Bobby Brown v. Packaging Corporation of America

*The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0257P (6th Cir.)
File Name: 03a0257p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BOBBY BROWN,
Plaintiff-Appellant,
v.
PACKAGING CORPORATION OF
AMERICA,
Defendant-Appellee.
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No. 01-5864
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 00-01049—James D. Todd, Chief District Judge.
Argued: January 28, 2003
Decided and Filed: July 29, 2003
Before: NELSON and CLAY, Circuit Judges; HAYNES,
District Judge.*
2 Brown v. Packaging Corp. of America No. 01-5864
_________________
COUNSEL
ARGUED: Victor I. Fleitas, Tupelo, Mississippi, for
Appellant. Marcus M. Crider, WALLER, LANSDEN,
DORTCH & DAVIS, Nashville, Tennessee, for Appellee.
ON BRIEF: Victor I. Fleitas, Tupelo, Mississippi, Jim D.
Waide, WAIDE & ASSOCIATES, Tupelo, Mississippi, for
Appellant. Marcus M. Crider, WALLER, LANSDEN,
DORTCH & DAVIS, Nashville, Tennessee, Mark E.
Stamelos, KING & BALLOW, Nashville, Tennessee, for
Appellee.
NELSON, J., announced the judgment of the court and
delivered an opinion, in which CLAY, J. and HAYNES, D. J.,
concurred except as to Part II B. CLAY, J. (pp. 17-25),
delivered a separate opinion, in which HAYNES, D. J.,
concurred, which constitutes the opinion of the court on the
issue discussed in Part II B.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. This is an appeal from
a judgment entered on a verdict for the employer in an age
discrimination case. The main issue we are asked to decide is
whether the district court committed reversible error by
including instructions in its charge to the jury that replicated
the prima-facie-case and “burden-shifting” guidelines set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248 (1981).
Unlike my colleagues on the panel, I am inclined to think
that trial courts should be discouraged from parroting the legal
technicalities of McDonnell Douglas and Burdine in charging

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No. 01-5864 Brown v. Packaging Corp. of America 3
juries. Whether or not the inclusion of McDonnell Douglas
verbiage in jury instructions may create an unnecessary risk
that the jury will be confused, however, none of the members
of the panel is persuaded that any potential for confusion in the
case at bar was sufficiently great to necessitate a reversal here.
Accordingly, and because we are not persuaded by the
plaintiff’s remaining assignments of error, we shall affirm the
challenged judgment.
I
The plaintiff in this case, Bobby Brown, went to work for
the defendant, Packaging Corporation of America, in 1962,
when he was about 20 years old. In 1996 Mr. Brown was
promoted to a crew leader’s job. In that capacity he was
responsible for the operation of one of two large paper
machines at a plant in Counce, Tennessee. The promotion to
crew leader was based entirely on seniority and was mandated
by a collective bargaining agreement.
In 1999, when Mr. Brown was 57 years of age, plant
manager Michael Synyard offered him a promotion to the
position of temporary foreman. Brown accepted. The new
job, unlike the old one, was not covered by the collective
bargaining agreement.
Although Synyard did not need anyone’s approval to
promote Mr. Brown, he mentioned his decision to Mark
Kowlzan, a vice president of the company. Kowlzan voiced
serious reservations about Brown, asserting that he “lacked
leadership” and pointing out that he had been convicted of
arson for burning down his house. (The company had fired
Brown at the time of the conviction, which occurred in 1989,
but subsequently rehired him under a threat of litigation.)
Kowlzan further told Synyard about an incident in which
Brown had shown photographs of his wife in the nude to
fellow employees at the plant – behavior that was not only
bizarre, but that violated the company’s sexual harassment
policy. Synyard had not known about either the arson
4 Brown v. Packaging Corp. of America No. 01-5864
conviction or the photograph incident, and he testified at trial
that the information “dismayed” him.
Synyard promptly decided not to promote Brown after all,
and he instructed area supervisor David Ellison to have Brown
report for work on the next shift as a crew leader and not as a
foreman. When Brown asked what had happened to his
promotion, Ellison allegedly told him that Mr. Kowlzan
“wanted younger people and engineers to fill the job.” Ellison
testified that he never said any such thing.
Synyard met with Brown a day or two after the withdrawal
of the promotion. This time Brown was told he was being kept
on as crew leader because the man who was in line to succeed
him in that job was far weaker than Brown as far as experience
went. Synyard did not mention the arson or the nude
photographs, testifying later that “I thought it was very
humiliating and embarrassing, and I just didn’t see the need of
further embarrassing Bobby . . . .”
Synyard ultimately filled the temporary foreman’s slot by
promoting an employee named Jamie Mims. Mr. Mims was
40 years old.
Aggrieved by his failure to get the promotion he had been
promised, Mr. Brown filed an age discrimination charge with
the Equal Employment Opportunity Commission. The
company submitted a response denying that Brown had been
discriminated against because of age and asserting that Mims
“displayed more initiative and exhibited better leadership
characteristics.” The response did not mention Brown’s
conviction for arson or the nude photograph incident.
Unable to conclude that a violation of the Age
Discrimination Act had been established, the EEOC closed its
file and notified Mr. Brown of his right to sue the employer
within 90 days of his receipt of the notice. Brown exercised
this right, filing an action in the United States District Court

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No. 01-5864 Brown v. Packaging Corp. of America 5
for the Western District of Tennessee and demanding a jury
trial.
