                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0067p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 JOYCE A. WILLIAMS,
                                                      -
                                                      -
                                                      -
                                                          No. 03-1486
          v.
                                                      ,
                                                       >
 EAU CLAIRE PUBLIC SCHOOLS,                           -
                              Defendant-Appellee. -
                                                     N
                       Appeal from the United States District Court
                  for the Western District of Michigan at Grand Rapids.
                     No. 01-00233—Gordon J. Quist, District Judge.
                                         Argued: November 3, 2004
                                  Decided and Filed: February 10, 2005
        Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Judy E. Bregman, BREGMAN & WELCH, Grand Haven, Michigan, for Appellant.
Mark T. Ostrowski, KLUCZYNSKI, GIRTZ & VOGELZANG, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Judy E. Bregman, BREGMAN & WELCH, Grand Haven, Michigan, for
Appellant. Robert F. Mirque, Jr., KLUCZYNSKI, GIRTZ & VOGELZANG, Grand Rapids,
Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        ALICE M. BATCHELDER, Circuit Judge. Joyce Williams (“Williams”) appeals the jury’s
verdict in favor of the Eau Claire Public Schools (“Eau Claire”) on Williams’s claims, brought
pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 2000e (Title VII) and Michigan’s Elliot-Larsen Civil
Rights Act, MCL 37.2101, et seq., that Eau Claire refused to hire her as the Assistant Athletic
Director because of her gender, and refused to give her a raise in retaliation for her having filed with
the Equal Employment Opportunity Commission (“EEOC”) a charge of gender discrimination.
Before us in this appeal is Williams’s claim that the district court abused its discretion in refusing
to give the jury Williams’s proffered instructions on pretext. Because we find that the instructions
given by the district court comply with the law as pronounced by the Supreme Court in St. Mary’s

         *
          The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.


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No. 03-1486            Williams v. Eau Claire Public Schools                                          Page 2


Honor Center v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000), and because the instructions which Williams proffered do not correctly state that
law, we find no abuse of discretion, and AFFIRM the judgment of the district court.
                               Factual and Procedural Background
        Joyce Williams applied for and was denied the position of Assistant Athletic Director for the
Eau Claire Public Schools. She filed a charge of gender discrimination with the EEOC, and shortly
thereafter, she claims, she was denied a pay raise in her position as secretary to the High School
Principal and the Athletic Director. Williams then filed this action claiming gender discrimination
and retaliation in violation of federal and state law, and violations of the Fair Labor Standards Act
(“FLSA”) and the Equal Pay Act. Eau Claire moved for summary judgment on all of Williams’s
claims, and the district court granted the motion on the FLSA and Equal Pay claims, but denied it
as to the discrimination and retaliation claims, holding that Williams had presented sufficient
evidence to entitle her to trial on those claims.
        Prior to trial, Williams submitted proposed jury instructions on pretext, asking that the court
instruct the jury that if it found Eau Claire’s proffered reason for failing to hire Williams as Assistant
Athletic Director did not actually motivate its decision, that finding alone would permit the jury to
hold that Eau Claire had intentionally discriminated and retaliated against Williams. The specific
instructions Williams requested were as follows:
        Plaintiff’s Special Requested Instruction No. 2
                 Plaintiff must show that defendant intentionally discriminated against her.
        This means that Plaintiff must prove, by a preponderance of the evidence, that the
        defendant took adverse action against her “because of” her protected status as a
        woman under the statute I read to you. In other words, Plaintiff’s sex must have
        been a motivating factor in the defendant’s employment decision.
                 The term “motivating factor” means a consideration that moved defendant
        toward defendant’s decision. It is not necessary for the Plaintiff to prove that the
        Plaintiff’s sex was the sole or exclusive reason for the Defendant’s decision. It is
        sufficient if the Plaintiff proves that sex was a determinative consideration that made
        a difference in the Defendant’s decision.
                 However, plaintiff, Joyce Williams is not required to produce direct evidence
        of intentional discrimination. Intentional discrimination may be inferred from the
        existence of other facts. It may be proved exclusively by circumstantial evidence.
                 For example, in this case, Plaintiff claims that Defendant’s stated reason(s)
        for hiring a man for the job of Assistant/Athletic Director is [are] a pretext for its real
        reason, which she claims is sex discrimination. I instruct you that, you may conclude
        that the Plaintiff has met the burden of proving intentional discrimination if you do
        not believe the Defendant’s explanation for its actions.
        Plaintiff’s Proposed Special Instruction No. 13 (to follow or be incorporated into
        earlier No. 2)
                In order to convince you that the Defendant’s reasons for not hiring the
        Plaintiff as Assistant/AD and for later taking adverse employment action against her
        are pretexts, Plaintiff must show one of the following by a preponderance of the
        evidence:
                1) That the Defendant’s proffered reasons had no basis in fact; or
                2) That the Defendant’s proffered reasons did not actually motivate its
        employment action regarding the Plaintiff; or
                3) That the Defendant’s proffered reasons were insufficient to motivate its
        employment action regarding the Plaintiff.
No. 03-1486           Williams v. Eau Claire Public Schools                                         Page 3


