 156. In denying the motion, the court indicated that the proposed instruction was an accurate statement of the law, but expressed the view that it was unnecessary and potentially confusing. A. 238. The court relied heavily on the reasoning in Calhoun v. Ball, Corp., 1997 WL 292129 (10th Cir. June 3, 1997), an unpublished decision of this Court, which rejects a similar argument. A. 237. The district court found "extremely persuasive" the reasoning that because the burden shifting analysis "drops out of consideration when the case is submitted to the jury on the merits," the instructions should focus on only the ultimate issue to be decided - "whether plaintiff has proven that the defendant intentionally discriminated against him because of his race." A. 237-38. Consequently, the court concluded, the jury instructions given in this case, which omitted any reference to the issue of pretext, "correctly stated the law governing plaintiff's claims." A. 238. STANDARD OF REVIEW This Court reviews jury instructions de novo to determine whether, as a whole, they state the governing law and provide the jury with a proper understanding of the issues. Richardson v. Missouri Pacific RR, Co., 186 F.3d 1273, 1279 (10th Cir. 1999); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999). The reviewing court determines whether the instructions in their entirety mislead the jury in any way. Gardetto v. Mason, 100 F.3d 803, 816 (10th Cir. 1996). Thus, "[w]here a jury instruction is legally erroneous, [the Court] must reverse if the jury might have based its verdict on the erroneously given instruction." City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th Cir. 1996). A district court's decision on whether to give a particular jury instruction is reviewed for abuse of discretion. Coletti v. Cudd Pressure Control, 165 F.3d 767, 771 (10th Cir. 1999). SUMMARY OF ARGUMENT It is well settled that a Title VII plaintiff may establish that an employer intentionally discriminated on the basis of race without affirmative evidence of a discriminatory motive. This principle is vital to the enforcement of Title VII because plaintiffs rarely have access to direct evidence of an employer's unlawful motivations. The plaintiff in this action sought to prove his claims of race 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 race was a motivating factor in the challenged employment actions. Since the jury charge permitted the jury to find for the defendant because the plaintiff did not provide affirmative proof that race motivated those decisions, 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. John Townsend alleges in this action that Kemper demoted and discharged him because of his race.<4> Although he produced some evidence that the official who demoted him was racially biased, Townsend relied primarily on evidence that Kemper's articulated reasons for demoting and ultimately terminating him are 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 Supreme 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 Teamsters v. U.S., 431 U.S. 324 (1974)), this inference is available if he can show that any additional reasons articulated by the defendant are not the true reasons for the decision. See Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097, 2101 (2000) ("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"). As the district court recognized in its decision denying defendant's motion for summary judgment, the evidence in this case is sufficient to establish a prima facie case and to support a finding that Kemper's stated reasons for its actions were not its true reasons. Accordingly, under Reeves, the jury could infer, without affirmative proof, that the decisions were based on Townsend's race. Nonetheless, the district court refused to give the jury an instruction to that effect. This was error. Febres v. Challenger Carribean Corp., 214 F.3d 57 (1st Cir. 2000) (a party 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). In explaining its decision, the district court acknowledged that the requested instruction was an accurate statement of the law. A. 237. The court stated that it declined to give it because it was unnecessary since the general instruction given by the court - that plaintiff can prevail only if he proved that his race was a motivating factor in the challenged decisions - is a correct statement of the law and "appropriately focused on the ultimate issue" in the case. A. 238. We disagree. By failing to explain to the jury that it was permitted to infer that Kemper acted on the basis of race if it found that Kemper's stated reasons for demoting and firing Townsend were false, the court created a real risk that the jury would reject Townsend's claim because it erroneously believed that he was required to prove affirmatively that race motivated those decisions. 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.<5> 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 race "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 a number of 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 lower courts 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., 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)); 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"); 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 Townsend asked the district court to explain to the jury. Towsend was entitled to this instruction on a vital aspect of his case. The district court also indicated that plaintiff's proposed instruction "concerning the issue of pretext" was inappropriate because "'the McDonnell Douglas burden shifting analysis' . . . drops out of consideration when the case is submitted to the jury on the merits." A. 237. (quoting Calhoun, 1997 WL 292129 at *1). Other courts which have rejected plaintiffs' requests for similar instructions have warned that instructions on the elements of a prima facie case and the shifting burden of proof can be confusing. See Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992); Hennessy v. Penril DataComm Networks, Inc., 69 F.3d 1334, 1350 (7th Cir. 1995). (where a prima facie case is established and the defendant has articulated a nondiscriminatory explanation, "the only question the jury need answer . . . is whether the plaintiff is a victim of intentional discrimination").