           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     Brown v. Packaging Corp. of America         No. 01-5864
        ELECTRONIC CITATION: 2003 FED App. 0257P (6th Cir.)
                    File Name: 03a0257p.06                                                      _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Victor I. Fleitas, Tupelo, Mississippi, for
                  FOR THE SIXTH CIRCUIT                                    Appellant. Marcus M. Crider, WALLER, LANSDEN,
                    _________________                                      DORTCH & DAVIS, Nashville, Tennessee, for Appellee.
                                                                           ON BRIEF: Victor I. Fleitas, Tupelo, Mississippi, Jim D.
 BOBBY BROWN ,                   X                                         Waide, WAIDE & ASSOCIATES, Tupelo, Mississippi, for
         Plaintiff-Appellant,     -                                        Appellant. Marcus M. Crider, WALLER, LANSDEN,
                                  -                                        DORTCH & DAVIS, Nashville, Tennessee, Mark E.
                                  -   No. 01-5864                          Stamelos, KING & BALLOW, Nashville, Tennessee, for
            v.                    -                                        Appellee.
                                   >
                                  ,                                           NELSON, J., announced the judgment of the court and
 PACKAGING CORPORATION OF -
 AMERICA ,                                                                 delivered an opinion, in which CLAY, J. and HAYNES, D. J.,
                                  -                                        concurred except as to Part II B. CLAY, J. (pp. 17-25),
          Defendant-Appellee. -                                            delivered a separate opinion, in which HAYNES, D. J.,
                                  -                                        concurred, which constitutes the opinion of the court on the
                                  -                                        issue discussed in Part II B.
                                 N
      Appeal from the United States District Court                                             _________________
    for the Western District of Tennessee at Jackson.
  No. 00-01049—James D. Todd, Chief District Judge.                                                OPINION
                                                                                               _________________
                    Argued: January 28, 2003
                                                                             DAVID A. NELSON, Circuit Judge. This is an appeal from
               Decided and Filed: July 29, 2003                            a judgment entered on a verdict for the employer in an age
                                                                           discrimination case. The main issue we are asked to decide is
 Before: NELSON and CLAY, Circuit Judges; HAYNES,                          whether the district court committed reversible error by
                  District Judge.*                                         including instructions in its charge to the jury that replicated
                                                                           the prima-facie-case and “burden-shifting” guidelines set forth
                                                                           in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
                                                                           and Texas Dept. of Community Affairs v. Burdine, 450 U.S.
                                                                           248 (1981).
                                                                             Unlike my colleagues on the panel, I am inclined to think
                                                                           that trial courts should be discouraged from parroting the legal
    *
      The Honorable William J. Haynes, Jr., United States District Judge   technicalities of McDonnell Douglas and Burdine in charging
for the Middle District of Tennessee, sitting by designation.

                                   1
 No. 01-5864      Brown v. Packaging Corp. of America           3    4     Brown v. Packaging Corp. of America         No. 01-5864

juries. Whether or not the inclusion of McDonnell Douglas            conviction or the photograph incident, and he testified at trial
verbiage in jury instructions may create an unnecessary risk         that the information “dismayed” him.
that the jury will be confused, however, none of the members
of the panel is persuaded that any potential for confusion in the       Synyard promptly decided not to promote Brown after all,
case at bar was sufficiently great to necessitate a reversal here.   and he instructed area supervisor David Ellison to have Brown
Accordingly, and because we are not persuaded by the                 report for work on the next shift as a crew leader and not as a
plaintiff’s remaining assignments of error, we shall affirm the      foreman. When Brown asked what had happened to his
challenged judgment.                                                 promotion, Ellison allegedly told him that Mr. Kowlzan
                                                                     “wanted younger people and engineers to fill the job.” Ellison
                                I                                    testified that he never said any such thing.
  The plaintiff in this case, Bobby Brown, went to work for            Synyard met with Brown a day or two after the withdrawal
the defendant, Packaging Corporation of America, in 1962,            of the promotion. This time Brown was told he was being kept
when he was about 20 years old. In 1996 Mr. Brown was                on as crew leader because the man who was in line to succeed
promoted to a crew leader’s job. In that capacity he was             him in that job was far weaker than Brown as far as experience
responsible for the operation of one of two large paper              went. Synyard did not mention the arson or the nude
machines at a plant in Counce, Tennessee. The promotion to           photographs, testifying later that “I thought it was very
crew leader was based entirely on seniority and was mandated         humiliating and embarrassing, and I just didn’t see the need of
by a collective bargaining agreement.                                further embarrassing Bobby . . . .”
  In 1999, when Mr. Brown was 57 years of age, plant                   Synyard ultimately filled the temporary foreman’s slot by
manager Michael Synyard offered him a promotion to the               promoting an employee named Jamie Mims. Mr. Mims was
position of temporary foreman. Brown accepted. The new               40 years old.
job, unlike the old one, was not covered by the collective
bargaining agreement.                                                  Aggrieved by his failure to get the promotion he had been
                                                                     promised, Mr. Brown filed an age discrimination charge with
  Although Synyard did not need anyone’s approval to                 the Equal Employment Opportunity Commission.             The
promote Mr. Brown, he mentioned his decision to Mark                 company submitted a response denying that Brown had been
Kowlzan, a vice president of the company. Kowlzan voiced             discriminated against because of age and asserting that Mims
serious reservations about Brown, asserting that he “lacked          “displayed more initiative and exhibited better leadership
leadership” and pointing out that he had been convicted of           characteristics.” The response did not mention Brown’s
arson for burning down his house. (The company had fired             conviction for arson or the nude photograph incident.