                If you do not believe the reasons given by the Defendant for not hiring the
        Plaintiff as Assistant/AD and for later taking adverse employment action against her,
        you may, but are not required to, infer that the Defendant’s stated reasons are a
        pretext or a cover up for intentional discrimination. This is because you, as the
        factfinder are entitled to consider a party’s dishonesty about a material fact as
        affirmative evidence of guilt.
Williams cited Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), as authority for
the last paragraph of Proposed Instruction No. 13.
        Although Eau Claire did not object to these proposed instructions, the district court declined
to give them. Instead, noting that the issue in the case was not pretext but whether Williams had
proven intentional discrimination by Eau Claire, the judge instructed the jury that:
                If your experience tells you that certain evidence reasonably leads to a
        conclusion, you are free to reach that conclusion . . . .
                The burden is on plaintiff, Joyce A. Williams, to prove every essential
        element of a claim by a preponderance of the evidence. If the proof should fail to
        establish any essential element of the plaintiff’s claim by a preponderance of the
        evidence, you should find for the defendant as to that claim.
                To “establish by a preponderance of the evidence” means to prove that
        something is more likely so than not so. In other words, a preponderance of the
        evidence means such evidence as, when considered and compared with that opposed
        to it, has more convincing force and produces in your minds belief that what is
        sought to be proved is more likely true than not true. If, on any issue in this case, the
        evidence is equally balanced, you cannot find that the issue has been proved by a
        preponderance of the evidence.
                The rule does not, of course, require proof to an absolute certainty since proof
        to an absolute certainty is seldom possible in any case . . . .
                Members of the Jury, the plaintiff Joyce A. Williams claims that she was not
        hired as assistant athletic director at Eau Claire Public Schools because of her
        sex–female. The defendant denies that sex was a motivating factor in her not being
        hired.
                In order to succeed on her claim, the plaintiff must prove each of the
        following elements by a preponderance of the evidence:
                First, she was not hired as assistant athletic director of Eau Claire Public
        Schools, and
                Second, her sex was a motivating factor in the decision to not hire plaintiff
        as assistant athletic director; in other words, that the defendant had a discriminatory
        purpose or motive . . . .
                On the other hand, it is not necessary for the plaintiff to prove that her sex
        was the sole or exclusive reason for the employer’s decision. It is sufficient if the
        plaintiff proves that her sex was a motivating consideration that made a difference
        in the school district’s decision . . . .
The judge gave substantially similar instructions regarding Williams’s retaliation claim. Williams
preserved her objection to the trial court’s refusal to adopt her proposed instruction on pretext, or
any other instruction specifically mentioning pretext.
                                               Analysis
        We review for abuse of discretion a district court’s refusal to give requested jury instructions.
King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). To find an abuse of discretion we must
No. 03-1486            Williams v. Eau Claire Public Schools                                      Page 4


