Shawnee Patten v. Wal-Mart Stores East, Inc.

United States Court of Appeals
For the First Circuit
No. 01-2512
SHAWNEE PATTEN,
Plaintiff, Appellant,
v.
WAL-MART STORES EAST, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
John P. Gause with whom Berman & Simmons was on brief for
appellant.
Christopher W. Nanos for appellee.
August 14, 2002

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COFFIN, Senior Circuit Judge. Appellant Shawnee Patten, a
former employee of appellee Wal-Mart Stores East, Inc., challenges
two rulings made by the district court during the trial of her
analogous claims under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101-12213, and the Maine Human Rights Act ("MHRA"),
5 M.R.S.A. § 4551-4633. She asserts that the court incorrectly
instructed the jury on her burden of proof and improperly excluded
evidence of a state agency's finding of discrimination. Concluding
that the district court did not err, we affirm the judgment in
favor of Wal-Mart.
I. Background
Appellant suffers from Charcot-Marie-Tooth disease ("CMT"), a
disability similar in its effects to muscular dystrophy. Although
the CMT does not prevent appellant from working, it substantially
limits her ability to walk or stand for a long time. Because of
the illness, she often has pains in her arms and legs, and has an
unusual gait. Appellant’s supervisors at Wal-Mart were aware of
her disability from the time she first applied for a position
there. During appellant’s ten-month employment, Wal-Mart
repeatedly accommodated her by approving long-term leaves of
absence and transferring her to less-demanding positions when she
felt the CMT prevented her from adequately doing her job.
Throughout her tenure at Wal-Mart, which began on September
30, 1997, Patten’s presence was marked by accommodations and
absences, only sometimes because of CMT. In October 1997, Patten
suffered a back injury as a result of a fall unrelated to CMT.

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From then through December, Patten was transferred to two new
positions because she was restricted from various tasks, including
standing and lifting. From January 2 through January 27, 1998,
Patten took a leave of absence for a heart condition that was
induced by caffeine. From February 24 through June 1, 1998, Patten
took another leave of absence, related to CMT, for surgery to
diminish the "hammer toes" syndrome that she had been experiencing.
When she returned to work at the beginning of June, Patten was
restricted to only four hours of work per day and she could stand
during only one of those hours. Patten informed Theresa Barrows,
the personnel manager, of these limitations and was assigned to an
alternate position for one month, after which she returned to a
cashier's position.
Patten alleged that on the day she returned to work, she
overheard Barrows, Gerald Tyler, the store’s manager, and Paula
Carey, the assistant store manager, having a conversation about
her. Patten recalled hearing one of them make the following
remarks: "We know Shawnee has a disability, but we’re just tired of
this. We’re tired of her, and we just don’t feel that she needs to
be here."
Between June 27 and July 19, Patten missed six days of work,
left early on another day (without justification), and called in
sick one day. On July 19, Patten arrived at work, but felt ill.
After she asked to be excused, Carey called Patten to her office
and allegedly stated: "We understand that you have health problems.
We understand that you are disabled, but we don’t want you working

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in this store." When Patten asked if she was being fired because
of her disability, Carey allegedly responded, "you may take it as
you want, but you are not working here."
Appellant sued Wal-Mart for discriminating against her on the
basis of her disability, in violation of the ADA and the MHRA, and
the case proceeded to trial. All of Patten's allegations were
denied by management personnel. Carey testified that she
terminated Patten’s employment because of non-CMT-related
attendance problems that had developed during Patten’s final weeks
at Wal-Mart. Tyler testified that Patten was fired for "gross
misconduct of the attendance policy."
At the conclusion of the evidence, the district court
pertinently instructed the jury on termination as follows:
Termination. To succeed on her claim, Shawnee Patten has
the burden of proving by a preponderance of the evidence
that her disability was the determining factor in the
decision to discharge her . . . .
To prove that a disability was the determining factor in
the decision to terminate her, Shawnee Patten is not
required to prove that it was the sole motivation or the
primary motivation for Wal-Mart’s decision, but she must
prove by a preponderance of the evidence that her
disability actually made the difference in causing Wal-
Mart to terminate her employment.
The jury concluded that although appellant is disabled under
federal and state law, her disability was not the determining
factor in Wal-Mart’s decision to discharge her. It therefore found
in Wal-Mart’s favor. This appeal ensued.