Brown at the time of the conviction, which occurred in 1989,
but subsequently rehired him under a threat of litigation.)             Unable to conclude that a violation of the Age
Kowlzan further told Synyard about an incident in which              Discrimination Act had been established, the EEOC closed its
Brown had shown photographs of his wife in the nude to               file and notified Mr. Brown of his right to sue the employer
fellow employees at the plant – behavior that was not only           within 90 days of his receipt of the notice. Brown exercised
bizarre, but that violated the company’s sexual harassment           this right, filing an action in the United States District Court
policy. Synyard had not known about either the arson
No. 01-5864      Brown v. Packaging Corp. of America              5    6     Brown v. Packaging Corp. of America          No. 01-5864

for the Western District of Tennessee and demanding a jury               Counsel for Mr. Brown objected that the proposed
trial.                                                                instructions were improper for two reasons. First, he
                                                                      maintained, Brown was offering not only indirect evidence of
   After denying a defense motion for summary judgment, the           wrongful discrimination – the type of evidence dealt with in
district court denied a motion in limine wherein Brown sought         McDonnell Douglas – but direct evidence as well. Second,
to exclude evidence of his arson conviction. The court granted        counsel argued, even where the evidence is purely indirect, it
a motion to exclude evidence that David Ellison, the area             is confusing for a jury to be instructed on the elements of a
supervisor who first advised Brown that he was not being              prima facie case and (as counsel put it) “all that burden shifting
promoted, had been convicted of a misdemeanor. (In August             business.”
of 1999 – after he had become an area supervisor – Ellison
pleaded no contest to a misdemeanor charge of criminal                  The trial court was unmoved by either argument, and the
trespass.)                                                            instruction was incorporated without change in the charge
                                                                      given the jury at the end of the case. The jury found in favor
  When Brown’s case went to trial, the district court took            of the defendant, as we have said, and there has been a timely
advantage of a recess to review its proposed jury instructions        appeal from the judgment entered on the verdict.
with the lawyers. The proposed charge included five pages of
text adapted from the Supreme Court’s opinion in McDonnell                                            II
Douglas, 411 U.S. at 802-805. The language covered the four
McDonnell Douglas elements of a prima facie case, the                                                A
defendant’s burden of articulating a nondiscriminatory reason
for the challenged employment action, the plaintiff’s                   We turn first to Mr. Brown’s “direct evidence” argument.
obligation to prove that the proffered reason was a pretext, and      The gist of the argument is that the McDonnell Douglas
methods by which pretext may be shown. The court also                 paradigm relates only to cases where there is no direct
proposed to add the following caution:                                evidence of wrongful discrimination; a plaintiff who has
                                                                      presented “some direct evidence of age discrimination,” this
     “Remember, the ultimate burden remains at all times on           court has said, “. . . need not make out a prima facie case under
  plaintiff to prove by a preponderance of the evidence that          the McDonnell Douglas framework.” LaPointe v. United
  he was discriminated against because of age; therefore, it          Autoworkers Local 600, 103 F.3d 485, 488 n.3 (6th Cir. 1996).
  is not enough for plaintiff to simply prove or claim that           Mr. Brown submits that he presented direct evidence of
  the stated reasons for PCA’s actions with regard to                 discrimination when he testified that area manager Ellison told
  plaintiff were not believable or are not the true reasons for       him he was not getting the promised promotion because vice
  the actions. The reason for this is because plaintiff always        president Kowlzan “wanted younger people . . . .”
  must prove by a preponderance of the evidence that he
  was discriminated against because of his age. You must                 Although Mr. Brown characterizes his testimony as direct
  determine whether plaintiff has proved that the reasons             evidence of discriminatory intent, our precedents suggest that
  given by PCA were a pretext for unlawful age                        it may be more accurate to characterize it as circumstantial
  discrimination, and you may consider all the evidence in            evidence. See Hopson v. Daimler Chrysler Corp., 306 F.3d
  making this determination.”                                         427, 433 (6th Cir. 2002) (evidence that one of the plaintiff’s
                                                                      supervisors held the opinion that race was a factor in the
No. 01-5864          Brown v. Packaging Corp. of America                     7     8       Brown v. Packaging Corp. of America          No. 01-5864

defendant’s decision not to promote the plaintiff was not direct                    If an instruction based on McDonnell Douglas could pass
evidence of discrimination where the supervisor had no                            muster without the circumstantial evidence involving Ellison,
involvement in the decision and did not reveal the basis for his                  we are not persuaded that introduction of the Ellison evidence
opinion). Ellison had no involvement in the decision not to                       would necessitate a reversal – at least as long as the charge as
promote Brown, and Ellison did not reveal the basis for his                       a whole gave the jury to understand that its first task was to
alleged insight into Kowlzan’s thought processes.                                 decide whether Packaging Corporation of America had been
                                                                                  shown, by a preponderance of the evidence, to have
   We agree that the testimony in question does not fall within                   discriminated against the plaintiff because of his being at least
any of the four categories of proof described by the McDonnell                    40 years old. The court’s charge did that, as we read it.
