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Browning v. United States

May 22, 2009

HENRIETTA BROWNING, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF TREASURY; UNITED STATES INTERNAL REVENUE SERVICE; HENRY M. PAULSON, JR.,*FN1 SECRETARY OF THE DEPARTMENT OF THE TREASURY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding D.C. No. CV-05-01471-BR.

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted March 3, 2009 -- Portland, Oregon.

Before: Susan P. Graber, Raymond C. Fisher and Milan D. Smith, Jr., Circuit Judges.

OPINION

We address the issue of whether a district court's refusal to give a permissive jury instruction regarding pretext in an employment discrimination case is reversible error.*fn2 We reaf-firm that so long as the jury instructions set forth the essential elements that the plaintiff must prove, a district court does not abuse its discretion in declining to give an instruction explicitly addressing pretext.

I.

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, incoming operations manager Gloria Candanoza made Browning's promotion permanent. After Browning transferred from the night shift to the day shift in 2002, she was supervised by department manager Art Ayotte.

As a team leader, Browning was required to monitor a certain number of the calls performed by each employee on her team each month, write a detailed critique of the call and enter the review into a computerized database. Team leaders were also each assigned responsibility for an "application" (a distinct area of tax law) and expected to similarly monitor employees' performance regarding that application. In 2003, Ayotte's performance evaluation for Browning rated her as not having met expectations because she had failed to complete the required number of phone reviews, and Browning was placed on a 60-day performance improvement plan ("PIP") to address her shortcomings. Browning met with Ayotte weekly during the course of her PIP and believed she was on pace to satisfactorily complete the PIP requirements. At the end of her PIP, however, Ayotte concluded that Browning still had not completed the required number of phone reviews for employees within her application or submitted requisite employee security reviews, and recommended that Browning be demoted. Browning contested the demotion, but - although a labor relations specialist agreed a miscommunication was responsible for Browning's failure to complete one element of her PIP requirements - the rest of her objections were found not to be valid and Browning was demoted.

Browning was reassigned to her former position as a taxpayer service specialist.

II.

In November 2003, Browning filed a complaint with the Equal Employment Office alleging racial discrimination and retaliation for a prior EEO complaint that Browning had brought against another supervisor. After the EEO investigation found no discrimination had occurred, Browning filed this lawsuit in federal district court alleging racial discrimination and retaliation. 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, ...


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