Winning the battle, losing the war

A bad jury instruction is not always enough to win the appeal. That is the lesson learned from a ruling by the Court of Appeals in an employment discrimination case.

The case is Mobasher v. Bronx Community College, decided on March 13. At trial, the judge instructed the jury on the elements of a prima facie case under Title VII. The prima facie case is the first step in determining if the plaintiff has a case, and it asks, i.e., whether the plaintiff suffered an "adverse employment action" (such as significant demotion or termination or pay cut) and whether he was fired or demoted under circumstances creating an inference of employment discrimination. If the plaintiff makes out a prima facie case, then under the so-called McDonnell-Douglas burden-shifting scheme, the employer can defend itself by articulating the reason for the discharge or demotion. The plaintiff's duty at trial is to show that that reason is false and that the real reason was discrimination. We call this the "pretext inquiry."

This complicated burden-shifting test is so complicated that the Court of Appeals has over the years ruled that the jury should not untangle the prima facie inquiry, only the pretext inquiry. This is partly because the pretext inquiry is really where the action is, and the prima facie inquiry is preliminary. Important, but still preliminary. The judge makes the determination whether the plaintiff has a prima facie case.

What do you do if the judge ignores Second Circuit authority and instructs the jury to decide the prima facie inquiry, and then you lose the trial? You appeal. But the Court of Appeals will probably handle the appeal the way it did in the Mobasher case. It will remind us that the trial judge should not instruct the jury to answer the prima facie inquiry. But it will also find that the error was harmless and that there was enough evidence for the plaintiff to lose the trial on other grounds. Here is the crux of the Second Circuit's analysis:

The District Court’s instructions were indeed erroneous. First, those instructions took the jury through each step of the McDonnell Douglas burden-shifting framework, which we have said “undoubtedly constitutes error.” Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 758 (2d Cir. 2004). The language used in the traditional McDonnell Douglas formulation, “developed by appellate courts for use by judges,” “is at best irrelevant, and at worst misleading to a jury.” Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)

It's difficult to win an appeal after you lose the trial in a case alleging employment discrimination as the jury is allowed to believe whatever witnesses it wants, including witnesses testifying that the plaintiff was a bad worker and that discrimination had nothing to do with his termination. So in an appeal like this, the plaintiff wins the battle by getting a ruling from the Court of Appeals that the jury instructions were incorrect. But he loses the war, because it's not enough for another trial.

The plaintiff in this case had a separate objection on appeal. The Court of Appeals rejected that objection also. The employer tried to prove that it did not discriminate against the plaintiff because it has hired other black employees. This is a common defense argument at trial, but you don't see it reflected in too many court rulings. Without citing any case law to support this well-known defense, the Court of Appeals held that the trial court did not abuse its discretion in allowing this evidence at trial, as it tended to prove that the employer did not discriminate against the plaintiff.