           United States Court of Appeals
                       For the First Circuit

No. 17-1049

                         MOIRA E. TEIXEIRA,

                       Plaintiff, Appellant,

                                 v.

          TOWN OF COVENTRY, by and through its Treasurer,
                     THEODORE PRZYBYLA, ET AL.,

                       Defendants, Appellees.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF RHODE ISLAND

         [Hon. John J. McConnell, Jr., U.S. District Judge]


                               Before

                       Lynch, Circuit Judge,
                    Souter, Associate Justice,
                     and Selya, Circuit Judge.


     Mark P. Gagliardi and Law Office of Mark P. Gagliardi on brief
for appellant.
     Marc DeSisto, Kathleen A. Hilton, DeSisto Law LLC, Nicholas
Gorham, and Gorham & Gorham on brief for appellees.


                          February 7, 2017




     
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
              SELYA, Circuit Judge.        The McDonnell Douglas framework,

see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973),

has proven to be a useful tool in the adjudication of pretrial

motions       (especially    at     the     summary      judgment     stage)     in

discrimination and retaliation cases. See, e.g., Burns v. Johnson,

829 F.3d 1, 8 (1st Cir. 2016) (discrimination); Henry v. United

Bank,   686    F.3d   50,   55    (1st    Cir.   2012)   (retaliation).        Jury

instructions, however, are a different medium, and some courts

have expressed concern about the suitability of the McDonnell

Douglas framework for that purpose.                See, e.g., Sharkey v. Lasmo

(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000) (expressing the view

that "[i]nstructing the jury on [the] complex process [of McDonnell

Douglas   burden-shifting]         produces      no   benefit   and    runs    the

unnecessary risk of confusing the jury"); Loeb v. Textron, Inc.,

600 F.2d 1003, 1016 (1st Cir. 1979) (warning that reading McDonnell

Douglas's "technical aspects to a jury . . . will add little to

the juror's understanding of the case").

              In our view, the McDonnell Douglas framework can, in the

trial court's discretion, be put to effective use in the shaping

of jury instructions.        The key, we think, is for the trial court

to refrain from rote recitation of the complex McDonnell Douglas

process and the legalistic terms in which the McDonnell Douglas

framework is typically couched.             Thus, a trial court that wishes

to use the framework as part of its jury instructions should

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translate it into everyday parlance and fit it to the facts and

circumstances of a particular case.                   Here, the court below did

just that.

             Given the satisfactory nature of the district court's

jury    instructions      as    a     whole,    we    discern   no   merit    in   the

appellant's claims of error.             Accordingly, we affirm the judgment

below.

I.    BACKGROUND

             We briefly rehearse the facts and travel of the case.

Plaintiff-appellant Moira E. Teixeira toiled as a social worker

for    the   Town   of    Coventry,      Rhode       Island   (the   Town),   in   its

Department of Human Services.                Over the course of roughly three

years, the appellant took three medical leaves, comprising nearly

eight months in aggregate leave time.                   Matters came to a head on

June 14, 2013: as the appellant returned from her latest leave,

she was fired.       The Town represented that her dismissal was based

on    poor   job    performance       (including        violations   of    department

protocols, breaches of confidentiality, and repeated failures to

complete work assignments).

             Displeased        with    the     Town's    actions,    the    appellant

repaired to the federal district court and sued both the Town and

her    supervisor,       Patricia      Shurtleff.         Her   complaint     alleged

violations of federal and state law, including the Family and

Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2619, and the Rhode


                                         - 3 -
Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1.

Specifically, she claimed that she had been both retaliated against

for taking medical leave and discriminated against on account of

disability.1

          Following   extensive    discovery    and   a   week-long   jury

trial, the district court sent the case to the jury.                  With

reference to the FMLA and RICRA counts, the court instructed the

jury using an adapted version of the McDonnell Douglas framework

(over the appellant's objection).         After deliberating, the jury

returned a take-nothing verdict in favor of the defendants.

          The appellant moved for a new trial, lodging (inter alia)

two claims of instructional error in connection with the FMLA and

RICRA counts: she asserted that the district court had erred in

employing the McDonnell Douglas framework in its jury instruction

and that the court had erred when it instructed the jury to

consider whether the appellant had shown that the defendants'

reasons for cashiering her were pretextual.           The district court

found no fault with the instructions it had given and denied the

motion for a new trial.   This timely appeal ensued.