After denying a defense motion for summary judgment, the
district court denied a motion in limine wherein Brown sought
to exclude evidence of his arson conviction. The court granted
a motion to exclude evidence that David Ellison, the area
supervisor who first advised Brown that he was not being
promoted, had been convicted of a misdemeanor. (In August
of 1999 – after he had become an area supervisor – Ellison
pleaded no contest to a misdemeanor charge of criminal
trespass.)
When Brown’s case went to trial, the district court took
advantage of a recess to review its proposed jury instructions
with the lawyers. The proposed charge included five pages of
text adapted from the Supreme Court’s opinion in McDonnell
Douglas, 411 U.S. at 802-805. The language covered the four
McDonnell Douglas elements of a prima facie case, the
defendant’s burden of articulating a nondiscriminatory reason
for the challenged employment action, the plaintiff’s
obligation to prove that the proffered reason was a pretext, and
methods by which pretext may be shown. The court also
proposed to add the following caution:
“Remember, the ultimate burden remains at all times on
plaintiff to prove by a preponderance of the evidence that
he was discriminated against because of age; therefore, it
is not enough for plaintiff to simply prove or claim that
the stated reasons for PCA’s actions with regard to
plaintiff were not believable or are not the true reasons for
the actions. The reason for this is because plaintiff always
must prove by a preponderance of the evidence that he
was discriminated against because of his age. You must
determine whether plaintiff has proved that the reasons
given by PCA were a pretext for unlawful age
discrimination, and you may consider all the evidence in
making this determination.”
6 Brown v. Packaging Corp. of America No. 01-5864
Counsel for Mr. Brown objected that the proposed
instructions were improper for two reasons. First, he
maintained, Brown was offering not only indirect evidence of
wrongful discrimination – the type of evidence dealt with in
McDonnell Douglas – but direct evidence as well. Second,
counsel argued, even where the evidence is purely indirect, it
is confusing for a jury to be instructed on the elements of a
prima facie case and (as counsel put it) “all that burden shifting
business.”
The trial court was unmoved by either argument, and the
instruction was incorporated without change in the charge
given the jury at the end of the case. The jury found in favor
of the defendant, as we have said, and there has been a timely
appeal from the judgment entered on the verdict.
II
A
We turn first to Mr. Brown’s “direct evidence” argument.
The gist of the argument is that the McDonnell Douglas
paradigm relates only to cases where there is no direct
evidence of wrongful discrimination; a plaintiff who has
presented “some direct evidence of age discrimination,” this
court has said, “. . . need not make out a prima facie case under
the McDonnell Douglas framework.” LaPointe v. United
Autoworkers Local 600, 103 F.3d 485, 488 n.3 (6th Cir. 1996).
Mr. Brown submits that he presented direct evidence of
discrimination when he testified that area manager Ellison told
him he was not getting the promised promotion because vice
president Kowlzan “wanted younger people . . . .”
Although Mr. Brown characterizes his testimony as direct
evidence of discriminatory intent, our precedents suggest that
it may be more accurate to characterize it as circumstantial
evidence. See Hopson v. Daimler Chrysler Corp., 306 F.3d
427, 433 (6th Cir. 2002) (evidence that one of the plaintiff’s
supervisors held the opinion that race was a factor in the

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No. 01-5864 Brown v. Packaging Corp. of America 7
1It is worth noting that the Supreme Co urt did not intend its
discussion to limit the ways in which a plaintiff could establish a prima
facie case. As the Court explained in a footnote, “[t]he facts necessarily
will vary in [discrimination] cases, and the specification above of the
prima facie proof required . . . is not necessarily applicable in every
respect to differing factual situations.” McDonnell Douglas, 411 U.S. at
802 n.13.
To illustrate the p oint, we invite the reader to suppose that in the case
at bar there had been a wealth of circumstantial evidence of
discriminatory animus based on Brown’s age, but to suppose further that
Synyard had never taken any steps to fill the temporary foreman’s job
after withdrawing the offer to Bro wn. Brown might well have been able
to make out a case for the jury, under this hypothesis, notwithstanding the
absence of the fourth element in the McDonnell Douglas paradigm.
defendant’s decision not to promote the plaintiff was not direct
evidence of discrimination where the supervisor had no
involvement in the decision and did not reveal the basis for his
opinion). Ellison had no involvement in the decision not to
promote Brown, and Ellison did not reveal the basis for his
alleged insight into Kowlzan’s thought processes.
We agree that the testimony in question does not fall within
any of the four categories of proof described by the McDonnell
Douglas Court in discussing the establishment of a prima facie
case of discrimination.1 On the other hand, the fact that the
testimony fell outside the McDonnell Douglas paradigm does
not detract from the fact that Brown also presented evidence
that fit the paradigm exactly. In other words, Brown produced
evidence that (1) he was over the age of 40, (2) he accepted a
job for which he was qualified, (3) the job offer was
withdrawn despite his qualifications, and (4) the position was
ultimately filled by a much younger person. The evidence of
Kowlzan’s alleged bias tended to strengthen Brown’s prima
facie case, but it certainly did not render these four elements
irrelevant – and Brown would have had a prima facie case
under McDonnell Douglas even without the evidence of what
Ellison was supposed to have said about Kowlzan.