Douglas Court in discussing the establishment of a prima facie
case of discrimination.1 On the other hand, the fact that the                                                      B
testimony fell outside the McDonnell Douglas paradigm does
not detract from the fact that Brown also presented evidence                         Turning to Mr. Brown’s second argument – the argument
that fit the paradigm exactly. In other words, Brown produced                     that it was confusing to instruct the jury on the details of the
evidence that (1) he was over the age of 40, (2) he accepted a                    framework erected by the Supreme Court in the McDonnell
job for which he was qualified, (3) the job offer was                             Douglas case – I start with the observation that there was no
withdrawn despite his qualifications, and (4) the position was                    jury (and thus no jury charge) in McDonnell Douglas itself.
ultimately filled by a much younger person. The evidence of                       Decided by the Supreme Court in 1973, McDonnell Douglas
Kowlzan’s alleged bias tended to strengthen Brown’s prima                         was a race discrimination case brought under Title VII of the
facie case, but it certainly did not render these four elements                   Civil Rights Act of 1964.2 Not until enactment of the Civil
irrelevant – and Brown would have had a prima facie case                          Rights Act of 1991 did Congress provide for jury trials in Title
under McDonnell Douglas even without the evidence of what                         VII cases. See 105 Stat. 1072, 42 U.S.C. § 1981a. Prior to
Ellison was supposed to have said about Kowlzan.                                  that time a suit under Title VII was treated as a suit in equity,
                                                                                  a type of case historically tried by the court without a jury.
                                                                                  See In re Lewis, 845 F.2d 624, 626 n.1 (6th Cir. 1988).

    1
                                                                                    The posture in which the McDonnell Douglas case reached
      It is worth noting that the Supreme Co urt did not intend its               the Supreme Court may be outlined as follows. The district
discussion to limit the ways in which a plaintiff could establish a prima         court had dismissed on jurisdictional grounds a claim asserted
facie case. As the Court explained in a footnote, “[t]he facts necessarily
will vary in [discrimination] cases, and the specification above of the           by the plaintiff under § 703(a)(1) of the 1964 Civil Rights Act.
prima facie proof required . . . is not necessarily applicable in every           The Eighth Circuit had reversed the dismissal and attempted,
respect to differing factual situations.” McDonnell Douglas, 411 U.S. at          in the opinion it published, to set forth the standards that
802 n.13.                                                                         would govern the district court’s adjudication of the claim on
                                                                                  remand. The Supreme Court granted certiorari “[i]n order to
     To illustrate the p oint, we invite the reader to suppose that in the case
at bar the re had been a wealth of circumstantial evidence of
                                                                                  clarify the standards governing the disposition of an action
discriminatory animus based on Brown’s age, but to suppose further that
Synyard had never taken an y steps to fill the temporary forem an’s job
after withdrawing the offer to Bro wn. B rown might well have been able                2
to make out a case for the jury, under this hypothesis, notwithstanding the             Burdine, a sex discrimina tion case decided in 198 1, was also
absence of the fourth element in the McDonnell Douglas paradigm.                   brought under Title VII.
 No. 01-5864       Brown v. Packaging Corp. of America              9     10       Brown v. Packaging Corp. of America               No. 01-5864

challenging employment discrimination . . . .” McDonnell                   The Supreme Court has never rejected Loeb’s gloss on
Douglas, 411 U.S. at 497-98. “The critical issue,” as the                McDonnell Douglas. Neither has the Sixth Circuit. In our
Supreme Court explained, “. . . concerns the order and                   Kitchen opinion, on the contrary, after quoting the passage
allocation of proof in a private, non-class-action challenging           from Loeb set forth above, we declared that “a jury instruction
employment discrimination.” Id. at 800 (emphasis supplied).              will not automatically be erroneous simply because it does not
                                                                         precisely follow the legal niceties of McDonnell Douglas and
  The “order and allocation of proof” are not matters for                Burdine.” Kitchen, 825 F.2d at 1012.3
which juries are responsible – and, as the First Circuit pointed
out in a leading case decided six years after McDonnell                     In re Lewis, 845 F.2d 624 (6th Cir. 1988), represents this
Douglas, the McDonnell Douglas opinion “was not written as               circuit’s strongest endorsement of the view taken by the First
a prospective jury charge . . . .” Loeb v. Textron, Inc., 600            Circuit in Loeb. The Lewis case arose prior to the 1991
F.2d 1003, 1016 (1st Cir. 1979). Heavily freighted with                  legislation that provided for jury trials in Title VII cases, and
technical legal language (“prima facie case,” e.g.), the                 the portion of the appeal in Lewis that is relevant here dealt
McDonnell Douglas opinion was written for an audience of                 with jury instructions on a race discrimination claim brought
judges and lawyers. “[T]o read [the opinion’s] technical                 under Michigan’s Elliott-Larsen Civil Rights Act. Michigan’s
aspects to a jury,” the Loeb court said, “. . . will add little to the   standard jury instructions, which the district court had used
juror’s understanding of the case and, even worse, may lead              after rejecting a request for a McDonnell Douglas-type
jurors to abandon their own judgment and to seize upon poorly            instruction, “deliberately eschewed” the McDonnell Douglas
understood legalisms to decide the ultimate question of                  model. The Michigan Supreme Court Committee on Jury
discrimination.” Id. Cf. Kitchen v. Chippawa Valley Schools,             Instructions, which drafted the instruction at issue in Lewis (II
825 F.2d 1004, 1012 (6th Cir. 1987), where we quoted this                Michigan Standard Jury Instructions 2d § 105.04 (quoted at
passage from Loeb with approval.                                         845 F.2d 634)), quoted the language of Loeb in explaining why
                                                                         the committee had purposely steered clear of the McDonnell
   I do not mean to suggest that there can never be a case in            Douglas formulation: a McDonnell Douglas instruction, said
which the trial court will have discretion to use the framework          the committee, would “‘add little to the juror’s understanding
of McDonnell Douglas as a guide in drafting plain-English
instructions to the jury. See Rowlett v. Anheuser Bush, Inc.,
832 F.2d 194, 200 (1st Cir. 1987). Obviously, however, it                      3
                                                                                In Cronich v. Wayne County Community College, 874 F.2d 359, 366
remains the responsibility of the judge to determine whether              (6th Cir. 1989), we remark ed, citing Kitchen, that “[a]n instruction
the plaintiff has presented a prima facie case capable of                 incorporating [the shifting b urden of proof standards articulated in
withstanding a motion for summary judgment or a directed                  McDonnell Douglas and Burdine] has been approved but not abso lutely
verdict – and the First Circuit has made it very clear that “the          required by this court.” W hat the court actually did in Kitchen, however,
term ‘prima facie case’ need never be mentioned to the jurors.”           was uphold as “not erroneo us” a jury charge challenged by the appe llants
                                                                          precisely beca use it “failed to instruct the jury on the shifting burden of
Loeb, 600 F.2d at 1016. Where there is a dispute as to whether            proof requirements [of McDonnell Douglas and Burdine].” Kitchen, 825
the employer has met its burden of articulating a                         F.2d at 1012 and 1011 (emphasis supplied). And it hardly constitutes
nondiscriminatory reason for the challenged employment                    approval of instructions parroting the language of McDonnell Douglas to
action, similarly, “it will be for the judge to decide whether            say that such instructions “will add little to the juror’s understanding of
defendant has stated a legitimate reason with such specificity            the case and, even worse, may lead jurors to abandon their own judgment
                                                                          and to seize upon poorly understood legalisms to decide the ultimate
as to require plaintiff to prove it to be a pretext.” Id. n. 16.          question of discrimination.” Id. at 1012, quoting Loeb, 600 F.2d at 1016.