<6> The district court's concern is unfounded. Townsend's proposed instruction does not contain a description of "the McDonnell Douglas burden shifting analysis" or the elements of a prima facie case, nor is any such instruction required to make the point plaintiff proposes. 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, there is no need for an instruction on the elements of the prima facie case. This is so because the only disputed element of the prima facie case here was the "qualified" element. But, as the district court noted in its order denying summary judgment, defendant's argument that plaintiff was not qualified is based on the same evidence of supposedly inadequate performance that constitutes defendant's non-discriminatory explanation. Accordingly, 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. This case is not unusual in this regard. 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. The instruction proposed by Townsend sets forth the factual issue largely divorced from legalistic jargon: "You may find that plaintiff's race was a motivating factor in defendant's decision to demote or discharge plaintiff if it has been proved by the preponderance of the evidence that defendant's stated reasons(s) for its decisions are not the true reasons, but are a 'pretext' to hide discriminatory motivation." A. 74. Although looking with disfavor upon a jury charge including language such as "prima facie case" and "shifting burdens of production," this Court has approved such pretext instructions in jury charges.<7> See Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) (illegal discrimination may be proven either directly or "inferentially by showing that the proffered reason is a pretext for discrimination"); Messina v. Kroblin Transp. Sys., 903 F.2d 1306, 1308-09 (10th Cir. 1990) (same). Moreover, the 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 race was a motivating factor in the challenged employment actions. Therefore, the district court erred by refusing to instruct the jury on the important point that, by means of a negative inference from the falsity of the employer's explanation, this plaintiff could prove discriminatory motive without affirmative evidence that his race was a factor in the defendant's decision to demote and fire him. CONCLUSION For the foregoing reasons, the Commission asks this Court to reverse the district court's decision and remand the case 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 July 28, 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 JOHN H. TOWNSEND, III Scott A. McCreight, Esq. Steven M. Sprenger, Esq. Korey A. Kaul, Esq. SPRENGER & McCREIGHT 3100 Broadway, Suite 1210 Kansas City, MO 64111 COUNSEL FOR DEFENDANT-APPELLEE LUMBERMENS MUTUAL CASUALTY COMPANY, d/b/a KEMPER NATIONAL INSURANCE COMPANIES Paul R. Garry, Esq. Michael I. Leonard, Esq. MECKLER BULGER & TILSON 8300 Sears Tower 233 South Wacker Drive Chicago, IL 60606 __________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Suite 7020 Washington, D.C. 20507 July 28, 2000 1 The Commission takes no position on any other issues raised in this appeal. 2 "A." refers to Appellant Townsend's appendix. 3 The defendant is formally known as Lumbermens Mutual Casualty Company, but does business under the Kemper name. Since the record consistently refers to the defendant as Kemper, we use that name in our brief. 4 The issue of Kemper's liability under Title VII overlaps with its liability under § 1981. See, Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997) (where disparate treatment claims under Title VII and § 1981 are based on the same facts, "the elements of each cause of action have been construed as identical, and a jury verdict on the issue of liability . . . under § 1981 is normally conclusive on the issue of liability in a parallel action under Title VII") (citation omitted). For the sake of brevity, we refer only to Title VII in our discussion of the jury instruction, but the argument applies equally to Townsend's claim under § 1981. 5 As the district court noted, an unpublished decision of this Court approves the general instruction the district court gave. A. 347 (citing Calhoun v. Ball Corp., No. 95-1272, 1997 WL 292129 (10th Cir. June 3, 1997). However, unpublished decisions do not have precedential value, and the reasoning of Calhoun is wrong for the reasons stated in the text. 6 This Court has also indicated that it looks with disfavor on jury instructions that include language such as "prima facie case" and "shifting burden of production," because instructions on the subtleties of the McDonnell-Douglas framework can be confusing for juries. See Messina v. Kroblin Transp. Sys. Inc., 903 F.2d 1306, 1308 (10th Cir. 1990) (cautions against language such as "prima facie case" and "shifting burden of production" due to potential jury confusion). For the reasons discussed in the text, this concern does not implicate the proposed instruction in this case. 7 The Court's affirmation as to the appropriateness of a pretext instruction is not tainted by the fact that both of these decisions embrace the "pretext plus" approaches rejected by the Supreme Court in Hicks and Reeves.