8 Brown v. Packaging Corp. of America No. 01-5864
2Burdine, a sex discrimina tion case decided in 198 1, was also
brought under Title VII.
If an instruction based on McDonnell Douglas could pass
muster without the circumstantial evidence involving Ellison,
we are not persuaded that introduction of the Ellison evidence
would necessitate a reversal – at least as long as the charge as
a whole gave the jury to understand that its first task was to
decide whether Packaging Corporation of America had been
shown, by a preponderance of the evidence, to have
discriminated against the plaintiff because of his being at least
40 years old. The court’s charge did that, as we read it.
B
Turning to Mr. Brown’s second argument – the argument
that it was confusing to instruct the jury on the details of the
framework erected by the Supreme Court in the McDonnell
Douglas case – I start with the observation that there was no
jury (and thus no jury charge) in McDonnell Douglas itself.
Decided by the Supreme Court in 1973, McDonnell Douglas
was a race discrimination case brought under Title VII of the
Civil Rights Act of 1964.2 Not until enactment of the Civil
Rights Act of 1991 did Congress provide for jury trials in Title
VII cases. See 105 Stat. 1072, 42 U.S.C. § 1981a. Prior to
that time a suit under Title VII was treated as a suit in equity,
a type of case historically tried by the court without a jury.
See In re Lewis, 845 F.2d 624, 626 n.1 (6th Cir. 1988).
The posture in which the McDonnell Douglas case reached
the Supreme Court may be outlined as follows. The district
court had dismissed on jurisdictional grounds a claim asserted
by the plaintiff under § 703(a)(1) of the 1964 Civil Rights Act.
The Eighth Circuit had reversed the dismissal and attempted,
in the opinion it published, to set forth the standards that
would govern the district court’s adjudication of the claim on
remand. The Supreme Court granted certiorari “[i]n order to
clarify the standards governing the disposition of an action

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No. 01-5864 Brown v. Packaging Corp. of America 9
challenging employment discrimination . . . .” McDonnell
Douglas, 411 U.S. at 497-98. “The critical issue,” as the
Supreme Court explained, “. . . concerns the order and
allocation of proof in a private, non-class-action challenging
employment discrimination.” Id. at 800 (emphasis supplied).
The “order and allocation of proof” are not matters for
which juries are responsible – and, as the First Circuit pointed
out in a leading case decided six years after McDonnell
Douglas, the McDonnell Douglas opinion “was not written as
a prospective jury charge . . . .” Loeb v. Textron, Inc., 600
F.2d 1003, 1016 (1st Cir. 1979). Heavily freighted with
technical legal language (“prima facie case,” e.g.), the
McDonnell Douglas opinion was written for an audience of
judges and lawyers. “[T]o read [the opinion’s] technical
aspects to a jury,” the Loeb court said, “. . . will add little to the
juror’s understanding of the case and, even worse, may lead
jurors to abandon their own judgment and to seize upon poorly
understood legalisms to decide the ultimate question of
discrimination.” Id. Cf. Kitchen v. Chippawa Valley Schools,
825 F.2d 1004, 1012 (6th Cir. 1987), where we quoted this
passage from Loeb with approval.
I do not mean to suggest that there can never be a case in
which the trial court will have discretion to use the framework
of McDonnell Douglas as a guide in drafting plain-English
instructions to the jury. See Rowlett v. Anheuser Bush, Inc.,
832 F.2d 194, 200 (1st Cir. 1987). Obviously, however, it
remains the responsibility of the judge to determine whether
the plaintiff has presented a prima facie case capable of
withstanding a motion for summary judgment or a directed
verdict – and the First Circuit has made it very clear that “the
term ‘prima facie case’ need never be mentioned to the jurors.”
Loeb, 600 F.2d at 1016. Where there is a dispute as to whether
the employer has met its burden of articulating a
nondiscriminatory reason for the challenged employment
action, similarly, “it will be for the judge to decide whether
defendant has stated a legitimate reason with such specificity
as to require plaintiff to prove it to be a pretext.” Id. n. 16.
10 Brown v. Packaging Corp. of America No. 01-5864
3In Cronich v. Wayne County Community College, 874 F.2d 359, 366
(6th Cir. 1989), we remark ed, citing Kitchen, that “[a]n instruction
incorporating [the shifting b urden of proof standards articulated in
McDonnell Douglas and Burdine] has been approved but not abso lutely
required by this court.” W hat the court actually did in Kitchen, however,
was uphold as “not erroneo us” a jury charge challenged by the appe llants
precisely beca use it “failed to instruct the jury on the shifting burden of
proof requirements [of McDonnell Douglas and Burdine].” Kitchen, 825
F.2d at 1012 and 1011 (emphasis supplied). And it hardly constitutes
approval of instructions parroting the language of McDonnell Douglas to
say that such instructions “will add little to the juror’s understanding of
the case and, even worse, may lead jurors to abandon their own judgment
and to seize upon poorly understood legalisms to decide the ultimate
question of discrimination.” Id. at 1012, quoting Loeb, 600 F.2d at 1016.
