No. 03-13754-HH ________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ CARL N. DIJOSEPH et al., Plaintiffs-Appellants, v. INVIVO RESEARCH, INC., Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Orlando Division The Honorable John Antoon II Presiding Civil No. 99-01450-CV-ORL-28JGG __________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiffs-Appellants Seeking Reversal of Denial of Plaintiffs'-Appellants' Motion for New Trial __________________________________________________ ERIC S. DREIBAND General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney DiJoseph et al. v. Invivo Research, Inc. C-1 of 2 No. 03-13754-HH CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Amicus Curiae U.S. Equal Employment Opportunity Commission submits this list, pursuant to 11th Cir. Rule 26.1-1, which includes trial judges, attorneys, persons, association of persons, firms, partnerships and corporations who are known to have an interest in the outcome of this appeal: Bolin, Alenna K. (Counsel for Plaintiffs-Appellants) Allen, Norton & Blue, P.A. (Counsel for Defendant-Appellee) Antoon II, Hon. John (U.S. District Court Judge in Proceeding Below) Bogin, Munns & Munns, PA. (Counsel for Plaintiffs-Appellants) Briscoe, John (Plaintiff-Appellant) Brodersen, Daniel N. (Counsel for Plaintiffs-Appellants) Brykalski, Scott G. (Plaintiff-Appellant) DiJoseph, Carl N. (Plaintiff-Appellant) Gekas & Associates, Ltd. (Counsel for Plaintiffs-Appellants) Gekas, Constantine John (Counsel for Plaintiffs-Appellants) Glazebrook, Hon. James G. (U.S. Magistrate Judge in Proceeding Below) Helsby, Wayne L. (Counsel for Defendant-Appellee) Invivo Corporation (Parent Corporation of Defendant-Appellee) Invivo Research, Inc. (Defendant-Appellee) Losier, Bruce A. (Plaintiff-Appellant) DiJoseph et al. v. Invivo Research, Inc. C-2 of 2 No. 03-13754-HH Norton, Robert L. (Counsel for Defendant-Appellee) Tracy, Jr., Lawrence E. (Original Plaintiff Now Deceased) Tracy, Susan (Successor to Lawrence E. Tracy, Jr., Individually and on Behalf of Her Three Minor Children) Tracy, John (Minor Child of Original Plaintiff Lawrence E. Tracy, Jr.) Tracy, Emily (Minor Child of Original Plaintiff Lawrence E. Tracy, Jr.) Tracy, Mark (Minor Child of Original Plaintiff Lawrence E. Tracy, Jr.) Van Valkenburgh, Mark L. (Counsel for Defendant-Appellee) _____________________________ DANIEL T. VAIL \ TABLE OF CONTENTS Certificate of Interested Persons and Corporate Disclosure StatementC-1 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . .i Table of Citations . . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 A. Background . . . . . . . . . . . . . . . . . . . . . .2 B. Trial Evidence . . . . . . . . . . . . . . . . . . . .4 C. Jury Instructions. . . . . . . . . . . . . . . . . . .7 Standard of Review . . . . . . . . . . . . . . . . . . . . . . 10 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 11 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Certificate of Compliance. . . . . . . . . . . . . . . . . . . 25 Certificate of Service . . . . . . . . . . . . . . . . . . . . 26 TABLE OF CITATIONS Cases Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996). . . . . . . . . . . . 10 * Cabrera v. Jakabovitz, 24 F.3d 372 (2nd Cir. 1994). . . . . . . . . . . . . 15 * Carter v. DecisionOne Corp., 122 F.3d 997 (11th Cir. 1997). . . . . . . . . . . . 10 Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) . . . . . . . . . . . 12 Christopher v. Cutter Labs., 53 F.3d 1184 (11th Cir. 1995). . . . . . . . . . . . 10 Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997) . . . . . . . . . . . 16 Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . . 22 Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir. 1999) . . . . . . . . . . . 19 Fisher v. Vassar College, 114 F.3d 1332 (2nd Cir. 1997). . . . . . . . . . . . 14 Fite v. Digital Equipment Corp., 232 F.3d 3 (1st Cir. 2000) . . . . . . . . . . . . . 23 Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994). . . . . . . . . . . . . 23 Cases (con't) Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413 (4th Cir. 1998) . . . . . . . . . . . . 14 Goulah v. Ford Motor Co., 118 F.3d 1478 (11th Cir. 1997) . . . . . . . . . . . 11 Jennings v. BIC Corp., 181 F.3d 1250 (11th Cir. 1999) . . . . . . . . . . . 10 Johnson v. Bryant, 671 F.2d 1276 (11th Cir. 1982) . . . . . . . . . . . 10 Kozlowski v. Hampton Sch. Bd., No. 02-1485, 2003 WL 22273073 (4th Cir. Oct. 3, 2003)21, 22 McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973). . . . . . . . . . . . . . . .3, 12 Moore v. Robertson Fire Protection Dist., 249 F.3d 786 (8th Cir. 2001) . . . . . . . . . . . . 