Defendant's Attorney: Marc DeSisto and Nicholas Gorham
Description: The McDonnell Douglas framework,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973),
has proven to be a useful tool in the adjudication of pretrial
motions (especially at the summary judgment stage) in
discrimination and retaliation cases. See, e.g., Burns v. Johnson,
829 F.3d 1, 8 (1st Cir. 2016) (discrimination); Henry v. United
Bank, 686 F.3d 50, 55 (1st Cir. 2012) (retaliation). Jury
instructions, however, are a different medium, and some courts
have expressed concern about the suitability of the McDonnell
Douglas framework for that purpose. See, e.g., Sharkey v. Lasmo
(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000) (expressing the view
that "[i]nstructing the jury on [the] complex process [of McDonnell
Douglas burden-shifting] produces no benefit and runs the
unnecessary risk of confusing the jury"); Loeb v. Textron, Inc.,
600 F.2d 1003, 1016 (1st Cir. 1979) (warning that reading McDonnell
Douglas's "technical aspects to a jury . . . will add little to
the juror's understanding of the case").
In our view, the McDonnell Douglas framework can, in the
trial court's discretion, be put to effective use in the shaping
of jury instructions. The key, we think, is for the trial court
to refrain from rote recitation of the complex McDonnell Douglas
process and the legalistic terms in which the McDonnell Douglas
framework is typically couched. Thus, a trial court that wishes
to use the framework as part of its jury instructions should
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translate it into everyday parlance and fit it to the facts and
circumstances of a particular case. Here, the court below did
Given the satisfactory nature of the district court's
jury instructions as a whole, we discern no merit in the
appellant's claims of error. Accordingly, we affirm the judgment
We briefly rehearse the facts and travel of the case.
Plaintiff-appellant Moira E. Teixeira toiled as a social worker
for the Town of Coventry, Rhode Island (the Town), in its
Department of Human Services. Over the course of roughly three
years, the appellant took three medical leaves, comprising nearly
eight months in aggregate leave time. Matters came to a head on
June 14, 2013: as the appellant returned from her latest leave,
she was fired. The Town represented that her dismissal was based
on poor job performance (including violations of department
protocols, breaches of confidentiality, and repeated failures to
complete work assignments).
Displeased with the Town's actions, the appellant
repaired to the federal district court and sued both the Town and
her supervisor, Patricia Shurtleff. Her complaint alleged
violations of federal and state law, including the Family and
Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2619, and the Rhode
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Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1.
Specifically, she claimed that she had been both retaliated against
for taking medical leave and discriminated against on account of
Following extensive discovery and a week-long jury
trial, the district court sent the case to the jury. With
reference to the FMLA and RICRA counts, the court instructed the
jury using an adapted version of the McDonnell Douglas framework
(over the appellant's objection). After deliberating, the jury
returned a take-nothing verdict in favor of the defendants.
The appellant moved for a new trial, lodging (inter alia)
two claims of instructional error in connection with the FMLA and
RICRA counts: she asserted that the district court had erred in
employing the McDonnell Douglas framework in its jury instruction
and that the court had erred when it instructed the jury to
consider whether the appellant had shown that the defendants'
reasons for cashiering her were pretextual. The district court
found no fault with the instructions it had given and denied the
motion for a new trial. This timely appeal ensued.
1 The appellant's complaint also contained two other counts.
Because her appeal is limited to her FMLA and RICRA claims, we
omit any discussion of the other counts.
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The appellant brought her motion for a new trial under
Federal Rule of Civil Procedure 59(a). In effect, that rule
authorizes a district court to override a jury verdict and order
a new trial "if the verdict is against the law, against the weight
of the credible evidence, or tantamount to a miscarriage of
justice." Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006).
We review a district court's denial of a motion for a new trial
for abuse of discretion. See Ira Green, Inc. v. Military Sales &
Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014). Here, the district
court's denial of the appellant's new trial motion was predicated
upon its rejection of the appellant's claims of instructional
error. A verdict that results from prejudicial error in jury
instructions is a verdict that is against the law and, therefore,
the denial of a new trial motion in the face of such an error is
an abuse of discretion. See id.
We "afford de novo review to 'questions as to whether
jury instructions capture the essence of the applicable law, while
reviewing for abuse of discretion . . . the court's choice of
phraseology.'" Id. (quoting DeCaro v. Hasbro, Inc., 580 F.3d 55,
61 (1st Cir. 2009)). Unpreserved claims of instructional error,
though, are reviewed only for plain error. See United States v.
Deppe, 509 F.3d 54, 58 (1st Cir. 2007).
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Against this backdrop, we turn to the appellant's twin
claims of instructional error. Because those claims trigger
different standards of review, we discuss them separately.