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1 We need not get into the question of whether mixed-motive
analysis is available on strong circumstantial evidence of
discrimination. See Weston-Smith v. Cooley Dickinson Hosp., 282
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II. Discussion
A. The Contested Jury Instruction
Appellant contends that the district court incorrectly
instructed the jury that her supervisor’s discriminatory animus had
to be "the determining factor," rather than "a motivating factor,"
in the decision to terminate her. We review a contested jury
instruction de novo, Ponce v. Ashford Presbyterian Cmty. Hosp.,
238 F.3d 20, 24 (1st Cir. 2001), and begin by looking briefly at
the crowded landscape of discrimination cases.
These cases fall into two general categories. The more
common genre involves evidence of discrimination that is
circumstantial. In such cases the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973),
applies. For our purposes, it is enough to say here that after
plaintiff and defendant bear their preliminary burdens, plaintiff
bears the ultimate burden of proving that the alleged
discriminatory action was the determining factor in an adverse
employment action.
The second and less common type involves direct evidence,
evidence that unambiguously implicates an age discrimination
motive. Where such evidence exists, a mixed-motive analysis
applies; that is, a plaintiff's burden is tempered so that she need
prove only that the discriminatory action was a motivating factor
in an adverse employment decision.1 The defendant then may "assert

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F.3d 60, 64 (1st Cir. 2002). For present purposes, we will deal
with the case in terms of direct evidence. There was no strong
circumstantial showing of discrimination here.
2 This circuit has noted, but not resolved, the question of
whether that portion of the 1991 Civil Rights Act which amended
Title VII to provide for limited relief against defendants who
would have taken the same action even absent their discriminatory
motive, see 42 U.S.C. § 2000e-5(g)(2)(B), applies to cases under
the ADA. See Thomas v. Contoocook Valley Sch. Dist., 150 F.3d 31,
42 n.6 (1st Cir. 1998). Giving plaintiff the benefit of the doubt,
we assume arguendo that the 1991 Act standards would apply.
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an affirmative defense, bearing the burdens of production and
persuasion that it <would have taken the same action in the absence
of the impermissible motivating factor.'" Weston-Smith v. Cooley
Dickinson Hosp., 282 F.3d at 64 (quoting 42 U.S.C. § 2000e-
5(g)(2)(B)).2
Direct evidence, which "consists of statements by a
decisionmaker that directly reflect the alleged animus and bear
squarely on the contested employment decision," Febres, 214 F.3d
at 60, opens the door to a mixed motive analysis. The high
threshold for this type of evidence requires that "mere background
noise" and "stray remarks" be excluded from its definition. Id.
at 61; see also Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d
572, 580-81 (1st Cir. 1999) (concluding that the owner’s statement
that he did not "need minorities . . . on the job" could have been
either discriminatory or a response to what "he perceived as an
unjustified attempt to impose some sort of quota system upon his
company"). "A statement that can plausibly be interpreted two
different ways -- one discriminatory and the other benign -- does
not directly reflect illegal animus, and, thus, does not constitute

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3 Given our determination that no direct evidence was
presented here, we need not consider appellee’s contention that
appellant waived her right to appeal on this issue by failing to
object to a portion of the magistrate judge’s recommended decision.
See Seahorse Marine Supplies v. P.R. Sun Oil Co., __ F.3d __, 2002
WL 1431766, at *14 n. 15 (1st Cir. 2002).
Appellant alternatively requests that we do away with the
distinction between circumstantial and direct evidence, and instead
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direct evidence." Id. at 583. Hence, "direct evidence is
relatively rare." Id. at 580. To be sure, that burden is not
insurmountable. For example, in Febres, we concluded that
plaintiff presented direct evidence where an employer’s criteria
for an employment decision involved "job performance, union
identification, and 'in some cases, the age.’" 214 F.3d at 59.
Patten argues that the two sets of comments by her supervisors
referring to her disability, see supra at 3-4, constitute direct
evidence and thus take her out of the McDonnell Douglas framework.
None of these statements constitutes direct evidence, however. Our
standard for direct evidence requires statements that are not
"inherently ambiguous," Fernandes, 199 F.3d at 583. We require
statements that give us a "high degree of assurance" that a
termination was attributable to discrimination. Id. at 580.
Neither of the sets of statements in this case meets this test.
Both are subject to the interpretation that management fully
understood that appellant had a disability but could
not further abide appellant's gross and repeated absenteeism. A
decisionmaker’s mentioning of a disability in the context of an
adverse employment action cannot, without more, constitute direct
evidence of discrimination.3 Cf. id. at 583.