     1 The appellant's complaint also contained two other counts.
Because her appeal is limited to her FMLA and RICRA claims, we
omit any discussion of the other counts.


                                  - 4 -
II.   ANALYSIS

           The appellant brought her motion for a new trial under

Federal Rule of Civil Procedure 59(a).       In effect, that rule

authorizes a district court to override a jury verdict and order

a new trial "if the verdict is against the law, against the weight

of the credible evidence, or tantamount to a miscarriage of

justice." Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006).

We review a district court's denial of a motion for a new trial

for abuse of discretion.   See Ira Green, Inc. v. Military Sales &

Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014).    Here, the district

court's denial of the appellant's new trial motion was predicated

upon its rejection of the appellant's claims of instructional

error.   A verdict that results from prejudicial error in jury

instructions is a verdict that is against the law and, therefore,

the denial of a new trial motion in the face of such an error is

an abuse of discretion.    See id.

           We "afford de novo review to 'questions as to whether

jury instructions capture the essence of the applicable law, while

reviewing for abuse of discretion . . . the court's choice of

phraseology.'"   Id. (quoting DeCaro v. Hasbro, Inc., 580 F.3d 55,

61 (1st Cir. 2009)).   Unpreserved claims of instructional error,

though, are reviewed only for plain error.    See United States v.

Deppe, 509 F.3d 54, 58 (1st Cir. 2007).




                                - 5 -
            Against this backdrop, we turn to the appellant's twin

claims of instructional error.                 Because those claims trigger

different standards of review, we discuss them separately.

                      A.    The McDonnell Douglas Claim.

            Some general principles inform our consideration of the

appellant's     primary      claim.      As    we   have   explained,    "[j]ury

instructions are intended to furnish a set of directions composing,

in the aggregate, the proper legal standards to be applied by lay

jurors in determining the issues that they must resolve in a

particular case."          United States v. DeStefano, 59 F.3d 1, 2 (1st

Cir. 1995).     So long as the court's jury instructions accomplish

this    task,   its    "choice   of    language     is   largely   a   matter   of

discretion."     Id.

            The appellant argues that the district court erred by

including the McDonnell Douglas framework in its charge to the

jury.    This framework, she says, was apt to have confused the

jurors and may well have caused them to return an inadvertent

verdict.    Taken in context, the appellant's plaint is not that the

district court incorrectly instructed the jury on the law but,

rather, that the court's instructions were made unduly confusing

by its allusion to the McDonnell Douglas framework.                This claim of

error was seasonably raised at trial and, as a result, our review

is for abuse of discretion.           See Deppe, 509 F.3d at 58.




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              We need not tarry.       The Supreme Court's development of

the McDonnell Douglas framework is a landmark in the realm of

discrimination law.      In this landmark decision, the Court did not

restrict the use of the McDonnell Douglas framework to pretrial

motions.      Since then, lower courts routinely have signaled their

approval of the use of adapted versions of the McDonnell Douglas

framework to help jurors understand their roles in determining the

merits   of    discrimination    and    retaliation   cases.         See,   e.g.,

McDonough v. City of Quincy, 452 F.3d 8, 17 (1st Cir. 2006)

(retaliation); Rodriguez-Torres v. Carib. Forms Mfr., Inc., 399

F.3d 52, 58 (1st Cir. 2005) (discrimination).                 We know of no

authority     categorically     forbidding   the   use   of    the    McDonnell

Douglas framework in the formulation of jury instructions.                  Nor do

we favor any such categorical prohibition.

              To be sure, some courts have worried that rote recitation

of the McDonnell Douglas framework may be confusing to a jury,

see, e.g., Sharkey, 214 F.3d at 374; Loeb, 600 F.2d at 1016, and

we do not quarrel with that limited proposition.2             But in the case


     2 We note that even those courts that have expressed concern
about the use of the McDonnell Douglas framework in jury
instructions have, by and large, declined to find reversible error.
See, e.g., Sharkey, 214 F.3d at 374; Dudley v. Wal-Mart Stores,
Inc., 166 F.3d 1317, 1322 (11th Cir. 1999); Messina v. Kroblin
Transp. Sys., Inc., 903 F.2d 1306, 1308-09 (10th Cir. 1990). But
cf. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 118 (2nd Cir.
2000) (reversing and remanding on multiple grounds including
unexpurgated use of McDonnell Douglas framework in jury
instructions).