A. The McDonnell Douglas Claim.
Some general principles inform our consideration of the
appellant's primary claim. As we have explained, "[j]ury
instructions are intended to furnish a set of directions composing,
in the aggregate, the proper legal standards to be applied by lay
jurors in determining the issues that they must resolve in a
particular case." United States v. DeStefano, 59 F.3d 1, 2 (1st
Cir. 1995). So long as the court's jury instructions accomplish
this task, its "choice of language is largely a matter of
The appellant argues that the district court erred by
including the McDonnell Douglas framework in its charge to the
jury. This framework, she says, was apt to have confused the
jurors and may well have caused them to return an inadvertent
verdict. Taken in context, the appellant's plaint is not that the
district court incorrectly instructed the jury on the law but,
rather, that the court's instructions were made unduly confusing
by its allusion to the McDonnell Douglas framework. This claim of
error was seasonably raised at trial and, as a result, our review
is for abuse of discretion. See Deppe, 509 F.3d at 58.
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We need not tarry. The Supreme Court's development of
the McDonnell Douglas framework is a landmark in the realm of
discrimination law. In this landmark decision, the Court did not
restrict the use of the McDonnell Douglas framework to pretrial
motions. Since then, lower courts routinely have signaled their
approval of the use of adapted versions of the McDonnell Douglas
framework to help jurors understand their roles in determining the
merits of discrimination and retaliation cases. See, e.g.,
McDonough v. City of Quincy, 452 F.3d 8, 17 (1st Cir. 2006)
(retaliation); Rodriguez-Torres v. Carib. Forms Mfr., Inc., 399
F.3d 52, 58 (1st Cir. 2005) (discrimination). We know of no
authority categorically forbidding the use of the McDonnell
Douglas framework in the formulation of jury instructions. Nor do
we favor any such categorical prohibition.
To be sure, some courts have worried that rote recitation
of the McDonnell Douglas framework may be confusing to a jury,
see, e.g., Sharkey, 214 F.3d at 374; Loeb, 600 F.2d at 1016, and
we do not quarrel with that limited proposition.2 But in the case
2 We note that even those courts that have expressed concern
about the use of the McDonnell Douglas framework in jury
instructions have, by and large, declined to find reversible error.
See, e.g., Sharkey, 214 F.3d at 374; Dudley v. Wal-Mart Stores,
Inc., 166 F.3d 1317, 1322 (11th Cir. 1999); Messina v. Kroblin
Transp. Sys., Inc., 903 F.2d 1306, 1308-09 (10th Cir. 1990). But
cf. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 118 (2nd Cir.
2000) (reversing and remanding on multiple grounds including
unexpurgated use of McDonnell Douglas framework in jury
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at hand, no such rote recitation took place: the district court
used simple language and avoided the technical phrases that
populate the McDonnell Douglas framework — phrases such as "prima
facie case" and "presumption." These are the sort of phrases that
have prompted expressions of concern in the cases upon which the
appellant relies. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372,
381-82 (2d Cir. 1994); Loeb, 600 F.2d at 1016. Equally as
important, the district court provided the jury with a thoughtful,
thorough, and easily understandable explanation of the relevant
legal concepts. No more was exigible to palliate any realistic
prospect of jury confusion.
In an attempt to throw cold water on this reasoning, the
appellant points to a compilation of pattern jury instructions.
See Draft Pattern Jury Instructions for Cases of Employment
Discrimination (Disparate Treatment) for the District Courts of
the First Circuit (Mar. 1, 2011) (Pattern Instructions),
20Discrimination.pdf. She notes that this compilation suggests
that it is usually unnecessary for a district court to describe
the McDonnell Douglas framework to a jury. See id. at 8 n.1
(suggesting that "there is no reason to instruct on McDonnell
Douglas burden shifting; that procedure . . . is likely only to
confuse jurors" and adding that use of McDonnell Douglas for that
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purpose "can result in error unless great care is taken to conform
it to the facts of the case"). This is grasping at straws: a
compilation of pattern instructions is merely an informal guide,
which "does not in any way curtail" the "wide discretion" enjoyed
by a district court to "instruct in language that it deems most
likely to ensure effective communication with jurors." United
States v. Gomez, 255 F.3d 31, 39 n.7 (1st Cir. 2001). Though
pattern instructions may be a useful reference point, they are not
binding. See id.; see also Pattern Instructions, preface
(cautioning that the pattern instructions are "simply a proposal"
and that "[n]either the Court of Appeals nor any District Court
within the circuit has in any way approved" their use).
Consequently, declining to follow a pattern instruction in a
particular case is not error per se. See Gomez, 255 F.3d at 39
That ends this leg of our journey. We conclude, without
serious question, that the appellant has not shown that the
district court abused its discretion by including in its jury
instructions a custom-tailored adaptation of the McDonnell Douglas
framework. Read in their entirety, the instructions tasked the
jury, in simple and easily understood language, with resolving the
overarching issue in the case: whether or not the defendants took
adverse employment actions against the appellant based on either
a retaliatory or discriminatory animus.
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B. The Pretext Claim.