23 * Palmer v. Bd. of Regents of the Univ. System of Ga., 208 F.3d 969 (11th Cir. 2000). . 13, 15, 16, 17, 18, 19 * Rand v. Nat'l Fin. Ins. Co., 304 F.3d 1049 (11th Cir. 2002) . . . . . . . . . . . 11 * Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir. 2001) . . . . . . . . . . . . 20 * Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . .12-13, 14 Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996). . . . . . . . . . . . . 14 Cases (con't) * Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283 (11th Cir. 1998) . . . . . . . . . . . 11 * Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3rd Cir. 1998) . . . . . . . . 14, 15, 16 * St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . . . . . . . 13 * Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232 (10th Cir. 2002) . . . . . . . . . 20, 21 U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . 13 Wilkinson v. Carnival Cruise Lines, 920 F.2d 1560 (11th Cir. 1991) . . . . . . . . . . . 10 Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir. 1994). . . . . . . . . . . . . 14 Statutes Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq.. . . . . . . . . . . . . . . . . .1 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . .1 4th Cir. R. 36(c). . . . . . . . . . . . . . . . . . . . . . . 21 11th Cir. R. 36-2. . . . . . . . . . . . . . . . . . . . . . . 21 Miscellaneous Eleventh Circuit Pattern Jury Instructions, Civil Cases (1999)7-8 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission ("EEOC" or "the Commission") is charged by Congress with interpreting and enforcing the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621 et seq. This appeal involves an ADEA opt-in class action in which several former employees ("Plaintiffs") of Invivo Research, Inc. ("Defendant" or "Invivo") allege that Invivo discharged or demoted them because they were over forty years of age. At trial, Plaintiffs relied on the McDonnell Douglas circumstantial evidentiary framework to prove these age discrimination claims. At the close of the evidence, the district court rejected Plaintiffs' request for a critical "pretext" jury instruction. That is, the district court refused to inform the jury that it could infer that Defendant committed age discrimination if the jury did not believe the reasons Defendant gave for discharging or demoting Plaintiffs. Because the district court failed to include this crucial pretext inference charge, we believe the final instructions given misstated the applicable law, tainted the jury's deliberations, and effectively precluded Plaintiffs from proving their case under McDonnell Douglas. Given the importance of this issue to effective ADEA enforcement efforts, we offer our views to the Court under Fed. R. App. P. 29(a). The EEOC takes no position on any other issue raised in this appeal. STATEMENT OF THE ISSUE Whether the district court committed reversible error by refusing to instruct the jury that it could infer that Defendant acted for a discriminatory reason if it found that Defendant's stated reasons for the challenged employment actions were not its true reasons. STATEMENT OF THE CASE A. Background Invivo is a corporation that manufactures and sells medical equipment. R.178 at 2. In early 1996, Roger Susi, the founder of Invivo, and James Hawkins, the president and CEO of Invivo's parent company, were unhappy with the company's declining sales and its sales force's performance. Id. at 2-3; R.243 at 25, 32-33, 35. Susi and Hawkins thus decided to hire two new sales and marketing executives to help improve Invivo's sales operations. R.178 at 3; R.243 at 42-44. They also hoped to get these new executives on board in preparation for the launch of the company's newest product its "Millennia" vital signs monitor. R.178 at 3. In the spring of 1996, therefore, Susi and Hawkins hired Stuart Baumgarten as executive vice-president of worldwide sales and marketing, and Brent Johnson as director of domestic sales. R.178 at 3. Defendant's sales force consisted of regional sales managers ("RSMs") and sales representatives ("SRs"). Id. When Baumgarten and Johnson arrived at Invivo, Plaintiffs worked there as RSMs or SRs. Id. at 3-4. Over the next year, however, Baumgarten and Johnson discharged or demoted all of them. Id. at 4. On November 12, 1999, Plaintiffs filed this action alleging that Invivo discharged or demoted older sales managers and sales representatives because of their age. R.1. On