                                    - 7 -
at hand, no such rote recitation took place: the district court

used   simple     language    and    avoided    the   technical    phrases   that

populate the McDonnell Douglas framework — phrases such as "prima

facie case" and "presumption."             These are the sort of phrases that

have prompted expressions of concern in the cases upon which the

appellant relies.         See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372,

381-82 (2d Cir. 1994); Loeb, 600 F.2d at 1016.                         Equally as

important, the district court provided the jury with a thoughtful,

thorough, and easily understandable explanation of the relevant

legal concepts.       No more was exigible to palliate any realistic

prospect of jury confusion.

               In an attempt to throw cold water on this reasoning, the

appellant points to a compilation of pattern jury instructions.

See    Draft    Pattern    Jury   Instructions      for   Cases   of   Employment

Discrimination (Disparate Treatment) for the District Courts of

the    First     Circuit     (Mar.    1,    2011)     (Pattern    Instructions),

http://www.rid.uscourts.gov/menu/judges/jurycharges/OtherPJI/1st

%20Circuit%20Pattern%20Civil%20Jury%20Instructions%20Employment%

20Discrimination.pdf.         She notes that this compilation suggests

that it is usually unnecessary for a district court to describe

the McDonnell Douglas framework to a jury.                  See id. at 8 n.1

(suggesting that "there is no reason to instruct on McDonnell

Douglas burden shifting; that procedure . . . is likely only to

confuse jurors" and adding that use of McDonnell Douglas for that


                                       - 8 -
purpose "can result in error unless great care is taken to conform

it to the facts of the case").               This is grasping at straws: a

compilation of pattern instructions is merely an informal guide,

which "does not in any way curtail" the "wide discretion" enjoyed

by a district court to "instruct in language that it deems most

likely to ensure effective communication with jurors."                     United

States v. Gomez, 255 F.3d 31, 39 n.7 (1st Cir. 2001).                      Though

pattern instructions may be a useful reference point, they are not

binding.         See   id.;   see   also    Pattern     Instructions,      preface

(cautioning that the pattern instructions are "simply a proposal"

and that "[n]either the Court of Appeals nor any District Court

within     the    circuit     has   in    any    way   approved"   their     use).

Consequently, declining to follow a pattern instruction in a

particular case is not error per se.               See Gomez, 255 F.3d at 39

n.7.

             That ends this leg of our journey.           We conclude, without

serious question, that the appellant has not shown that the

district court abused its discretion by including in its jury

instructions a custom-tailored adaptation of the McDonnell Douglas

framework.       Read in their entirety, the instructions tasked the

jury, in simple and easily understood language, with resolving the

overarching issue in the case: whether or not the defendants took

adverse employment actions against the appellant based on either

a retaliatory or discriminatory animus.


                                         - 9 -
                        B.    The Pretext Claim.

            The appellant's remaining claim of error posits that the

district court erred in instructing the jury that, even if the

jury found that the appellant had proven the elements of her prima

facie case, it would still have to consider whether the defendants'

proffered     reasons   for     firing     her   were     legitimate   and

nondiscriminatory and, if so, whether those reasons were "merely

[a] pretext."     Because the appellant never interposed any such

objection at trial, see Fed. R. Civ. P. 51(c)(2), our review is

for plain error, see Deppe, 509 F.3d at 58; Colón-Millín v. Sears

Roebuck de P.R., Inc., 455 F.3d 30, 41 (1st Cir. 2006).

            The plain-error rubric is familiar.         Under this rubric,

a party advancing an unpreserved claim of error must establish

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."        United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).       The proponent of plain error bears

the burden of persuasion as to each of these four elements.            See

United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); Cipes v.

Mikasa, Inc., 439 F.3d 52, 56 (1st Cir. 2006).

            We long have cautioned that "the plain error hurdle is

high."   United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.

