Kin Gibson v. City of Louisville

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0233P (6th Cir.)
File Name: 03a0233p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KIN GIBSON,
Plaintiff-Appellant,
v.
CITY OF LOUISVILLE,
Defendant-Appellee.
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No. 02-5473
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 99-00324—John G. Heyburn II, Chief District Judge.
Argued: April 14, 2003
Decided and Filed: July 17, 2003
Before: SILER, GILMAN, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Timothy R. McCarthy, NUTT & MAYER,
Louisville, Kentucky, for Appellant. Angela T. Dunham,
JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville,
Kentucky, for Appellee. ON BRIEF: Timothy R.
McCarthy, NUTT & MAYER, Louisville, Kentucky, for
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Appellant. Angela T. Dunham, JEFFERSON COUNTY
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
_________________
OPINION
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RONALD LEE GILMAN, Circuit Judge. Kin Gibson was
terminated from his job with the City of Louisville in 1998.
Gibson sued the City, arguing that he was fired in retaliation
for requesting leave under the Family and Medical Leave Act
(FMLA). The jury returned a verdict in favor of the City.
Gibson now appeals, contending that the district court’s
instruction to the jury contained an inaccurate statement of the
law. For the reasons set forth below, we AFFIRM the
judgment of the district court.
I. BACKGROUND
Gibson claimed that he was terminated in retaliation for
requesting family medical leave to undergo back surgery, in
violation of the FMLA, 29 U.S.C. §§ 2601-2654. The City
disagreed, contending instead that his termination resulted
from insubordination, leaving his workstation without
permission, and being absent from work without authorization
for three days. Over Gibson’s objection, the district court
instructed the jury that “[y]ou must answer the following
question: do you find from the evidence that the City of
Louisville terminated Kin Gibson from his job because he
requested FMLA leave?” The jury found in favor of the City.
On appeal, Gibson argues that the above instruction was an
inaccurate statement of the relevant law. He thus requests
that the judgment entered by the district court on the jury
verdict be reversed and that a new trial be granted.

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No. 02-5473 Gibson v. City of Louisville 3
II. ANALYSIS
A. Standard of review
This court reviews jury instructions to determine whether
they are a correct interpretation of the relevant law. Rogers
v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir.
2002). We look at them “as a whole to determine whether
they adequately inform the jury of relevant considerations and
provide a basis in law for the jury to reach its decision.”
Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 263
(6th Cir. 2000). Because the correctness of jury instructions
is a question of law, they are reviewed de novo. Jones v.
Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir.
1998).
B. The jury instructions, taken as a whole, adequately
interpreted the relevant law
Gibson urges us to set aside the judgment against him
because the jury instructions allegedly contained an
inaccurate statement of the law. Specifically, he contends that
the “because” language quoted above misled the jury into
believing that retaliation for the exercise of his rights under
the FMLA had to be the sole reason for his termination.
Gibson argues that something more akin to a “mixed-motive
analysis” must be used in the jury instructions, so that the
retaliation need only be a factor (not the factor) in the
termination decision. The mixed-motive analysis permits a
finding of liability where the employer is motivated by both
unlawful considerations and legitimate reasons. Desert
Palace v. Costa, 123 S. Ct. 2148 (2003) (holding that direct
evidence is not required in order to prove discrimination in
mixed-motive cases under Title VII); Price Waterhouse v.
Hopkins, 490 U.S. 228, 240-41 (1989) (plurality opinion)
(applying the mixed-motive analysis in a gender
discrimination case based on a failure to promote).
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In making this argument, Gibson primarily relies on the
Seventh Circuit case of King v. Preferred Technical Group,
166 F.3d 887 (7th Cir. 1999) (reversing the district court’s
grant of summary judgment for the employer because the
employee had made out a prima facie case of FMLA
retaliation and had raised a genuine issue of material fact
regarding the employer’s proffered nondiscriminatory reason
for terminating her). The court in King used language found
in the Code of Federal Regulations to state that “an employer
may not consider the taking of FMLA leave as a negative
factor in employment actions.” Id. at 891; see 29 C.F.R.
§ 825.220(c). Gibson uses the negative-factor language to
argue that he does not have to prove that retaliation was the
“sole reason” for his termination, but only that it was a
motivating or substantial factor in that decision.
He is correct in so far as he argues that he did not need to
prove that discrimination was the sole reason for his
termination. But to say that the City fired Gibson “because he
requested FMLA leave” does not answer the question of
whether the action was taken “solely because of” or only “in
part because of” his request. In order to answer this question,
we must analyze the jury instructions as a whole to determine
whether they adequately directed the jury to focus on the
ultimate issue in this case—whether Gibson’s termination
was motivated by his FMLA request.
In Skrjanc v. Great Lakes Power Service Company, 272
F.3d 309 (6th Cir. 2001), this court held that the McDonnell
Douglas burden-shifting framework should be applied to
FMLA retaliation claims that are based upon indirect
evidence. Id. at 315. Whether Gibson’s case consisted of
direct or indirect evidence or some combination of the two is,
for the reasons discussed below, ultimately irrelevant. The
district court, however, used the McDonnell Douglas
framework in instructing the jury. Under McDonnell
Douglas, a plaintiff relying upon indirect evidence of
unlawful discrimination must first establish a prima facie
case. The employer then has the burden of articulating a