April 23, 2003, the district court denied Invivo's motion for summary judgment. The court held that evidence that Invivo officials made "comments regarding the types of candidates Baumgarten and Johnson sought to hire" did not constitute direct evidence that the decisions relating to the Plaintiffs were discriminatory. R.178 at 12. However, the court held that there was sufficient evidence to support a finding of discrimination under the indirect method of proving discrimination set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The court first noted that Invivo, in moving for summary judgment, did not challenge the sufficiency of the evidence to support a prima facie case of age discrimination with respect to each of the Plaintiffs. R.178 at 14. According to the court, Invivo articulated "two related legitimate nondiscriminatory reasons for the decisions to terminate or demote the Plaintiffs: 1) that they were "part of the old, 'pre-Baumgarten' sales force" which was viewed negatively by the new managers; and 2) that Invivo had "performance-based reasons specific to each of [the Plaintiffs]." Id. at 14-15. However, the court denied summary judgment because it concluded that "Plaintiffs have met their burden of presenting evidence raising genuine issues of material fact as to pretext." Id. at 15. B. Trial Evidence At trial, Invivo witnesses defended discharging or demoting Plaintiffs on the grounds that Plaintiffs were sub-par employees who had negative attitudes, missed critical sales targets, and/or failed to effectively mobilize and motivate a successful sales force. R.246 at 96; R.247 at 158, 162-63; R.237 at 237; R.242 at 103-04, 115-16, 120-21, 124-126. As proof of Plaintiffs' failings, Defendant pointed to a February 1996 memorandum in which Hawkins criticized the sales force's alleged laziness, excuse-making, and lack of results. R.237 at 197, 200; R.240 at 97-98; R.243 at 40-41. Invivo officials cited Plaintiffs' alleged inability to sell the Millennia monitor, specifically, as a prime example of Plaintiffs' performance problems. This was the primary reason Defendant gave for the adverse employment actions management ultimately took against Plaintiffs. R.247 at 162; R.242 at 115-16, 121, 124-26. Plaintiffs offered evidence that Baumgarten and Johnson had expressed an unmistakable interest in securing a younger sales force. R.247 at 71; R.251 at 172. These two Invivo executives made repeated negative comments about older members of the sales force overheard by non-Plaintiffs and stressed the need to recruit younger sales employees, stating, e.g., that "sales is a young man's job," that the older members of the sales force carried "old baggage," and that Invivo needed more "young people" that they "could mold" and that were not "set in their way." R.247 at 154; R.248 at 6-8; R.252 at 60-61, 84. Baumgarten and Johnson instructed RSMs to hire only relatively inexperienced people with "high energy," which, according to Plaintiffs, Baumgarten and Johnson used as a code phrase for "younger." R.247 at 64, 69, 72, 80; R.237 at 235; R.252 at 63; R.251 at 172, 174, 176. In interviews, which Johnson himself often conducted, Johnson insisted on asking each candidate his or her high school graduation date (in an effort, in Plaintiffs' view, to ascertain the applicant's age). Johnson would sometimes even write this date on interviewees resumes. R.247 at 65, 73-78, 81, 156-57; R.252 at 63-64; R.240 at 116; R.251 at 174; R.242 at 135-38. Plaintiffs' witnesses further testified that after interviewing particular candidates, Johnson sometimes would declare that the candidate was "too old" to be seriously considered. R.247 at 81. Moreover, Plaintiffs' trial evidence also suggested that in the first few months after Baumgarten and Johnson arrived, the sales force had been dramatically reshaped through the elimination of older workers and the addition of comparatively younger ones. R.247 at 105. Plaintiffs also proffered evidence that Invivo's reasons for demoting or discharging them were simply not credible. Plaintiffs refuted the contention that their performance had been problematic. Their witnesses testified at trial that in the years preceding Plaintiffs' demotions or discharges, their sales results had actually been stellar. See R.247 at 27, 31, 49; R.249 at 11, 45, 49; R.252 at 54; R.251 at 150. Indeed, Plaintiffs pointed out, in October 1995 only a few months before the February 1996 Hawkins memorandum criticizing Plaintiffs' sales efforts Susi had given all RSMs a $20,000 