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employ a single standard of proof for all evidence. Although we
are not unsympathetic to the plight of a civil rights plaintiff
attempting to prove her case, the abundance of caselaw in this
circuit requires that we do not reconsider that duality here.
4 Rule 403 allows a court to exclude admissible evidence that
is more prejudicial than probative. See Fed. R. Evid. 403.
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B. Exclusion of the Maine Human Rights Commission’s Finding of
Discrimination
Appellant also assigns error to the district court’s refusal
to admit into evidence a right-to-sue letter from the Maine Human
Rights Commission ("MHRC"). At the outset, we must determine the
proper standard of review for the district court’s exclusion.
Appellant contends that because the district court routinely
excludes MHRC right-to-sue letters from the jury’s purview, its
decision applying that practice here must be reviewed de novo. For
support she cites S.E.C. v. Sargent, 229 F.3d 68, 79
(1st Cir. 2000), in which we noted that "the interpretation of the
Federal Rules of Evidence is a question of law which we review de
novo."
Appellant’s argument is flawed in that the district court’s
exclusion did not involve an interpretation of those rules. We
cannot discern a material difference between the district court’s
practice of excluding these types of letters in other cases and its
decision to apply that practice here. At bottom, the question is
one of relevancy and prejudice under Rule 403,4 and it is well-
settled that abuse of discretion is the proper standard to be
applied to such issues. See, e.g., Gen’l Elec. Co. v. Joiner,

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522 U.S. 136, 141 (1997); United States v. Bradshaw, 281 F.3d 278,
284 (1st Cir. 2002).
The MHRC right to sue letter pertinently stated:
The Commission has conducted an investigation of
the . . . complaint of discrimination and has determined
that there are reasonable grounds to believe that
unlawful discrimination has occurred. The decision was
based on information received during the course of
investigation of the complaint including the
Investigator’s Report, any written submissions, and any
oral presentations made.
Pursuant to § 4612(3) of the Maine Human Rights Act, the
Commission will endeavor to resolve the reasonable
grounds determination. A proposed Conciliation Agreement
will be forthcoming from the Commission’s Compliance
Officer. If no settlement is reached, the Maine Human
Rights Act authorizes the filing of a civil action in
Superior Court. * * * The Maine Human Rights Act provides
that you may pursue this matter on your own.
Appellant asks us to adopt a rule that "reasonable grounds
findings from the MHRC are per se admissible." For support, she
cites Plummer v. Western International Hotels Co., 656 F.2d 502,
505 (9th Cir. 1981). The Ninth Circuit’s determination of per se
admissibility of EEOC determinations cannot be squared with our
precedent. In Smith v. Massachusetts Institute of Technology, 877
F.2d 1106, 1113 (1st Cir. 1989), we considered the admissibility of
EEOC findings, and agreed with the Seventh Circuit that "a rule of
per se admissibility of the investigative file would clearly
undercut the district court’s function as independent fact-finder.
The better approach is to permit the district court to determine,
on a case-by-case basis, what, if any, EEOC investigator materials
should be admitted at trial." Id. (quoting Tulloss v. Near N.
Montessori Sch., 776 F.2d 150, 154 (7th Cir. 1985). Moreover,

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5 Appellant alternatively argues that even without a per se
rule, the district court’s exclusion of the MHRC letter constitutes
reversible error. Appellant does not explain how this letter, if
admitted, would have changed the jury’s outcome. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
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Smith concerned the admissibility of an investigative file,
containing statements and other evidence of the alleged
discrimination. Here, the right-to-sue letter states only a
conclusory probability of discrimination, unsupported by any
relevant facts, and thus on its surface lacks the probative content
of the excluded investigative file challenged in Smith.
The district court's routine exclusion of the MHRC letter is
consistent with Smith's stated approach. It seems to us that the
district court's exclusion reflects a tacit balancing under Rule
403. See United States v. De La Cruz, 902 F.2d 121, 123 n. 1 (1st
Cir. 1990). Although the findings of a fact-finding agency are
entitled to deference, see Blizard v. Fielding, 572 F.2d 13, 16
(1st Cir. 1978), we cannot say that the district court abuses its
discretion when it concludes that such an agency determination,
unaccompanied by relevant facts, tends to be more prejudicial than
probative.5
Affirmed.

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