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No. 02-5473 Gibson v. City of Louisville 5
legitimate nondiscriminatory reason for the adverse
employment action. Finally, the plaintiff must show that this
nondiscriminatory reason was in fact pretextual and that
unlawful discrimination was the real reason for the adverse
action. Id.; see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 153-54 (2000) (holding, in an age-
discrimination action, that the establishment of a prima facie
case and sufficient evidence of pretext may permit the trier of
fact to find unlawful discrimination).
“The ultimate question in every employment discrimination
case involving a claim of disparate treatment is whether the
plaintiff was the victim of intentional discrimination.”
Reeves, 530 U.S. at 153. Once Gibson had established his
prima facie case and the City had come forth with its
legitimate nondiscriminatory reasons, the McDonnell Douglas
burden-shifting framework fell away and the trier of fact was
left to determine the ultimate question of discrimination. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-511 (1993)
(“If . . . the defendant has succeeded in carrying its burden of
production, the McDonnell Douglas framework—with its
presumptions and burdens—is no longer relevant.”).
In other words, once the case was submitted to the trier of
fact, the legal framework used and the question of whether
Gibson’s proof contained direct or circumstantial evidence
became irrelevant. The jury’s task at that point was to simply
determine whether or not unlawful discrimination was the real
reason for the adverse employment action. Regardless of the
framework used for presenting the proof, the underlying
substantive law is the same. Desert Palace v. Costa, 123 S.
Ct. 2148 (2003) (holding, in a mixed-motive employment
discrimination case that, regardless of the presentation of
direct or circumstantial evidence, the plaintiff must prove that
unlawful discrimination was a motivating factor in the
employment decision by a preponderance of the evidence).
This is precisely the view of the law that the district court’s
jury instructions, taken as a whole, reflected. Gibson had
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established his prima facie case of unlawful discrimination.
Consequently, the jury instructions focused on the last two
parts of the McDonnell Douglas framework by advising the
jury of the considerations to take into account in deciding
whether Gibson had proven that he was unlawfully
discriminated against. First, the district court quoted the
language of the FMLA and informed the jury that “it would
have been unlawful for the City of Louisville to terminate
[Gibson] in retaliation for exercising or attempting to exercise
his rights under the statute.” The jury was then asked the
question that is the focus of Gibson’s appeal, i.e., “do you
find from the evidence that the City of Louisville terminated
Kin Gibson from his job because he requested FMLA leave?”
This question was immediately followed by a discussion of
points to keep in mind when answering it. The district court
reminded the jury of the reasons proffered by the City of
Louisville for his termination—the legitimate
nondiscriminatory reasons—and it told the jury that “in order
to return a verdict in favor of Mr. Gibson, you must believe
from [the] evidence that those were not the City’s actual
reasons for discharging Mr. Gibson.”
Perhaps the instructions in the present case would have
been more precise if they had explicitly said that Gibson need
show that requesting FMLA leave was only “a determining
and motivating factor” in the City’s decision. Reeves, 530
U.S. at 153 (emphasis added). The lack of such language,
however, did not cause the instructions overall to be an
inaccurate statement of the law in the present case. Indeed,
the Supreme Court has held that the use of the words
“because of” in Title VII do not mean “solely because of.”
Price Waterhouse, 490 U.S. at 241. There is no question that
the jury was told to determine whether the City’s proffered
reasons were its true motivation, or whether it was motivated
by unlawful discrimination in terminating Gibson; i.e., was
Gibson fired “because he requested FMLA leave?” In other
words, the jury was clearly charged with answering the
ultimate question—whether Gibson was the victim of
unlawful discrimination in violation of the FMLA.

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No. 02-5473 Gibson v. City of Louisville 7
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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