performance-based raise. R.247 at 32, 50; R.252 at 71; R.251 at 150. Plaintiffs introduced other letters of praise and thanks Hawkins himself had sent to Plaintiffs, commending their superior sales successes. R.247 at 29-30. Plaintiffs also testified about numerous other accolades they received over the years from Invivo management for outstanding performance. R.249 at 37-42, 45; R.252 at 54-55; R.251 at 150. Plaintiffs further explained that Invivo's declining sales stemmed not from their inferior efforts, but from increased competition and waning client demand for older Invivo products. R.247 at 33-34, 38-40; R.249 at 19; R.252 at 52; R.251 at 152-53. Plaintiffs testified that Invivo executives knew about these market challenges, but for years ignored Plaintiffs' pleas for increased Invivo innovation. R.247 at 37-40, 44-45; R.252 at 53-54; R.251 at 154-55, 157; R.241 at 3. Plaintiffs also contended that once Invivo finally did bring a new product Millennia to market, it was defective (e.g., the monitor would frequently "freeze" up or go blank during sales demonstrations, give off "false alarms" during patient clinical trials, etc.), and they thus simply could not convince a sufficient number of customers to buy it. R.247 at 115-21, 123, 152-53; R.237 at 182, 240; R.249 at 30, 35, 44, 49, 69; R.250 at 30; R.252 at 66-67, 76-80; R.251 at 193. Plaintiffs testified that Baumgarten and Johnson were well aware of the Millennia's many troubles, but demanded that Plaintiffs "sell around" (i.e., excuse-away) its shortcomings. R.247 at 121-23; R.238 at 121-22. C. Jury Instructions At the close of all the evidence, the district court proposed to explain the elements of an ADEA claim to the jury using the Eleventh Circuit pattern instruction on this issue. See R.210; see also Eleventh Circuit Pattern Jury Instructions, Civil Cases (1999), Federal Claims Instruction No. 1.4.1. This pattern instruction, adapted to fit the facts of this case, provided in part that: Each Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff was within the protected age group, that is, being at least 40 years of age; Second: That the Plaintiff was employed by the Defendant and was subsequently demoted or terminated by the Defendant; and Third: That Plaintiff's age was a substantial or motivating factor that prompted the Defendant to take that action. R.210 at 8-9. In their proposed instructions submitted before trial, and again during the charge conference at trial, Plaintiffs asked the court to add the following instruction: You are entitled to infer, but need not infer, that discrimination was a substantial or motivating factor in the Defendant's decision if the Plaintiff proves by the preponderance of the evidence that Defendant's stated reason for its decision is not the true reason, but is a "pretext" to hide discriminatory motivation. The word "pretext" as used in these instructions means a false or weak reason provided to hide the real reason or motive. R.196 at 2. The district court refused to give Plaintiffs' proposed instruction, or any guidance on the principle that discrimination may be inferred from proof that an employer's stated reason is false. In doing so, the district court reasoned: [I]t doesn't seem to me that it's appropriate to complicate the work of the jury by getting into burden shifting and the court believes that the pattern instructions are sufficient, so with regard to the request for an instruction on pretext, the motion is denied . . . . R.253 at 87. The district court then submitted the case to the jury using the Eleventh Circuit pattern jury instructions on ADEA elements, which included the following caveat cautioning jurors not to second guess Invivo's "business judgment": You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's age. So far as you are concerned in this case, an employer may terminate, demote, refuse to promote or otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances . . . . R.210 at 9. After an eight-day trial, the jury returned a verdict for Defendant on all claims. R.212. Plaintiffs then moved under Rule 59 for a new trial. R.217. In this motion, Plaintiffs argued that the district court's failure to give their requested pretext instruction was reversible error. Plaintiffs pointed out that: The absence of the pretext instruction essentially cut the heart from the instruction to the jury in what was in the final analysis a classic pretext case. This was especially prejudicial since the instructions stressed that the jury could not question