SW Legal studies in Business

Trial Judge Need Not Give Jury Instructions Demanded by Plaintiff

Appeals court held that a trial judge gave proper instructions to a jury in a discrimination suit. The judge gave a basic explanation of what was needed for the plaintiff to prevail, but would not give instructions requested by the plaintiff. That decision was for the trial judge to make.

Topic Employment Discrimination
Key Words

Race Discrimination; Pretext Instructions; Elements

C A S E   S U M M A R Y

Browning worked for the IRS for 14 years. She was a team leader responsible for monitoring several employees. Her supervisor rated her performance as not having met expectations because she did not complete the number of reviews required. She was placed on a 60-day performance improvement plan and met weekly with her supervisor. At the end of the period, the supervisor held that her performance was still inadequate and recommended that she be demoted. After review, she was demoted and filed a complaint for race discrimination. The EEO found that no discrimination occurred, but Browning proceeded to file suit. Browning requested that the following permissive pretext instruction be given to the jury: “Consistent with the general principle of law that a party’s dishonesty about a material fact may be considered as affirmative evidence of guilt, if you find that the defendants’ explanation about why they took adverse action against a plaintiff is not worthy of belief, you may infer a discriminatory or retaliatory motive from that fact.” The trial court refused to give that instruction; Browning appealed.


Affirmed. The district court’s refusal to give an instruction explicitly addressing pretext is not a reversible error. The judge gave an instruction that set forth the essential elements of the claims and the burden on the parties. It was up to the plaintiff to make clear to the jury that it could find the employer’s reasons for demotion to be pretextual and thereby infer unlawful motive or discrimination. But the court need not use the language demanded by the plaintiff in its instructions.


Browning v. U.S., 567 F.3d 1038 (9th Cir., 2009)

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