Henrietta Browning has worked at an Internal Revenue Service call center in Portland, Oregon, since?? 1989.???? ?In?? 1998,?? she?? was?? temporarily promoted to the position of team leader, assuming responsibility for the supervision of a group of employees.?? ?The? following? year,? the? promotion was made permanent. ?In 2003, plaintiff was given a new supervisor, who rated plaintiff as not having met expectations, and placed her on a 60 day performance improvement plan (PIP).? ?At the conclusion of the PIP, plaintiff was demoted. Plaintiff? alleged? racial ?discrimination ?and eventually filed suit.
At the close of trial, Browning requested that the following instruction be given to the jury: Consistent? with ?the ?general principle of law that a party?s dishonesty? about? a? material? fact may be considered as affirmative evidence of guilt, if you find that the defendants? explanation about why?? they?? took?? adverse?? action against a plaintiff is not worthy of belief, you may infer a discriminatory or retaliatory motive from that fact.
She based her proposed instruction on a passage in?Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000).?? The Court refused to give the instruction and plaintiff appealed. Although the appellate court recognized a split in the circuits, the Ninth Circuit held that ?if the jury instructions set forth the essential elements the plaintiff needs to prove, the District Court?s refusal to give an instruction explicitly addressing pretext is not reversible error.?
Browning v. United States of America, 567 F.3d 1038 (9th? Cir. May 22, 2009) (Fisher, Graber, M. Smith).