Invivo's business judgment and that Invivo could act adversely against plaintiffs for any other reason, good or bad, fair or unfair. Thus, the business judgment instruction without the explanatory pretext instruction essentially required the jury to conclude that even if Invivo's proffered reasons were false and unworthy of credence, they were irrelevant to age discrimination . . . . R.217 at 4-5. In a summary order dated June 25, 2003, the district court denied Plaintiffs' Rule 59 motion for a new trial. R.224. Plaintiffs promptly appealed this order (and the original June 2, 2003 judgment entered against them). R.226. STANDARD OF REVIEW This Court "examines jury instructions as a whole to determine whether they fairly and adequately addressed the issue and correctly stated the law." Jennings v. BIC Corp., 181 F.3d 1250, 1259 (11th Cir. 1999) (quoting Christopher v. Cutter Labs., 53 F.3d 1184, 1190 (11th Cir. 1995)). Under this standard, the Court is concerned with "whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled." Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir. 1996) (quoting Wilkinson v. Carnival Cruise Lines, 920 F.2d 1560, 1569 (11th Cir. 1991)). Accordingly, this Court will reverse if it is "left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations" by the trial court's instructions. Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir. 1982)). More specifically, the Court will find reversible error in the refusal to give a requested instruction if (1) the requested instruction is a correct statement of the law; (2) the requested instruction dealt with an issue properly before the jury; and (3) the failure to give the requested instruction resulted in prejudicial harm to the requesting party. Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir. 1998) (citing Goulah v. Ford Motor Co., 118 F.3d 1478, 1485 (11th Cir. 1997)); cf. Rand v. Nat'l Fin. Ins. Co., 304 F.3d 1049, 1052 (11th Cir. 2002) (noting that the Eleventh Circuit reviews jury instructions de novo "to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party"). SUMMARY OF ARGUMENT The district court committed reversible error in declining to instruct the jury that it was permitted to infer a discriminatory motive if it disbelieved Defendant's explanation for discharging or demoting the Plaintiffs. Plaintiffs relied primarily on the McDonnell Douglas circumstantial method of proof to establish that the adverse actions taken against them were motivated by age. Under this framework, a jury can infer intentional discrimination if the plaintiff creates a prima facie case of discrimination and proves that the benign reasons given by a defendant are pretextual. The permissibility of this inference is neither intuitive nor obvious, however. Indeed, over the years numerous circuit courts of appeals struggled with just this question (i.e., whether a plaintiff can prevail with proof of "pretext" alone) until the Supreme Court itself ultimately resolved the issue. Thus, 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 Plaintiffs' method for proving discrimination and is not intuitively obvious, the omission of this instruction constitutes reversible error. Plaintiffs are therefore entitled to a new trial on this ground. 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. Plaintiffs relied primarily on the familiar McDonnell Douglas circumstantial evidentiary framework to establish that they were discharged or demoted because of their age. See McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973); see also Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (noting that "[t]his Court . . . uses the framework established in [McDonnell Douglas] to evaluate ADEA claims that are based upon circumstantial evidence of discrimination"). It is well-settled under this framework that an ADEA plaintiff does not need affirmative proof of discriminatory motive to establish that an employer intentionally committed age discrimination. As a unanimous Supreme Court clarified 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) (stating that a fact finder's "disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination"). 