The Supreme Court has never rejected Loeb’s gloss on
McDonnell Douglas. Neither has the Sixth Circuit. In our
Kitchen opinion, on the contrary, after quoting the passage
from Loeb set forth above, we declared that “a jury instruction
will not automatically be erroneous simply because it does not
precisely follow the legal niceties of McDonnell Douglas and
Burdine.” Kitchen, 825 F.2d at 1012.3
In re Lewis, 845 F.2d 624 (6th Cir. 1988), represents this
circuit’s strongest endorsement of the view taken by the First
Circuit in Loeb. The Lewis case arose prior to the 1991
legislation that provided for jury trials in Title VII cases, and
the portion of the appeal in Lewis that is relevant here dealt
with jury instructions on a race discrimination claim brought
under Michigan’s Elliott-Larsen Civil Rights Act. Michigan’s
standard jury instructions, which the district court had used
after rejecting a request for a McDonnell Douglas-type
instruction, “deliberately eschewed” the McDonnell Douglas
model. The Michigan Supreme Court Committee on Jury
Instructions, which drafted the instruction at issue in Lewis (II
Michigan Standard Jury Instructions 2d § 105.04 (quoted at
845 F.2d 634)), quoted the language of Loeb in explaining why
the committee had purposely steered clear of the McDonnell
Douglas formulation: a McDonnell Douglas instruction, said
the committee, would “‘add little to the juror’s understanding

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No. 01-5864 Brown v. Packaging Corp. of America 11
of the case and, even worse, may lead jurors to abandon their
own judgment and to seize upon poorly understood legalisms
to decide the ultimate question of discrimination.’ . . .” Id.
This court agreed. Holding that there was no error in
rejecting the McDonnell Douglas instruction tendered by the
defendant at the time of trial, we voiced a clear preference for
the instructions that eschewed the McDonnell Douglas model:
“We agree with the Committee on Jury Instructions.
Rather than confuse the jurors with legal definitions of the
burdens of proof, persuasion and production and how they
shift under McDonnell Douglas, we find that the above
instruction was a clear and preferable statement of the
law. We therefore find no error in the district court’s
decision not to give defendant’s Proposed Instruction No.
4.” Id.
Other courts of appeals have likewise followed Loeb’s lead.
See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir.
1994) (bemoaning the fact that “lawyers are still prone to
include in requested jury charges language that was written by
appellate courts in the context of bench trials – language that
is at best irrelevant, and at worst misleading to a jury”);
Sharkey v. Lasmo (AUL LTD.), 214 F.3d 371, 374 (2d Cir.
2000) (“We agree that juries should not be charged on the
McDonnell Douglas burdening-shifting framework”); Gordon
v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d Cir.
2000) (“The jury . . . does not need to be lectured on the
concepts that guide a judge in determining whether a case
should go to the jury”); Mullen v. Princess Anne Volunteer
Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988) (burden-
shifting instructions “are beyond the function and expertise of
the jury, which need never hear the term ‘prima facie case’”);
Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.
1992) (“Instructing the jury on the elements of a prima facie
case, presumptions, and the shifting burden of proof is
unnecessary and confusing”); Gehring v. Case Corp., 43 F.3d
340, 343 (7th Cir. 1994) (trial judge acted correctly in
12 Brown v. Packaging Corp. of America No. 01-5864
4But see Lynch v. Belden and Co., Inc., 882 F.2d 262, 26 9 (7th Cir.
1989) (“it was prope r for the d istrict court to instruct the jury as to the
Mc Do nne ll Douglas/Burdine formula for evaluating indirect evidence”).
declining “to walk the jury through the paradigm established
by McDonnell Douglas”);4 Williams v. Valentec Kisco, Inc.,
964 F.2d 723, 731 (8th Cir. 1992) (reiterating that “the
McDonnell Douglas ‘ritual is not well suited as a detailed
instruction to the jury’ . . .”); Costa v. Desert Palace, Inc., 299
F.3d 838, 855 (9th Cir. 2002) (en banc) (“it is not normally
appropriate to introduce the McDonnell Douglas burden-
shifting framework to the jury”), aff’d, ___ U.S. ___, 123 S.Ct.
816 (2003); Messina v. Kroblin Transportation Systems, Inc.,
903 F.2d 1306, 1308 (10th Cir. 1990) (“The McDonnell
Douglas inferences provide assistance to a judge as he
addresses motions to dismiss, for summary judgment, and for
directed verdict, but they are of little relevance to the jury”);
Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th
Cir. 1999) (“We stress that it is unnecessary and inappropriate
to instruct the jury on the McDonnell Douglas analysis”).
But while most courts of appeals would agree that it is
normally inappropriate to instruct the jury on the McDonnell
Douglas analysis, seldom is it held to be reversible error for a
trial court to do so as long as the instruction summarizes the
law accurately. See, e.g., Dudley, Messina, Mullen, and
Sharkey, all of which are cases where the giving of McDonnell
Douglas instructions was held not to constitute prejudicial
error. The use of such an instruction was cited as error in
Gordon, but there were several grounds for reversal in that
case and we do not know whether the Second Circuit panel
would have been prepared to reverse solely on the McDonnell
Douglas ground.
In the case at bar, after examining the instructions as a
whole, we do not find that the potential for prejudice, if any,
rises to a level that would require reversal. The question “is
not whether an instruction was faultless in every respect, but

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No. 01-5864 Brown v. Packaging Corp. of America 13
whether the jury, considering the instructions as a whole, was
misled.” Messina, 903 F.3d at 1309. We do not believe that
the jury was misled here.