have a “definite and firm conviction that the trial court committed a clear error of judgment.”
Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996). We will reverse a judgment based on
inadequate jury instructions only “if the instructions, viewed as a whole, were confusing, misleading
and prejudicial.” Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1011 (6th Cir. 1987). In making
that determination, we consider whether the instructions “adequately inform the jury of the relevant
considerations and provide a basis in law for aiding the jury in reaching its decision.” Id. at 1010-
11. In other words, a district court’s refusal to give a jury instruction constitutes reversible error if:
(1) the omitted instruction is a correct statement of the law; (2) the instruction is not substantially
covered by other delivered charges; and (3) the failure to give the instruction impairs the requesting
party’s theory of the case. Webster v. Edward D. Jones & Co., 197 F.3d 815, 820 (6th Cir. 1999).
        Williams’s proposed instructions are an incomplete and therefore incorrect statement of the
law. The Supreme Court recognized in Reeves that “[i]n appropriate circumstances, the trier of fact
can reasonably infer from the falsity of the explanation that the employer is dissembling to cover
up a discriminatory purpose.” Reeves, 530 U.S. at 147 (emphasis added). The Court went on to
explain that the plaintiff’s prima facie case, together with sufficient evidence to support a finding
that the employer’s articulated reason for the adverse employment action is false, may suffice to
support a finding of liability, but it will not always be sufficient. Id. at 148. It is essential to
recognize, however, that the question before the Court in Reeves was whether, in order to avoid
judgment as a matter of law in favor of the defendant, a plaintiff is always required to adduce
evidence in addition to his prima facie case in order to prove discriminatory intent. Id. at 137. The
Court’s entire analysis of the issue was premised on the principle announced in St. Mary’s Honor
Center that “‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the
plaintiff’s explanation of intentional discrimination.’” Id. at 147 (quoting St. Mary’s Honor Center,
509 U.S. at 519 (emphasis in original)). Nothing in Reeves weakens or supplants that principle.
        Williams’s proposed instructions correctly state that if the jury does not believe Eau Claire’s
asserted non-discriminatory reasons, it may infer that those reasons are a cover-up for intentional
discrimination. Specifically, Williams’s Proposed Instruction No. 2 states, “you may conclude that
the Plaintiff has met the burden of proving intentional discrimination if you do not believe the
Defendant’s explanation for its actions.” Williams’s Proposed Instruction No.13 states:
        If you do not believe the reasons given by the Defendant for not hiring the Plaintiff
        as Assistant/AD and for later taking adverse employment action against her, you
        may, but are not required to, infer that the Defendant’s stated reasons are a pretext
        or a cover up for intentional discrimination. This is because you, as the factfinder
        are entitled to consider a party’s dishonesty about a material fact as affirmative
        evidence of guilt.
Neither singly nor in combination do these instructions inform the jury that such an inference is
permissible only if the evidence also supports a finding that Eau Claire intentionally discriminated
against Williams on the basis of a prohibited criterion, the ultimate issue in the case and the issue
on which Williams bears the burden of proof. St. Mary’s Honor Center, 509 U.S. at 511. In sum,
because Williams’s proposed instructions do not inform the jury that in order to return a verdict in
her favor it must not only find Eau Claire’s articulated reason false, but it must also believe
Williams’s claim that Eau Claire was in fact motivated by considerations of gender, Williams’s
instructions are not a correct statement of the law.
        Unlike Williams’s proposed instructions, the instructions which the district court gave
“adequately inform[ed] the jury of the relevant considerations and provide[d] a basis in law for
aiding the jury in reaching its decision.” Kitchen, 825 F.2d at 1010-11. Like Williams’s Proposed
Instruction No. 2, the court’s instructions informed the jury that the relevant consideration in
Williams’s sex discrimination claim was whether Eau Claire “had a discriminatory purpose or
No. 03-1486           Williams v. Eau Claire Public Schools                                     Page 5


motive.” The instructions given by the court, however, specifically instructed the jury that in order
to return a verdict for Williams, it must find that Williams had shown “by a preponderance of the
evidence” that Eau Claire had been motivated, at least in part, by her sex. The judge defined
preponderance of the evidence as “such evidence as, when considered and compared with that
opposed to it, has more convincing force and produces in your minds belief that what is sought to
be proved is more likely true than not true.” The judge also instructed the jury that “if your
experience [and common sense] tells you that certain evidence reasonably leads to a conclusion, you
are free to reach that conclusion.”
       These instructions accurately and adequately instructed the jury as to both the elements and
the burden of proof in the case. We hold that it is not necessary that these instructions be cast in the
language of pretext or the framework of shifting burdens of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), as Williams contends, in order for them to be adequate, accurate and complete.
       For all of the foregoing reasons we AFFIRM the judgment of the district court.