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 v. Board of Regents of the University System of Georgia, 208 F.3d 969, 974 (11th Cir. 2000) (a "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). See, e.g., Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416 (4th Cir. 1998); Fisher v. Vassar College, 114 F.3d 1332, 1338-39 (2nd Cir. 1997) (en banc); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc); Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994). In fact, the Supreme Court granted certiorari in Reeves to clear up judicial confusion over just this issue. See Reeves, 530 U.S. at 140-41 (explaining that the Court was attempting to resolve conflict among the circuits "as to whether a plaintiff's prima facie case of discrimination . . . combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination"). In light of this confusion in the courts, 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 v. Borough of Wilkinsburg, 147 F.3d 272, 281 (3rd Cir. 1998) (new trial granted because court failed to instruct jury on "pretext"). Because the Plaintiffs presented enough evidence to establish a prima facie case and to support a finding that Defendant's stated reasons for the adverse actions were not its true reasons, they were entitled to an instruction that the jury could infer a discriminatory motive if it disbelieved the company's explanation. 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 (2nd Cir. 1994)). In Cabrera, a Title VIII housing discrimination case, the Second Circuit ruled that: The jury needs to be told two things: (1) it is the plaintiff's burden to persuade the jurors by a preponderance of the evidence that the apartment (or job) was denied because of race (or, in other cases, because of some other legally invalid reason) . . . and (2) the jury is entitled to infer, but need not infer, that this burden has been met if they find that the [facts making up the plaintiff's prima facie case] have been established and they disbelieve the defendant's explanation . . . . 24 F.3d at 382 (internal citations and footnotes omitted). The Third Circuit agreed in Smith. In that ADEA action (with a procedural history strikingly similar to the case at hand), the Third Circuit explained that: In light of the decades it has taken for the courts to shape and refine the McDonnell Douglas standard into its present form and the inordinate amount of ink that has been spilled over the question of 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 . . . . Without a charge on pretext, the course of the jury's deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferences of discrimination may be drawn from the evidence establishing plaintiff's prima facie case and the pretextual nature of the employer's proffered reasons for its actions. It does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing that inference. Smith, 147 F.3d at 280-81. Therefore, the Smith court, citing Cabrera, declared: We join the Second Circuit in holding that the 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. Id. at 280. The Third Circuit in Smith then vacated the jury's verdict for the defendant and remanded the case to the district court for a new trial. Id. at 281. The Eleventh Circuit was not one of the "pretext-plus" jurisdictions pre- Reeves. See Combs v. Plantation Patterns, 106 F.3d 1519, 1530-32 (11th Cir. 1997) (reviewing this Circuit's earlier case law concluding that "once a plaintiff has established a prima facie case and has put on sufficient evidence to allow a factfinder to disbelieve an employer's proffered explanation for its actions, that alone is enough to preclude entry of judgment as a matter of law"). Perhaps not surprisingly then, this Court in Palmer a pre-Reeves decision explicitly emphasized the need for a proper pretext instruction. In Palmer, a Title VII case, plaintiff Judy Palmer alleged that the Board of Regents of the University System of Georgia had discriminated against her on the basis of her religion by failing to choose her as a permanent faculty member at Kennesaw State University. Palmer, 208 F.3d at 971. After the close of the evidence, the presiding judge instructed the jury in significant contrast to the instructions given in this case that: One way the plaintiff may show intentional discrimination is by showing that the Board of Regents' stated reasons for actions it took were not true, and instead were pretext or cover, hiding an underlying intent to discriminate. If you do not believe the non-discriminatory reason put forth by the Board of Regents, your disbelief of these reasons does not mean that you must find for the plaintiff. This is because the Board of Regents' reasons cannot be proved to be pretext, or cover, for intentional discrimination unless you find both that the reasons are not true and also that religious discrimination was a real reason for the board of Regents' decision. R5-595-599, Palmer, Civ. No. 