C
During oral argument, counsel for Mr. Brown argued that
the instruction quoted in Part I of this opinion – an instruction
that included the words “it is not enough for plaintiff simply to
prove or claim that the stated reasons for PCA’s actions with
regard to plaintiff were not believable or are not the true
reasons for the actions” – adopted the “pretext-plus” theory
rejected by the Supreme Court in Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000). This argument
was not presented to the district court, nor was it mentioned in
Mr. Brown’s briefs on appeal; accordingly, we need not
address it. If we were to address the argument, however, we
should have no hesitancy in saying that it is without merit.
The instruction in question properly reminded the jury that
“plaintiff must always prove by a preponderance of the
evidence that he was discriminated against because of his age.”
The instruction also told the jury that Mr. Brown had to do
more than prove that the company’s stated reason for its action
was a pretext. This was an accurate statement of the law: “It
is not enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff’s explanation of intentional
discrimination.” St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 524, 519 (1993), as quoted in Reeves, 530 U.S. at 146-47.
Even if the jury in the case at bar disbelieved the company’s
explanation for denying Mr. Brown the promotion, the Reeves
and St. Mary’s Honor Center cases teach, the jury could not
return a verdict for Mr. Brown unless it was prepared to draw
the inference from all of Mr. Brown’s evidence that the
company was guilty of intentional age discrimination.
To be improper under Reeves, the instruction would have
had to tell the jury that evidence of pretext must be
supplemented by evidence more extensive than that necessary
14 Brown v. Packaging Corp. of America No. 01-5864
5Under Rule 609(a), the credibility of a witness other than the
defendant in a criminal trial may be attacked by evidence of his
conviction of a crime punishable by imprisonment in excess of one year
(or regardless of punishment if the crime involved dishonesty or false
statement).
W ith respect to convictions more than 10 years old, Rule 609(b)
provides as follows:
“Evidence of a conviction under this rule is not admissible
if a period of more than ten years has elapsed since the date of
the conviction . . . unless the court determ ines, in the interests of
justice, that the probative value of the conviction supported by
specific facts and circum stances substantially outweighs its
prejudicial effect. However, evidence of a conviction more than
10 years old . . . is not adm issible unless the proponent gives to
the adve rse party sufficient ad vance written notice o f intent to
use such evidence to provide the adverse party with a fair
opp ortunity to contest the use of such evidence.”
to support the prima facie case described in McDonnell
Douglas. The instruction given here told the jury no such
thing.
III
A
In his next assignment of error, Mr. Brown says that “[t]he
district court committed reversible error in admitting evidence
of Mr. Brown’s 12 year old arson conviction to impeach his
credibility.” But impeachment of credibility pursuant to Rule
609, Fed. R. Evid.,5 was not the only basis on which the
district court decided to admit evidence of the conviction. As
the court pointed out during the pretrial conference at which
Brown’s motion in limine was denied, the jury was going to
hear about the arson conviction in any event, the company
having declared its intent to show that the conviction was one
of the reasons Brown was not promoted. The district court
ruled that the company could use the evidence for either
purpose or both purposes.

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No. 01-5864 Brown v. Packaging Corp. of America 15
As far as the impeachment purpose is concerned, the district
court satisfied itself that the advance written notice required by
Rule 609(b) had been given. The court obviously thought that
the “prejudicial effect” spoken of in Rule 609(b) would be
minimal, given that the evidence could be put before the jury
anyway for a purpose having nothing to do with Rule 609.
The district court’s conclusion did not represent an abuse of
discretion, as we see it. In any event, we are satisfied that the
decision to admit evidence of Mr. Brown’s conviction did not
result in substantial prejudice. The challenged ruling thus
provides no ground for reversal. See United States v. Sloman,
909 F.2d 176, 180-81 (6th Cir. 1990).
B
Finally, Mr. Brown maintains that evidence of David
Ellison’s misdemeanor criminal trespass conviction should
have been admitted for the limited purpose of showing that the
company’s professed reliance on Mr. Brown’s arson
conviction as a reason for denying Brown the promised
promotion was a pretext for age discrimination. If Ellison
suffered no adverse employment action as a result of pleading
to a misdemeanor charge, Brown’s lawyer wanted the jury to
infer, the denial of a promotion to Mr. Brown must have been
attributable to something other than his arson conviction.
Brown submits that the court’s decision to exclude the Ellison
evidence was reversible error.
We disagree. The district court relied heavily on the fact
that the decision not to promote Brown occurred prior to
Ellison’s conviction. Ellison was not promoted following his
misdemeanor conviction, moreover, but simply remained in
the job he held before the conviction, just as Brown himself
did. Under these circumstances, and given the disparity in the
seriousness of the offenses, Ellison’s conviction was pretty
thin gruel as evidence of pretext. The court’s exclusion of the
misdemeanor conviction was not an abuse of discretion, in our
opinion, and we do not think it was prejudicial in any event.
16 Brown v. Packaging Corp. of America No. 01-5864
AFFIRMED.

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No. 01-5864 Brown v. Packaging Corp. of America 17
1This concurring opinion, which Judge Haynes joins, constitutes the
majority view regarding the use of the McDonnell Douglas burden-
shifting test in jury instructions.