No. 01-5864      Brown v. Packaging Corp. of America         11     12       Brown v. Packaging Corp. of America                No. 01-5864

of the case and, even worse, may lead jurors to abandon their      declining “to walk the jury through the paradigm established
own judgment and to seize upon poorly understood legalisms         by McDonnell Douglas”);4 Williams v. Valentec Kisco, Inc.,
to decide the ultimate question of discrimination.’ . . .” Id.     964 F.2d 723, 731 (8th Cir. 1992) (reiterating that “the
                                                                   McDonnell Douglas ‘ritual is not well suited as a detailed
  This court agreed. Holding that there was no error in            instruction to the jury’ . . .”); Costa v. Desert Palace, Inc., 299
rejecting the McDonnell Douglas instruction tendered by the        F.3d 838, 855 (9th Cir. 2002) (en banc) (“it is not normally
defendant at the time of trial, we voiced a clear preference for   appropriate to introduce the McDonnell Douglas burden-
the instructions that eschewed the McDonnell Douglas model:        shifting framework to the jury”), aff’d, ___ U.S. ___, 123 S.Ct.
                                                                   816 (2003); Messina v. Kroblin Transportation Systems, Inc.,
  “We agree with the Committee on Jury Instructions.               903 F.2d 1306, 1308 (10th Cir. 1990) (“The McDonnell
  Rather than confuse the jurors with legal definitions of the     Douglas inferences provide assistance to a judge as he
  burdens of proof, persuasion and production and how they         addresses motions to dismiss, for summary judgment, and for
  shift under McDonnell Douglas, we find that the above            directed verdict, but they are of little relevance to the jury”);
  instruction was a clear and preferable statement of the          Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th
  law. We therefore find no error in the district court’s          Cir. 1999) (“We stress that it is unnecessary and inappropriate
  decision not to give defendant’s Proposed Instruction No.        to instruct the jury on the McDonnell Douglas analysis”).
  4.” Id.
                                                                      But while most courts of appeals would agree that it is
   Other courts of appeals have likewise followed Loeb’s lead.     normally inappropriate to instruct the jury on the McDonnell
See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir.        Douglas analysis, seldom is it held to be reversible error for a
1994) (bemoaning the fact that “lawyers are still prone to         trial court to do so as long as the instruction summarizes the
include in requested jury charges language that was written by     law accurately. See, e.g., Dudley, Messina, Mullen, and
appellate courts in the context of bench trials – language that    Sharkey, all of which are cases where the giving of McDonnell
is at best irrelevant, and at worst misleading to a jury”);        Douglas instructions was held not to constitute prejudicial
Sharkey v. Lasmo (AUL LTD.), 214 F.3d 371, 374 (2d Cir.            error. The use of such an instruction was cited as error in
2000) (“We agree that juries should not be charged on the          Gordon, but there were several grounds for reversal in that
McDonnell Douglas burdening-shifting framework”); Gordon           case and we do not know whether the Second Circuit panel
v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d Cir.          would have been prepared to reverse solely on the McDonnell
2000) (“The jury . . . does not need to be lectured on the         Douglas ground.
concepts that guide a judge in determining whether a case
should go to the jury”); Mullen v. Princess Anne Volunteer            In the case at bar, after examining the instructions as a
Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988) (burden-       whole, we do not find that the potential for prejudice, if any,
shifting instructions “are beyond the function and expertise of    rises to a level that would require reversal. The question “is
the jury, which need never hear the term ‘prima facie case’”);     not whether an instruction was faultless in every respect, but
Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.
1992) (“Instructing the jury on the elements of a prima facie
case, presumptions, and the shifting burden of proof is                  4
unnecessary and confusing”); Gehring v. Case Corp., 43 F.3d              But see Lynch v. Belden and Co., Inc., 882 F.2d 262, 26 9 (7th Cir.
340, 343 (7th Cir. 1994) (trial judge acted correctly in            1989) (“it was prope r for the d istrict court to instruct the jury as to the
                                                                    Mc Do nne ll Douglas/Burdine formula for evaluating indirect evidence”).
