        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    Gibson v. City of Louisville                 No. 02-5473
   ELECTRONIC CITATION: 2003 FED App. 0233P (6th Cir.)
                File Name: 03a0233p.06                    Appellant. Angela T. Dunham, JEFFERSON COUNTY
                                                          ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________
                                                             RONALD LEE GILMAN, Circuit Judge. Kin Gibson was
 KIN GIBSON ,                     X                       terminated from his job with the City of Louisville in 1998.
                                   -                      Gibson sued the City, arguing that he was fired in retaliation
          Plaintiff-Appellant,
                                   -                      for requesting leave under the Family and Medical Leave Act
                                   -  No. 02-5473         (FMLA). The jury returned a verdict in favor of the City.
            v.                     -                      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
 CITY OF LOUISVILLE ,              -
           Defendant-Appellee. -                          judgment of the district court.
                                  N                                           I. BACKGROUND
       Appeal from the United States District Court
    for the Western District of Kentucky at Louisville.     Gibson claimed that he was terminated in retaliation for
 No. 99-00324—John G. Heyburn II, Chief District Judge.   requesting family medical leave to undergo back surgery, in
                                                          violation of the FMLA, 29 U.S.C. §§ 2601-2654. The City
                 Argued: April 14, 2003                   disagreed, contending instead that his termination resulted
                                                          from insubordination, leaving his workstation without
            Decided and Filed: July 17, 2003              permission, and being absent from work without authorization
                                                          for three days. Over Gibson’s objection, the district court
Before: SILER, GILMAN, and GIBBONS, Circuit Judges.       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.
                      COUNSEL                             On appeal, Gibson argues that the above instruction was an
                                                          inaccurate statement of the relevant law. He thus requests
ARGUED: Timothy R. McCarthy, NUTT & MAYER,                that the judgment entered by the district court on the jury
Louisville, Kentucky, for Appellant. Angela T. Dunham,    verdict be reversed and that a new trial be granted.
JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville,
Kentucky, for Appellee. ON BRIEF: Timothy R.
McCarthy, NUTT & MAYER, Louisville, Kentucky, for


                           1
No. 02-5473                 Gibson v. City of Louisville     3    4    Gibson v. City of Louisville                No. 02-5473

                      II. ANALYSIS                                   In making this argument, Gibson primarily relies on the
                                                                  Seventh Circuit case of King v. Preferred Technical Group,
A. Standard of review                                             166 F.3d 887 (7th Cir. 1999) (reversing the district court’s
                                                                  grant of summary judgment for the employer because the
   This court reviews jury instructions to determine whether      employee had made out a prima facie case of FMLA
they are a correct interpretation of the relevant law. Rogers     retaliation and had raised a genuine issue of material fact
v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir.           regarding the employer’s proffered nondiscriminatory reason
2002). We look at them “as a whole to determine whether           for terminating her). The court in King used language found
they adequately inform the jury of relevant considerations and    in the Code of Federal Regulations to state that “an employer
provide a basis in law for the jury to reach its decision.”       may not consider the taking of FMLA leave as a negative
Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 263      factor in employment actions.” Id. at 891; see 29 C.F.R.
(6th Cir. 2000). Because the correctness of jury instructions     § 825.220(c). Gibson uses the negative-factor language to
is a question of law, they are reviewed de novo. Jones v.         argue that he does not have to prove that retaliation was the
Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir.         “sole reason” for his termination, but only that it was a
1998).                                                            motivating or substantial factor in that decision.
B. The jury instructions, taken as a whole, adequately               He is correct in so far as he argues that he did not need to
   interpreted the relevant law                                   prove that discrimination was the sole reason for his
                                                                  termination. But to say that the City fired Gibson “because he
   Gibson urges us to set aside the judgment against him          requested FMLA leave” does not answer the question of
because the jury instructions allegedly contained an              whether the action was taken “solely because of” or only “in
inaccurate statement of the law. Specifically, he contends that   part because of” his request. In order to answer this question,
the “because” language quoted above misled the jury into          we must analyze the jury instructions as a whole to determine
believing that retaliation for the exercise of his rights under   whether they adequately directed the jury to focus on the
the FMLA had to be the sole reason for his termination.           ultimate issue in this case—whether Gibson’s termination
Gibson argues that something more akin to a “mixed-motive         was motivated by his FMLA request.
analysis” must be used in the jury instructions, so that the
retaliation need only be a factor (not the factor) in the            In Skrjanc v. Great Lakes Power Service Company, 272
termination decision. The mixed-motive analysis permits a         F.3d 309 (6th Cir. 2001), this court held that the McDonnell
finding of liability where the employer is motivated by both      Douglas burden-shifting framework should be applied to
unlawful considerations and legitimate reasons. Desert            FMLA retaliation claims that are based upon indirect
Palace v. Costa, 123 S. Ct. 2148 (2003) (holding that direct      evidence. Id. at 315. Whether Gibson’s case consisted of
evidence is not required in order to prove discrimination in      direct or indirect evidence or some combination of the two is,
mixed-motive cases under Title VII); Price Waterhouse v.          for the reasons discussed below, ultimately irrelevant. The
Hopkins, 490 U.S. 228, 240-41 (1989) (plurality opinion)          district court, however, used the McDonnell Douglas
(applying the mixed-motive analysis in a gender                   framework in instructing the jury. Under McDonnell
discrimination case based on a failure to promote).               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
No. 02-5473                  Gibson v. City of Louisville      5    6    Gibson v. City of Louisville                 No. 02-5473

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