____________________
CONCURRENCE
____________________
CLAY, Circuit Judge, concurring. Although I agree with the
outcome reached in this case, as well as much of the reasoning
expressed in the lead opinion, I write separately to express my
disagreement with Part II.B of the lead opinion, which seeks
to discourage district courts from utilizing the burden-shifting
test enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) when giving jury instructions.1
Ordinarily, a district court should give a requested jury
instruction when such instruction offers a correct statement of
the law and is not irrelevant, redundant, or confusing. See
King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000)
(holding that the “district court had discretion to instruct the
jury in any manner it deemed appropriate, as long as it
correctly stated [the appropriate] substantive law, instructed on
the issues relevant to the case at hand, and did not mislead the
jury”); Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011
(6th Cir. 1987) (“A judgment can be reversed if the
instructions, viewed as a whole, were confusing, misleading
and prejudicial.”) (citing DSG Corp. v. Anderson, 754 F.2d
678, 679 (6th Cir. 1985)). No one contests that the McDonnell
Douglas burden-shifting test offers a correct description of the
prima facie case required to establish circumstantial evidence
of employment discrimination. Moreover, the test is not
irrelevant, redundant, or confusing.
Certainly, this Court has never forbidden the use of the
McDonnell Douglas test. In Kitchen, the issue was whether
the district court committed reversible error in refusing to
18 Brown v. Packaging Corp. of America No. 01-5864
2Actually, some of the lead opinion’s cited cases, like Kitchen and
Lewis, rejected the notion that the burden-shifting framework is a
necessary component of jury instructions in an employment
discrimination case, but the cases did not expressly prohibit the
framework’s use. These cases merely provide some dicta suggesting that
the burden-shifting approach is co nfusing to explain to juro rs. See Loeb
v. Textro n, Inc ., 600 F.2d 1 003, 101 6 (1st Cir. 1979) (acknowledging that
“the subtleties of M cDonne ll Douglas are confusing” for judges and juries
and that “to read its technica l aspec ts to a jury [may confuse a juror],” but
then stating that the use of McDonnell Douglas is workable because “we
do not equate use of McDonne ll Douglas with a requirement that the full
formulation be read in haec verba to the jury”); see also Gehring v. Case
Corp., 43 F.3d 34 0, 343 (7th Cir. 1994) (rejecting the plaintiff’s argument
instruct a jury in a retaliation case, brought under Michigan
state law, on the burden-shifting test. This Court decided that
the district court did not err “because the jury’s proper concern
was with the ultimate question of retaliation and not with the
potentially confusing shifting of evidentiary burdens.”
Kitchen, 825 F.2d at 1012. But affirming the district court’s
decision not to give an instruction cannot be equated with
reversing a district court’s decision to give the instruction.
Kitchen’s comment about potential confusion amounts to no
more than dicta. Similarly, in In re Lewis, 845 F.2d 624, 634
(6th Cir. 1988), this Court affirmed the district court’s decision
not to give the McDonnell Douglas instruction. The Court
made no finding that giving a McDonnell Douglas instruction
would have been legally erroneous. It should not be gleaned
from either of these cases that a district court errs in giving a
McDonnell Douglas instruction on the basis of its allegedly
confusing nature, since holding that an instruction is
unnecessary or superfluous is quite different from holding that
an instruction is actually detrimental to the jury’s
understanding of what it is to decide.
In determining that juries are not sufficiently sophisticated
to understand the McDonnell Douglas test, the lead opinion
essentially relies on dicta from other circuits disapproving of
including the McDonnell Douglas test in jury instructions, but
declining to reverse on such grounds.2 Sharkey v. Lasmo

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No. 01-5864 Brown v. Packaging Corp. of America 19
that he was entitled to a burden-shifting instruction); Williams v. Valentec
Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (affirming the district
court’s refusal to include the burden-shifting test in its jury instructions);
Costa v. Desert Palace, Inc., 299 F.3d 83 8, 854-55 (9th Cir. 2002) (en
banc) (mentioning, in dicta, that “it is not normally appropriate to
introduce the M cDonne ll Douglas burden-shifting fram ework to the jury,”
as part of a general discussion about the relationship between the
McDonnell-Douglas test and the single- and mixed-motive analyses),
aff’d, – U.S. –, 123 S .Ct. 2148, 2003 W L 2131 0219 (June 9 , 2003).
(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000); Dudley v. Wal-
Mart Stores, Inc., 166 F.3d 1317, 1321-22 (11th Cir. 1999);
Cabrera v. Jakabovitz, 24 F.3d 372, 380-84 (2d Cir. 1994);
Walther v. Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir.
1992); Messina v. Kroblin Transp. Sys. Inc., 903 F.2d 1306,
1308-09 (10th Cir. 1990); Mullen v. Princess Anne Volunteer
Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988); see also
Gordon v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d
Cir. 2000) (observing that the inclusion of the McDonnell
Douglas test in the jury instructions was erroneous but
reversing on other grounds). The largely conclusory rationales
detailed in those cases are less than persuasive.
Two main reasons generally are advanced in support of
excluding the McDonnell Douglas test from jury instructions.