 No. 01-5864      Brown v. Packaging Corp. of America         13    14       Brown v. Packaging Corp. of America                   No. 01-5864

whether the jury, considering the instructions as a whole, was      to support the prima facie case described in McDonnell
misled.” Messina, 903 F.3d at 1309. We do not believe that          Douglas. The instruction given here told the jury no such
the jury was misled here.                                           thing.
                               C                                                                         III
  During oral argument, counsel for Mr. Brown argued that                                                 A
the instruction quoted in Part I of this opinion – an instruction
that included the words “it is not enough for plaintiff simply to     In his next assignment of error, Mr. Brown says that “[t]he
prove or claim that the stated reasons for PCA’s actions with       district court committed reversible error in admitting evidence
regard to plaintiff were not believable or are not the true         of Mr. Brown’s 12 year old arson conviction to impeach his
reasons for the actions” – adopted the “pretext-plus” theory        credibility.” But impeachment of credibility pursuant to Rule
rejected by the Supreme Court in Reeves v. Sanderson                609, Fed. R. Evid.,5 was not the only basis on which the
Plumbing Products, Inc., 530 U.S. 133 (2000). This argument         district court decided to admit evidence of the conviction. As
was not presented to the district court, nor was it mentioned in    the court pointed out during the pretrial conference at which
Mr. Brown’s briefs on appeal; accordingly, we need not              Brown’s motion in limine was denied, the jury was going to
address it. If we were to address the argument, however, we         hear about the arson conviction in any event, the company
should have no hesitancy in saying that it is without merit.        having declared its intent to show that the conviction was one
                                                                    of the reasons Brown was not promoted. The district court
   The instruction in question properly reminded the jury that      ruled that the company could use the evidence for either
“plaintiff must always prove by a preponderance of the              purpose or both purposes.
evidence that he was discriminated against because of his age.”
The instruction also told the jury that Mr. Brown had to do
more than prove that the company’s stated reason for its action          5
                                                                          Under Rule 609(a), the credibility of a witness other than the
was a pretext. This was an accurate statement of the law: “It       defendant in a criminal trial may be attacked by evidence of his
is not enough . . . to disbelieve the employer; the factfinder      conviction of a crime punishable by imprisonment in excess of one year
must believe the plaintiff’s explanation of intentional             (or regardless of punishment if the crime involved dishon esty or false
discrimination.” St. Mary’s Honor Center v. Hicks, 509 U.S.         statement).
502, 524, 519 (1993), as quoted in Reeves, 530 U.S. at 146-47.
                                                                        W ith respect to convictions more than 10 years old, Rule 609(b)
Even if the jury in the case at bar disbelieved the company’s       provides as follows:
explanation for denying Mr. Brown the promotion, the Reeves
and St. Mary’s Honor Center cases teach, the jury could not                   “Evidence of a conviction under this rule is not admissible
return a verdict for Mr. Brown unless it was prepared to draw            if a period of more than ten years has elapsed since the date of
the inference from all of Mr. Brown’s evidence that the                  the conviction . . . unless the court determ ines, in the interests of
                                                                         justice, that the probative value of the conviction supported by
company was guilty of intentional age discrimination.                    specific facts and circum stances substantially outweighs its
                                                                         prejudicial effect. However, evidence of a conviction more than
  To be improper under Reeves, the instruction would have                10 years old . . . is not adm issible unless the proponent gives to
had to tell the jury that evidence of pretext must be                    the adve rse party sufficient ad vance written notice o f intent to
supplemented by evidence more extensive than that necessary              use such evidence to provide the adverse party with a fair
                                                                         opp ortunity to contest the use of such evidence.”
 No. 01-5864      Brown v. Packaging Corp. of America          15    16   Brown v. Packaging Corp. of America   No. 01-5864

  As far as the impeachment purpose is concerned, the district        AFFIRMED.
court satisfied itself that the advance written notice required by
Rule 609(b) had been given. The court obviously thought that
the “prejudicial effect” spoken of in Rule 609(b) would be
minimal, given that the evidence could be put before the jury
anyway for a purpose having nothing to do with Rule 609.
  The district court’s conclusion did not represent an abuse of
discretion, as we see it. In any event, we are satisfied that the
decision to admit evidence of Mr. Brown’s conviction did not
result in substantial prejudice. The challenged ruling thus
provides no ground for reversal. See United States v. Sloman,
909 F.2d 176, 180-81 (6th Cir. 1990).
                                B
   Finally, Mr. Brown maintains that evidence of David
Ellison’s misdemeanor criminal trespass conviction should
have been admitted for the limited purpose of showing that the
company’s professed reliance on Mr. Brown’s arson
conviction as a reason for denying Brown the promised
promotion was a pretext for age discrimination. If Ellison
suffered no adverse employment action as a result of pleading
to a misdemeanor charge, Brown’s lawyer wanted the jury to
infer, the denial of a promotion to Mr. Brown must have been
attributable to something other than his arson conviction.
Brown submits that the court’s decision to exclude the Ellison
evidence was reversible error.
  We disagree. The district court relied heavily on the fact
that the decision not to promote Brown occurred prior to
Ellison’s conviction. Ellison was not promoted following his
misdemeanor conviction, moreover, but simply remained in
the job he held before the conviction, just as Brown himself
did. Under these circumstances, and given the disparity in the
seriousness of the offenses, Ellison’s conviction was pretty
thin gruel as evidence of pretext. The court’s exclusion of the
misdemeanor conviction was not an abuse of discretion, in our
opinion, and we do not think it was prejudicial in any event.