96-01459-1-JRS (N.D. Ga.). Palmer argued that this jury charge should have been supplemented to state explicitly that a plaintiff need not introduce additional evidence of discrimination beyond proof of a prima facie case and pretext to prevail. The district court refused this request, however, and the jury ultimately returned a verdict for the defendant. On appeal, this Court upheld the jury verdict, concluding that no such clarifying language was required. It apparently reached this conclusion because the Court believed the original instruction adequately described governing law and conveyed the pretext inference principle. Palmer, 208 F.3d at 975. However, the Palmer court did underscore the importance of giving at least a general pretext instruction. In reaching this conclusion, the Palmer court relied heavily on the reasoning of the Second and Third Circuits in Cabrera and Smith. It is difficult to know whether the district court in this case disregarded, or simply misunderstood, this Palmer directive. The court gave scant reasoning for its refusal to grant Plaintiffs' request for a pretext instruction, and never explicitly acknowledged Palmer either at the charge conference or in denying Plaintiffs' motion for a new trial. However, in its opposition to Plaintiffs' motion for a new trial, Invivo argued that the Palmer panel "held that a pretext instruction is not necessary." R.221 at 1. During the charge conference, the district court noted that it had "read other cases including one from the Eleventh Circuit that is post Reeves" in concluding that no pretext instruction was necessary. R.253 at 87. The court never identified these "post- Reeves" cases and we have not uncovered any such Eleventh Circuit decision on this issue. If the court, like the defendant, relied on and read Palmer (albeit a pre-Reeves case) as not requiring a pretext instruction it was mistaken. The dispute on appeal in Palmer 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." Thus, the Palmer panel's approval of the district court's instructions reflected its view that the instruction as written would not mislead a jury into believing that additional evidence beyond proof of pretext was required for a plaintiff to prevail. On the question presented in this case, however, it is clear that this Court in Palmer unambiguously required trial judges to provide juries some sort of pretext instruction. See Palmer, 208 F.3d at 974 (internal quotations and citations omitted) (directing that "the jury needs to be told" about the permissible inference that can be drawn from a plaintiff's proof of pretext). Post-Reeves, the rationale for requiring an instruction on pretext is even clearer. The Fifth Circuit recognized this in Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir. 2001). There, citing Smith and Cabrera with approval, the Fifth Circuit remanded a plaintiff's ADEA claim for a new trial because the district court had refused to give a pretext instruction as the plaintiff had requested (and gave a "pretext-plus" instruction instead). Ratliff, 256 F.3d at 361 n.7, 364. The Fifth Circuit held 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 [such] an inference instruction . . . ." Id. at 364. The Tenth Circuit recently reached the same conclusion in Townsend v. Lumbermens Mutual Casualty Company, 294 F.3d 1232 (10th Cir. 2002). In that Title VII case, the Tenth Circuit observed that the pretext inference principle has proven to be: a difficult matter for courts, and would certainly be difficult for a jury. We consider the danger too great that a jury might make the same assumption that [pre-Reeves courts requiring "pretext-plus" did]. Therefore, we hold that in 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 [protected trait] was a motivating factor in the challenged employment decisions." Townsend, 294 F.3d at 1241 (internal citations and footnotes omitted) (emphasis added); see also id. at n.5 ("We also believe that harm arising from a jury's confusion is likely where, as here, the law the jury should have been instructed on has proven too difficult even for federal courts to discern without guidance from the Supreme Court . . . . It is unreasonable, we think, to expect that jurors, aided only by the arguments of counsel, will intuitively grasp a point of law that until recently eluded federal judges . . . .") The Townsend court found that the instructions given "did not adequately convey the law to the jury, and that as a result the jury may have been misled." Id. at 