The first rationale, based on the idea that judges should only
use language that jurors can understand, implies that lay
persons do not easily understand such terms as “prima facie
case,” “shifting burden,” and “burden of proof.” See Cabrera,
24 F.3d at 381; Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st
Cir. 1979); Gerrilyn G. Brill, Instructing the Jury in an
Employment Discrimination Case, 1998 FED. CTS. L. REV. 2,
4.5-4.6 (March 1998). Yet, as the partial dissent in Loeb
noted, “[t]he difficulties involved in instructing a jury in a
products liability case, where liability is alternately premised
on the three theories of strict liability, negligence, and
warranty are no less complex than the shifting burdens
outlined in McDonnell Douglas.” Loeb, 600 F.2d at 1024
(Bownes, J., concurring and dissenting). Similarly,
20 Brown v. Packaging Corp. of America No. 01-5864
complicated terminology abounds in such areas of law as
medical malpractice. See, e.g., Joseph H. King, Jr.,
Reconciling the Exercise of Judgment and the Objective
Standard of Care in Medical Malpractice, 52 OKLA. L. REV.
49, 69-70 (noting the potential confusion of “best judgment”
language in jury instructions for medical malpractice lawsuits).
Yet courts have not jettisoned these frameworks from jury
instructions on the theory that juries are incapable of
comprehending sophisticated nomenclature. Indeed, no
legitimate distinction has been asserted between the products
liability and medical malpractice contexts and the present
context of employment discrimination. Thus, if a jury is
capable of understanding the terms used in contexts such as
those of products liability and medical malpractice, then there
is no apparent reason why a jury should not be able to
understand the terms used in the employment discrimination
context.
Moreover, the notion that juries are too easily confused by
such terminology is unexplained and unproven. The cases
advancing this viewpoint do not cite any empirical data in
drawing the conclusion that juries are not sufficiently capable
of understanding McDonnell Douglas. The First Circuit’s
Loeb opinion was released not terribly long after McDonnell
Douglas was decided, and it reflects the court’s own
confusion as to what constituted the settled law of shifting
burdens in an employment discrimination case. Indeed, the
First Circuit backed away from its earlier misgivings,
acknowledging that the Loeb decision was influenced by its
own confusion:
Although this framework was considered complicated and
cumbersome when it was first used in
McDonnell-Douglas, with repeated use courts have
become more comfortable with it, both for their own use
in ruling on Title VII claims and for the jury's use in
ruling on intentional discrimination. . . . It is a
straightforward way of explaining how to consider

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No. 01-5864 Brown v. Packaging Corp. of America 21
whether there is intentional discrimination in situations
where such discrimination is not likely to be overt.
Rowlett v. Anheuser-Busch, Inc. 832 F.2d 194, 200 (1st Cir.
1987) (citation omitted), abrogated on other grounds by
Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999). Thus, the
First Circuit, which was the first to question the wholesale
importation of McDonnell Douglas into jury instructions in
Loeb, backed off and embraced its use just a few years later.
When a trial court understands the law, it should be able to
explain the law to a jury with relative ease. Trial courts are
much more comfortable with McDonnell Douglas than they
were twenty years ago when the Supreme Court was still road-
mapping many burden of proof issues in employment
discrimination law. The concerns that were present during the
time Loeb was decided have largely abated. Even assuming
that a jury might experience difficulty understanding an aspect
of the burden-shifting structure, it can – and presumably will
– request clarification from the court.
The other most frequently cited rationale is that once the
case has been tried and is about to be submitted to the jury, the
McDonnell Douglas analysis is no longer relevant because it
is the function of the trial judge, not the jury, to engage in the
burden-shifting analysis. That is, it is argued that if the judge
determines that the plaintiff has not made out a prima facie
case, the case is dismissed by way of a directed verdict in
defendant’s favor; if the plaintiff has established a prima facie
case and the defendant has articulated no legitimate non-
discriminatory reason for its adverse employment action,
judgment is rendered for the plaintiff; and if the plaintiff has
established a prima facie case and the defendant has articulated
a legitimate non-discriminatory reason, the jury considers only
whether the articulated reason is pretext for unlawful
discrimination. See, e.g., Deborah C. Malamud, The Last
22 Brown v. Packaging Corp. of America No. 01-5864
3It is impo rtant to note that the parties’ shifting burdens of production
do not form the entirety of a jury’s inquiry, which is, at its core, whether
it finds by a preponderance of the evidence that the em ployer intentionally
discriminated against the plaintiff. United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711 , 775 (1983). Nevertheless, eleme nts
of a prim a facie case frequently are still relevant after the case has gone
to the jury. For instance, when an issue of fact remains as to one or more
of the elem ents in a plaintiff’s prima facie case, it is sometimes necessary
to ask the jury, usually as part o f a special verdict form, to engage in
factfinding on that particular element. Even the Loeb court had
acknowledged that McDonnell Douglas would continue to be relevant in
this scena rio. Loeb, 600 F.2d at 1016.
Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV.
2229, 2323 (1995).3
For thirty years, the McDonnell Douglas analysis has played
an important role in the framework of employment
discrimination law, and that analysis might assist a jury in
understanding the dispute it has been asked to resolve. For
instance, if the jury in this case had simply been told,
“Packaging Corporation says that it decided not to promote
Mr. Brown because of his arson conviction and an incident at
work involving nude photographs of his wife; you decide
whether you think they are lying and that their real reason was
age discrimination (which you may infer if you believe four
certain facts),” the jury might have wondered why the inquiry
was framed in that way and focused only on that aspect of the
trial. Only an explanation of the parties’ initial respective
burdens would shed further light on the reasons for the
inquiry’s focus. Thus, even if the giving of the McDonnell
Douglas test is not required, it is often beneficial in assisting
a jury’s comprehension of the issues it has been asked to
resolve.