1989).      Nowhere is this hurdle higher than in instances in which


                                  - 10 -
an appellant relies on a claim of instructional error; in such

instances, reversals are hen's-teeth rare.             See United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001); Wells Real

Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809-

10 (1st Cir. 1988).         This hard-to-achieve standard makes good

sense: timely and specific objections to jury instructions "enable

a trial court to correct any . . . mistakes before the jury retires"

and, thus, avoid the necessity for a costly retrial.                Jones v.

United States, 527 U.S. 373, 387-88 (1999).

              Here, it is doubtful whether the district court's use of

the pretext language was error at all, let alone clear or obvious

error.3      In all events, we believe that the most straightforward

way to dispose of the appellant's claim of error is to focus on

the third element of the plain-error standard: whether the alleged

error affected the appellant's substantial rights.                 Satisfying

this       element   requires   the   appellant   to    show   a   reasonable

probability that, but for the alleged error, the verdict would




       3
       Federal courts regularly consider pretext in resolving FMLA
claims. See, e.g., Ameen v. Amphenol Printed Circuits, Inc., 777
F.3d 63, 70 (1st Cir. 2015); Henry, 686 F.3d at 55-58. By the
same token, the Rhode Island Supreme Court has stated that, once
the elements of a prima facie case have been established in a RICRA
employment discrimination case, the employer "must offer a
legitimate, nondiscriminatory reason for discharging th[e]
employee and then the employee must convince the fact-finder that
the reason offered by the employer is a pretext for discriminatory
animus." Poulin v. Custom Craft, Inc., 996 A.2d 654, 659 (R.I.
2010) (internal quotation mark omitted).


                                      - 11 -
have been different.     See Bramley, 847 F.3d at 7.       As we explain

below, the appellant has not come close to making this showing.

           We start with a negative. The appellant does not contend

that it was inappropriate for the jury to consider whether the

defendants'   articulated      reasons    for   discharging     her   were

pretextual. Her assignment of error is much more narrowly cabined:

she only contends that the jury's consideration of pretext should

have taken place as part of its determination about whether she

had proven the elements of her prima facie case.


           There is a fatal flaw in this contention.       The appellant

has not offered any developed argumentation that would lead us to

conclude that the outcome of the trial would have been different

if the district court had moved the pretext instruction into an

earlier   portion   of   the   charge.4    This   dearth   of   developed

argumentation is not surprising: no matter where the pretext

instruction was placed within the four corners of the charge, the

jury ultimately had to determine whether a discriminatory or

retaliatory animus motivated the defendants to fire the appellant.




     4 Indeed, the appellant has not even made the trial transcript
part of the record on appeal. See Fed. R. App. P. 10(b); Real v.
Hogan, 828 F.2d 58, 60-61 (1st Cir. 1987). The absence of such a
transcript makes it surpassingly difficult to prevail on the sort
of nuanced argument that the appellant advances. See Real, 828
F.2d at 60-61 (explaining that "it is the appellant who must bear
the brunt of an insufficient record on appeal").


                                 - 12 -
Whether or not the defendants' articulated reasons for the firing

were pretextual was highly relevant to that determination.

              In the last analysis, an argument premised on plain error

cannot       succeed    without    "some     level     of    certainty   and

particularity."        Id.   Here, the appellant offers us neither

certainty nor particularity.        Given this vacuum, plain error is

plainly absent.        The appellant simply has not shown that the

outcome of the trial would likely have changed had the district

court rearranged the components of the charge.               See Jones, 527

U.S. at 394-95 (stating that "[w]here the effect of an alleged

error is so uncertain, a [party] cannot meet his burden of showing

that   the     error   actually   affected   his     substantial   rights");

Bramley, 847 F.3d at 8 (explaining that guesswork and speculation

are insufficient to satisfy an appellant's burden in connection

with the third element of plain-error review).              After all, there

is no reason to believe that had the deck chairs on the Titanic

been rearranged, the ship's voyage would have had a more auspicious

ending.

III.   CONCLUSION

              We need go no further.   Since we have concluded that the

appellant's claims of instructional error lack force, it follows

inexorably that the district court did not abuse its discretion in

denying the appellant's motion for a new trial.



Affirmed.




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