 No. 01-5864        Brown v. Packaging Corp. of America               17     18       Brown v. Packaging Corp. of America                  No. 01-5864

                     ____________________                                   instruct a jury in a retaliation case, brought under Michigan
                                                                            state law, on the burden-shifting test. This Court decided that
                       CONCURRENCE                                          the district court did not err “because the jury’s proper concern
                     ____________________                                   was with the ultimate question of retaliation and not with the
                                                                            potentially confusing shifting of evidentiary burdens.”
   CLAY, Circuit Judge, concurring. Although I agree with the               Kitchen, 825 F.2d at 1012. But affirming the district court’s
outcome reached in this case, as well as much of the reasoning              decision not to give an instruction cannot be equated with
expressed in the lead opinion, I write separately to express my             reversing a district court’s decision to give the instruction.
disagreement with Part II.B of the lead opinion, which seeks                Kitchen’s comment about potential confusion amounts to no
to discourage district courts from utilizing the burden-shifting            more than dicta. Similarly, in In re Lewis, 845 F.2d 624, 634
test enunciated in McDonnell Douglas Corp. v. Green, 411                    (6th Cir. 1988), this Court affirmed the district court’s decision
U.S. 792 (1973) when giving jury instructions.1                             not to give the McDonnell Douglas instruction. The Court
                                                                            made no finding that giving a McDonnell Douglas instruction
   Ordinarily, a district court should give a requested jury                would have been legally erroneous. It should not be gleaned
instruction when such instruction offers a correct statement of             from either of these cases that a district court errs in giving a
the law and is not irrelevant, redundant, or confusing. See                 McDonnell Douglas instruction on the basis of its allegedly
King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000)                   confusing nature, since holding that an instruction is
(holding that the “district court had discretion to instruct the            unnecessary or superfluous is quite different from holding that
jury in any manner it deemed appropriate, as long as it                     an instruction is actually detrimental to the jury’s
correctly stated [the appropriate] substantive law, instructed on           understanding of what it is to decide.
the issues relevant to the case at hand, and did not mislead the
jury”); Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011                 In determining that juries are not sufficiently sophisticated
(6th Cir. 1987) (“A judgment can be reversed if the                         to understand the McDonnell Douglas test, the lead opinion
instructions, viewed as a whole, were confusing, misleading                 essentially relies on dicta from other circuits disapproving of
and prejudicial.”) (citing DSG Corp. v. Anderson, 754 F.2d                  including the McDonnell Douglas test in jury instructions, but
678, 679 (6th Cir. 1985)). No one contests that the McDonnell               declining to reverse on such grounds.2 Sharkey v. Lasmo
Douglas burden-shifting test offers a correct description of the
prima facie case required to establish circumstantial evidence
of employment discrimination. Moreover, the test is not                           2
                                                                                   Actually, some of the lead opinion’s cited cases, like Kitchen and
irrelevant, redundant, or confusing.                                         Lewis, rejected the notion that the burden-shifting framework is a
                                                                             necessary component of jury instructions in an employment
  Certainly, this Court has never forbidden the use of the                   discrimination case, but the cases did not expressly prohibit the
McDonnell Douglas test. In Kitchen, the issue was whether                    framework’s use. These cases merely provide some dicta suggesting that
                                                                             the burden-shifting approach is co nfusing to explain to juro rs. See Loeb
the district court committed reversible error in refusing to                 v. Textro n, Inc ., 600 F.2d 1 003, 101 6 (1st Cir. 1979) (acknowledging that
                                                                             “the subtleties of M cDonne ll Douglas are confusing” for judges and juries
                                                                             and that “to read its technica l aspec ts to a jury [may confuse a juror],” but
     1
                                                                             then stating that the use of McDonnell Douglas is workable because “we
       This concurring opinion, which Judge Haynes joins, constitutes the    do not equate use of McDonne ll Douglas with a requirement that the full
 majority view regarding the use of the McDonnell Douglas burden-            formulation be read in haec verba to the jury”); see also Gehring v. Case
 shifting test in jury instructions.                                         Corp., 43 F.3d 34 0, 343 (7th Cir. 1994) (rejecting the plaintiff’s argument
 No. 01-5864         Brown v. Packaging Corp. of America                   19     20    Brown v. Packaging Corp. of America         No. 01-5864

(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000); Dudley v. Wal-                      complicated terminology abounds in such areas of law as
Mart Stores, Inc., 166 F.3d 1317, 1321-22 (11th Cir. 1999);                       medical malpractice. See, e.g., Joseph H. King, Jr.,
Cabrera v. Jakabovitz, 24 F.3d 372, 380-84 (2d Cir. 1994);                        Reconciling the Exercise of Judgment and the Objective
Walther v. Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir.                         Standard of Care in Medical Malpractice, 52 OKLA . L. REV .
1992); Messina v. Kroblin Transp. Sys. Inc., 903 F.2d 1306,                       49, 69-70 (noting the potential confusion of “best judgment”
1308-09 (10th Cir. 1990); Mullen v. Princess Anne Volunteer                       language in jury instructions for medical malpractice lawsuits).
Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988); see also                     Yet courts have not jettisoned these frameworks from jury
Gordon v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d                       instructions on the theory that juries are incapable of
Cir. 2000) (observing that the inclusion of the McDonnell                         comprehending sophisticated nomenclature. Indeed, no
Douglas test in the jury instructions was erroneous but                           legitimate distinction has been asserted between the products
reversing on other grounds). The largely conclusory rationales                    liability and medical malpractice contexts and the present
detailed in those cases are less than persuasive.                                 context of employment discrimination. Thus, if a jury is
                                                                                  capable of understanding the terms used in contexts such as
  Two main reasons generally are advanced in support of                           those of products liability and medical malpractice, then there
excluding the McDonnell Douglas test from jury instructions.                      is no apparent reason why a jury should not be able to
The first rationale, based on the idea that judges should only                    understand the terms used in the employment discrimination
use language that jurors can understand, implies that lay                         context.
persons do not easily understand such terms as “prima facie
case,” “shifting burden,” and “burden of proof.” See Cabrera,                       Moreover, the notion that juries are too easily confused by
24 F.3d at 381; Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st                   such terminology is unexplained and unproven. The cases
Cir. 1979); Gerrilyn G. Brill, Instructing the Jury in an                         advancing this viewpoint do not cite any empirical data in
Employment Discrimination Case, 1998 FED . CTS. L. REV . 2,                       drawing the conclusion that juries are not sufficiently capable
4.5-4.6 (March 1998). Yet, as the partial dissent in Loeb                         of understanding McDonnell Douglas. The First Circuit’s
noted, “[t]he difficulties involved in instructing a jury in a                    Loeb opinion was released not terribly long after McDonnell
products liability case, where liability is alternately premised                  Douglas was decided, and it reflects the court’s own
on the three theories of strict liability, negligence, and                        confusion as to what constituted the settled law of shifting
warranty are no less complex than the shifting burdens                            burdens in an employment discrimination case. Indeed, the
outlined in McDonnell Douglas.” Loeb, 600 F.2d at 1024                            First Circuit backed away from its earlier misgivings,
(Bownes, J., concurring and dissenting).               Similarly,                 acknowledging that the Loeb decision was influenced by its
                                                                                  own confusion:
                                                                                    Although this framework was considered complicated and
 that he was entitled to a burden-shifting instruction); Williams v. Valentec       cumbersome when it was first used in
 Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (affirming the district
 court’s refusal to include the burden-shifting test in its jury instructions);
                                                                                    McDonnell-Douglas, with repeated use courts have
 Costa v. Desert Palace, Inc., 299 F.3d 83 8, 854-55 (9th Cir. 2002) (en            become more comfortable with it, both for their own use
 banc) (mentioning, in dicta, that “it is not normally appropriate to               in ruling on Title VII claims and for the jury's use in
 introduce the M cDonne ll Douglas burden-shifting fram ework to the jury,”         ruling on intentional discrimination. . . . It is a
 as part of a general discussion about the relationship between the                 straightforward way of explaining how to consider
 McDonnell-Douglas test and the single- and mixed-motive analyses),
 aff’d, – U.S. –, 123 S .Ct. 2148, 2003 W L 2131 0219 (June 9 , 2003).
 No. 01-5864      Brown v. Packaging Corp. of America          21     22       Brown v. Packaging Corp. of America                   No. 01-5864

  whether there is intentional discrimination in situations          Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV .
  where such discrimination is not likely to be overt.               2229, 2323 (1995).3
Rowlett v. Anheuser-Busch, Inc. 832 F.2d 194, 200 (1st Cir.             For thirty years, the McDonnell Douglas analysis has played
1987) (citation omitted), abrogated on other grounds by              an important role in the framework of employment
Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999). Thus, the         discrimination law, and that analysis might assist a jury in
First Circuit, which was the first to question the wholesale         understanding the dispute it has been asked to resolve. For
importation of McDonnell Douglas into jury instructions in           instance, if the jury in this case had simply been told,
Loeb, backed off and embraced its use just a few years later.        “Packaging Corporation says that it decided not to promote
                                                                     Mr. Brown because of his arson conviction and an incident at
  When a trial court understands the law, it should be able to       work involving nude photographs of his wife; you decide
explain the law to a jury with relative ease. Trial courts are       whether you think they are lying and that their real reason was
much more comfortable with McDonnell Douglas than they               age discrimination (which you may infer if you believe four
were twenty years ago when the Supreme Court was still road-         certain facts),” the jury might have wondered why the inquiry
mapping many burden of proof issues in employment                    was framed in that way and focused only on that aspect of the
discrimination law. The concerns that were present during the        trial. Only an explanation of the parties’ initial respective
time Loeb was decided have largely abated. Even assuming             burdens would shed further light on the reasons for the
that a jury might experience difficulty understanding an aspect      inquiry’s focus. Thus, even if the giving of the McDonnell
of the burden-shifting structure, it can – and presumably will       Douglas test is not required, it is often beneficial in assisting
– request clarification from the court.                              a jury’s comprehension of the issues it has been asked to
                                                                     resolve.
   The other most frequently cited rationale is that once the
case has been tried and is about to be submitted to the jury, the       This is particularly true when one recalls the policy grounds
McDonnell Douglas analysis is no longer relevant because it          underlying the formulation of the McDonnell Douglas test in
is the function of the trial judge, not the jury, to engage in the   the first place. As the partial dissent in Loeb noted, the
burden-shifting analysis. That is, it is argued that if the judge    McDonnell Douglas test sought to “accommodate both the
determines that the plaintiff has not made out a prima facie         strong policy reasons for allowing plaintiff to proceed on the
case, the case is dismissed by way of a directed verdict in
defendant’s favor; if the plaintiff has established a prima facie
case and the defendant has articulated no legitimate non-                  3
                                                                             It is impo rtant to note that the parties’ shifting burdens of production
discriminatory reason for its adverse employment action,              do not form the entirety of a jury’s inquiry, which is, at its core, whether
judgment is rendered for the plaintiff; and if the plaintiff has      it finds by a preponderance of the evidence that the em ployer intention ally
established a prima facie case and the defendant has articulated      discriminated against the plaintiff. United States Postal Serv. Bd. of
a legitimate non-discriminatory reason, the jury considers only       Governors v. Aikens, 460 U.S. 711 , 775 (1983). Neve rtheless, eleme nts
                                                                      of a prim a facie case frequently are still relevant after the case has gone
whether the articulated reason is pretext for unlawful                to the jury. For instance, when an issue of fact remains as to one or more
discrimination. See, e.g., Deborah C. Malamud, The Last               of the elem ents in a plaintiff’s prima facie case, it is sometimes necessary
                                                                      to ask the jury, usually as part o f a special verdict form, to engage in
                                                                      factfinding on that particular element. Even the Loeb court had
                                                                      acknowledged that McDonnell Douglas would continue to be relevant in
                                                                      this scena rio. Loeb, 600 F.2d at 1016.