This is particularly true when one recalls the policy grounds
underlying the formulation of the McDonnell Douglas test in
the first place. As the partial dissent in Loeb noted, the
McDonnell Douglas test sought to “accommodate both the
strong policy reasons for allowing plaintiff to proceed on the

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No. 01-5864 Brown v. Packaging Corp. of America 23
4I adhe re to this view notwithstanding language in Hicks, 509 U.S.
at 510-11, that some commentators have read as dampening (or even
eliminating) the relevance of McDonnell Douglas once the employer
asserts a legitimate explanation for its actions. See, e.g., Malamud, supra,
at 232 4. Hicks should not be read as attempting to supplant the
Mc Do nne ll Douglas burd en-shifting analysis at any stage of the litigation.
See W illiam R. Corbett, Of Ba bies, Bathwater, and Throwing Out Proof
Struc tures: It is N ot Tim e to Jettison M cDonn ell Dou glas, 2 EMPLOYEE
RTS. & EM P. PO L’Y J. 361, 386-89 (19 98) (arguing that the centrality of
Mc Do nne ll Douglas in emp loyment discrim ination cases, and its
relevance in jury instructions, remains after Hicks). Until the Supreme
Court indicates otherwise, the McDonnell Douglas framework remains the
driving force for burden of proof issues in cases resting on circumstantial
evidence.
basis of a prima facie case and the further logical reason that
the employer was the person best able to explain legitimate
reasons for failing to hire (or firing) an otherwise qualified
person who was within the protected class.” Loeb, 600 F.2d at
1024 (Bownes, J., concurring and dissenting). Bearing these
policy considerations in mind, the Supreme Court has
endorsed the notion that a jury may infer discrimination if
(1) it finds that the plaintiff has established the four elements
of the prima facie case and (2) it disbelieves the employer’s
explanation for its adverse employment action(s). Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993)).4 The policy reasons do not disappear in the face of an
employer’s ability to rebut a prima facie case by offering a
legitimate, non-discriminatory reason for its actions. Thus,
“[s]ome instruction to the jury on the prima facie case is
necessary for a full appreciation of what is involved in
discrimination cases.” Loeb, 600 F.2d at 1024 (Bownes, J.,
concurring and dissenting).
Another problem with the lead opinion is that although it
does not explicitly forbid district courts from giving the
McDonnell Douglas instruction, it impliedly attempted to put
them on notice that giving such an instruction may place in
jeopardy the validity of a jury’s verdict on appellate review.
24 Brown v. Packaging Corp. of America No. 01-5864
However, the lead opinion does not explain the circumstances
under which a jury verdict might be overturned because of the
use of the instruction, and when the verdict would not be
overturned. Indeed, it does not explain why the district court
did not abuse its discretion in this case, and it therefore
provides little guidance to district courts in deciding whether
to include such an instruction. The likely result from such a
holding is that many district courts might simply refuse to give
the instruction, instead determining that eliminating the risk of
having a jury verdict overturned on appeal outweighs the
benefit of providing a jury with a fully developed jury
instruction on the applicable employment discrimination law
issues.
Such a development would be unfortunate because
describing the burden-shifting paradigm often can be
beneficial in communicating to juries an understanding of
employment discrimination law. Specifically, as discussed
above, the McDonnell Douglas test provides jurors with a
fleshed-out context for the purpose of resolving the factual
disputes presented by the case being considered. The risk of
confusion should be minimal or nonexistent when the judge
explains to the jury that McDonnell Douglas provides a
backdrop to the jurors’ role as factfinders, and that their
ultimate duty is to determine whether (1) the employer’s
proffered legitimate reason for an adverse employment action
was pretextual and (2) the employer’s true motive for taking
the adverse action was illegal discrimination. See, e.g.,
Mullen, 853 F.2d at 1137 (finding no error in the jury
instructions where the trial court directed the jury to focus on
the central issues of whether the employer’s asserted reason
was pretext for employment discrimination).
The lead opinion is correct in stating that “it remains the
responsibility of the judge to determine whether the plaintiff
has presented a prima facie case capable of withstanding a
motion of summary judgment or a directed verdict.” However,
this does not mean that the McDonnell Douglas instruction
does not provide a useful purpose, or that it is superfluous or

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No. 01-5864 Brown v. Packaging Corp. of America 25
confusing. Indeed, the average juror is not incapable of
understanding such language as “prima facie case” when it is
properly explained. As in any jury trial, it is the responsibility
of the judge to define legal terms and to clarify any subsequent
confusion during deliberations, as requested by the jury at the
time. “So long as a trial court does not fall into the mistake of
placing upon defendant an improper burden, its commenting
on shifting burdens imports no error.” Loeb, 600 F.2d at 1024
(Bownes, J., concurring and dissenting). Therefore, the district
court’s use of the McDonnell Douglas test with its burden-
shifting paradigm was an appropriate tool in instructing the
jury.

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