1241. "Because the jury might have based its verdict on the erroneous instructions," the Townsend court concluded, "this error requires reversal." Id. The Tenth Circuit thus reversed the district court's denial of the plaintiff's motion for a new trial and remanded the case for further proceedings. Most recently, the Fourth Circuit (albeit in an unpublished opinion) also declared its support for a mandatory pretext inference charge in certain cases. In Kozlowski v. Hampton School Board, No. 02-1485, 2003 WL 22273073 (4th Cir. Oct. 3, 2003), the Fourth Circuit reviewed relevant case law from sister circuits (discussed above), and ultimately sided with those that require some form of a pretext instruction. It reasoned that: [T]he particular inference at issue here that if the jury disbelieves the reasons given by the employer to justify its actions, then the jury may infer discrimination has in the past sparked considerable disagreement among the courts . . . . Given the amount of disagreement among judges of the federal courts of appeals over whether a jury may infer discrimination simply from their disbelief of the employer's stated justifications, it seems unlikely that jurors will uniformly intuit that such an inference is permissible. Kozlowski, 2003 WL 22273073 at **8 (internal citations omitted). The Fourth Circuit thus held that "when the evidence presented at trial creates some likelihood that the jury might disbelieve the legitimate, non-discriminatory reasons given by the employer to justify its actions, then the jury should be instructed on this permissible inference." Id. at 9. Given the nature of the evidence in Kozlowski, it concluded that the district court erred in refusing to provide some sort of plaintiff-requested pretext charge. Id. at **9. However, because the court found that the "collective weight of this and other errors" entitled the plaintiff to a new trial, it declined to determine whether the failure to give the pretext charge alone would warrant reversal. Id. at **10; cf. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 650-51 (4th Cir. 2002) (upholding a trial court's decision to give instructions that "clearly and correctly stated the law and made clear that the jury could, but did not have to, infer discrimination if it disbelieved [the defendant's] explanation for [the adverse action at issue]"). As Smith, Cabrera, Ratliff, Townsend, Kozlowski, and most importantly Palmer illustrate, the district court must instruct jurors on the pretext inference principle. The consequences of failing to do so are painfully apparent in this case, where the rejection of Plaintiffs' request for a pretext charge effectively prevented Plaintiffs from proving their case under McDonnell Douglas. Despite the plethora of pretext evidence Plaintiffs introduced at trial, the jury deliberated in ignorance, most likely unaware of the permissible inference of discrimination at its disposal. The generic pattern instructions given (providing that a plaintiff has the burden of proving discriminatory motive by a preponderance of the evidence) along with the "business judgment" caveat (not to second-guess the employer's reasons), most assuredly confused jurors into concluding they could only find age discrimination if Plaintiffs offered additional affirmative evidence of such discrimination. This is, of course, the very result Reeves, Smith, Cabrera, Ratliff, Townsend, Kozlowski, and Palmer have sought to prevent. CONCLUSION For the foregoing reasons, the district court's refusal to give Plaintiffs' pretext charge was reversible error, and Plaintiffs are entitled to a new trial on their ADEA demotion and discharge claims. Respectfully Submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 December 23, 2003 CERTIFICATE OF COMPLIANCE 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 6,152 words. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 December 23, 2003 CERTIFICATE OF SERVICE I certify that on December 23, 2003, I served copies of this brief by mailing them first-class, postage prepaid, to the following: Thomas K. Kahn, Clerk U.S. Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303 Constantine John Gekas Gekas & Associates, Ltd. Eleven South LaSalle Street, Suite 1020 Chicago, IL 60603 Attorneys for Plaintiffs-Appellants Robert L. Norton Wayne L. Helsby Mark L. Van Valkenburgh Allen, Norton & Blue, PA. 1477 West Fairbanks Avenue, Suite 100 Winter Park, FL 32789 Attorneys for Defendant-Appellee ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571