 No. 01-5864          Brown v. Packaging Corp. of America                   23      24    Brown v. Packaging Corp. of America         No. 01-5864

basis of a prima facie case and the further logical reason that                    However, the lead opinion does not explain the circumstances
the employer was the person best able to explain legitimate                        under which a jury verdict might be overturned because of the
reasons for failing to hire (or firing) an otherwise qualified                     use of the instruction, and when the verdict would not be
person who was within the protected class.” Loeb, 600 F.2d at                      overturned. Indeed, it does not explain why the district court
1024 (Bownes, J., concurring and dissenting). Bearing these                        did not abuse its discretion in this case, and it therefore
policy considerations in mind, the Supreme Court has                               provides little guidance to district courts in deciding whether
endorsed the notion that a jury may infer discrimination if                        to include such an instruction. The likely result from such a
(1) it finds that the plaintiff has established the four elements                  holding is that many district courts might simply refuse to give
of the prima facie case and (2) it disbelieves the employer’s                      the instruction, instead determining that eliminating the risk of
explanation for its adverse employment action(s). Reeves v.                        having a jury verdict overturned on appeal outweighs the
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)                          benefit of providing a jury with a fully developed jury
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511                          instruction on the applicable employment discrimination law
(1993)).4 The policy reasons do not disappear in the face of an                    issues.
employer’s ability to rebut a prima facie case by offering a
legitimate, non-discriminatory reason for its actions. Thus,                          Such a development would be unfortunate because
“[s]ome instruction to the jury on the prima facie case is                         describing the burden-shifting paradigm often can be
necessary for a full appreciation of what is involved in                           beneficial in communicating to juries an understanding of
discrimination cases.” Loeb, 600 F.2d at 1024 (Bownes, J.,                         employment discrimination law. Specifically, as discussed
concurring and dissenting).                                                        above, the McDonnell Douglas test provides jurors with a
                                                                                   fleshed-out context for the purpose of resolving the factual
  Another problem with the lead opinion is that although it                        disputes presented by the case being considered. The risk of
does not explicitly forbid district courts from giving the                         confusion should be minimal or nonexistent when the judge
McDonnell Douglas instruction, it impliedly attempted to put                       explains to the jury that McDonnell Douglas provides a
them on notice that giving such an instruction may place in                        backdrop to the jurors’ role as factfinders, and that their
jeopardy the validity of a jury’s verdict on appellate review.                     ultimate duty is to determine whether (1) the employer’s
                                                                                   proffered legitimate reason for an adverse employment action
                                                                                   was pretextual and (2) the employer’s true motive for taking
     4
        I adhe re to this view notwithstanding language in Hicks, 509 U.S.
                                                                                   the adverse action was illegal discrimination. See, e.g.,
 at 510-11, that some commentators have read as dampening (or even                 Mullen, 853 F.2d at 1137 (finding no error in the jury
 eliminating) the relevance of McDonnell Douglas once the employer                 instructions where the trial court directed the jury to focus on
 asserts a legitimate explanation for its actions. See, e.g., Malamud, supra,      the central issues of whether the employer’s asserted reason
 at 232 4. Hicks should not be read as attempting to supplant the                  was pretext for employment discrimination).
 Mc Do nne ll Douglas burd en-shifting analysis at any stage of the litigation.
 See W illiam R. Corbett, Of Ba bies, Bathwater, and Throwing Out Proof
 Struc tures: It is N ot Tim e to Jettison M cDonn ell Dou glas, 2 E MPLOYEE
                                                                                     The lead opinion is correct in stating that “it remains the
 R TS . & E M P . P O L’Y J. 361, 386-89 (19 98) (arguing that the centrality of   responsibility of the judge to determine whether the plaintiff
 Mc Do nne ll Douglas in emp loyment discrim ination cases, and its                has presented a prima facie case capable of withstanding a
 relevance in jury instructions, remains after Hicks). Until the Supreme           motion of summary judgment or a directed verdict.” However,
 Court indicates otherwise, the McDonnell Douglas framework remains the            this does not mean that the McDonnell Douglas instruction
 driving force for burden of proof issues in cases resting on circumstantial
 evidence.
                                                                                   does not provide a useful purpose, or that it is superfluous or
 No. 01-5864      Brown v. Packaging Corp. of America          25

confusing. Indeed, the average juror is not incapable of
understanding such language as “prima facie case” when it is
properly explained. As in any jury trial, it is the responsibility
of the judge to define legal terms and to clarify any subsequent
confusion during deliberations, as requested by the jury at the
time. “So long as a trial court does not fall into the mistake of
placing upon defendant an improper burden, its commenting
on shifting burdens imports no error.” Loeb, 600 F.2d at 1024
(Bownes, J., concurring and dissenting). Therefore, the district
court’s use of the McDonnell Douglas test with its burden-
shifting paradigm was an appropriate tool in instructing the
jury.
