Jottings By An Employer's Lawyer

Thursday, April 08, 2004

5th Cir. -- Permissive Pretext Jury Instruction Required, At Least For Now

If you try jury cases in the 5th Circuit (or states that rely on its interpretation of Title VII for guidance on state laws) you will want to closely follow Kanida v. Gulf Coast Medical Personnel, LP (5th Cir. 4/7/04) [pdf]. One question presented was whether or not the trial court erred by refusing to give the jury the so-called "permissive pretext" instruction based upon the language from the Supreme Court in Reeves v. Sanderson Plumbing. The submitted instruction, which the Court found was a correct statement of law was:
If the plaintiff disproves the reasons offered by Defendants by a preponderance of the evidence, you may presume that the employer was motivated by retaliation.
Although articulating four reasons why such an instruction should not be required, the Court holds that it is, because of an earlier ruling, Ratliff v. City of Gainesville 256 F.3d 355, 359-60 (5th Cir. 2001). Fortunately for the defendant in this case, the Court goes on to hold that it does not rise to the level of reversible error in this cae; importantly for all defendants, it calls for an en banc reversal of the Ratliff decision.

The court also rules on other jury submission issues, including upholding the trial court's use of a business judgment instruction as well as some evidentiary issues, all resulting in upholding the defendant's jury verdict of no liability. Although good for this employer, it is important that this panel's call for reversal of Ratliff be followed, if not here, soon.

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