Friday, November 22, 2013

Mixed Motive vs. Pretext Jury Instruction - COTW #169

The Third Circuit posted an unpublished opinion recently in Kull v. Kutztown University (opinion here) (let's pause for a moment so my non-attorney readers can digest that an opinion that was just published is "unpublished"). The Court included some nice and concise analysis of "mixed motive" vs. "pretext" jury instructions. I should note that the Plaintiff in this case failed to object at trial, so this analysis falls under a plain error standard:
“Whether a case is a pretext case or mixed-motives case is a question for the court once all the evidence has been received.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1098 (3d Cir.1995) (citation omitted). In a pretext case, the plaintiff must show that gender was a “determinative factor” in an adverse employment decision, while in a mixed-motives case, the plaintiff need only show that gender was a “substantial motivating factor.” See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000). A plaintiff must demonstrate with “sufficiently direct” evidence that gender was a motivating factor in the employer's decision to warrant a mixed-motives instruction. See id. 
The District Court did not commit plain error in treating this as a pretext case and instructing the jury accordingly. Kull did not present “sufficiently direct” evidence that gender played a role in the University's decision. The evidence Kull presented was circumstantial. He testified that certain women had been tenured despite having fewer publications, while a man's contract had not been renewed. From this circumstantial evidence, the jury was to conclude that the University applied less stringent criteria to women. It is not “sufficiently direct” evidence to justify a mixed-motives instruction under Watson.
The Court then affirmed the judgment in favor of the University.