The appellant's remaining claim of error posits that the
district court erred in instructing the jury that, even if the
jury found that the appellant had proven the elements of her prima
facie case, it would still have to consider whether the defendants'
proffered reasons for firing her were legitimate and
nondiscriminatory and, if so, whether those reasons were "merely
[a] pretext." Because the appellant never interposed any such
objection at trial, see Fed. R. Civ. P. 51(c)(2), our review is
for plain error, see Deppe, 509 F.3d at 58; Colón-Millín v. Sears
Roebuck de P.R., Inc., 455 F.3d 30, 41 (1st Cir. 2006).
The plain-error rubric is familiar. Under this rubric,
a party advancing an unpreserved claim of error must establish
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). The proponent of plain error bears
the burden of persuasion as to each of these four elements. See
United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); Cipes v.
Mikasa, Inc., 439 F.3d 52, 56 (1st Cir. 2006).
We long have cautioned that "the plain error hurdle is
high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.
1989). Nowhere is this hurdle higher than in instances in which
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an appellant relies on a claim of instructional error; in such
instances, reversals are hen's-teeth rare. See United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001); Wells Real
Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809-
10 (1st Cir. 1988). This hard-to-achieve standard makes good
sense: timely and specific objections to jury instructions "enable
a trial court to correct any . . . mistakes before the jury retires"
and, thus, avoid the necessity for a costly retrial. Jones v.
United States, 527 U.S. 373, 387-88 (1999).
Here, it is doubtful whether the district court's use of
the pretext language was error at all, let alone clear or obvious
error.3 In all events, we believe that the most straightforward
way to dispose of the appellant's claim of error is to focus on
the third element of the plain-error standard: whether the alleged
error affected the appellant's substantial rights. Satisfying
this element requires the appellant to show a reasonable
probability that, but for the alleged error, the verdict would
3 Federal courts regularly consider pretext in resolving FMLA
claims. See, e.g., Ameen v. Amphenol Printed Circuits, Inc., 777
F.3d 63, 70 (1st Cir. 2015); Henry, 686 F.3d at 55-58. By the
same token, the Rhode Island Supreme Court has stated that, once
the elements of a prima facie case have been established in a RICRA
employment discrimination case, the employer "must offer a
legitimate, nondiscriminatory reason for discharging th[e]
employee and then the employee must convince the fact-finder that
the reason offered by the employer is a pretext for discriminatory
animus." Poulin v. Custom Craft, Inc., 996 A.2d 654, 659 (R.I.
2010) (internal quotation mark omitted).
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have been different. See Bramley, 847 F.3d at 7. As we explain
below, the appellant has not come close to making this showing.
We start with a negative. The appellant does not contend
that it was inappropriate for the jury to consider whether the
defendants' articulated reasons for discharging her were
pretextual. Her assignment of error is much more narrowly cabined:
she only contends that the jury's consideration of pretext should
have taken place as part of its determination about whether she
had proven the elements of her prima facie case.
There is a fatal flaw in this contention. The appellant
has not offered any developed argumentation that would lead us to
conclude that the outcome of the trial would have been different
if the district court had moved the pretext instruction into an
earlier portion of the charge.4 This dearth of developed
argumentation is not surprising: no matter where the pretext
instruction was placed within the four corners of the charge, the
jury ultimately had to determine whether a discriminatory or
retaliatory animus motivated the defendants to fire the appellant.
4 Indeed, the appellant has not even made the trial transcript
part of the record on appeal. See Fed. R. App. P. 10(b); Real v.
Hogan, 828 F.2d 58, 60-61 (1st Cir. 1987). The absence of such a
transcript makes it surpassingly difficult to prevail on the sort
of nuanced argument that the appellant advances. See Real, 828
F.2d at 60-61 (explaining that "it is the appellant who must bear
the brunt of an insufficient record on appeal").
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Whether or not the defendants' articulated reasons for the firing
were pretextual was highly relevant to that determination.
In the last analysis, an argument premised on plain error
cannot succeed without "some level of certainty and
particularity." Id. Here, the appellant offers us neither
certainty nor particularity. Given this vacuum, plain error is
plainly absent. The appellant simply has not shown that the
outcome of the trial would likely have changed had the district
court rearranged the components of the charge. See Jones, 527
U.S. at 394-95 (stating that "[w]here the effect of an alleged
error is so uncertain, a [party] cannot meet his burden of showing
that the error actually affected his substantial rights");
Bramley, 847 F.3d at 8 (explaining that guesswork and speculation
are insufficient to satisfy an appellant's burden in connection
with the third element of plain-error review). After all, there
is no reason to believe that had the deck chairs on the Titanic
been rearranged, the ship's voyage would have had a more auspicious
Outcome: We need go no further. Since we have concluded that the
appellant's claims of instructional error lack force, it follows
inexorably that the district court did not abuse its discretion in
denying the appellant's motion for a new trial.