Henrietta Browning v. United States of America
Filed 05/22/09
Ninth Circuit Court of Appeal
Cite as 07-35557

Court’s Refusal to Give Jury Instruction Affirmed

Henrietta Browning is an employee of an Internal Revenue Service call center in Portland, Oregon, since 1989. She was promoted as a team leader and in 2002, was transferred from the night shift to the day shift under the supervision of department manager Art Ayotte.

In Ayotte’s 2003 performance evaluation for Browning, he rated her as not having met expectations. Thus, Browning was placed on a 60-day performance improvement plan (“PIP”) to address her shortcomings. However, Browning still did not manage to complete the required number of phone reviews for employees within her application or submitted requisite employee security reviews.

Ayotte then recommended that Browning for demotion which Browning contested. A labor relations specialist said that excluding a miscommunication that was responsible for Browning’s failure to complete one element of her PIP requirements, her other objections were invalid and Browning subsequently demoted as a taxpayer service specialist.

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. When the EEO investigation found no discrimination had occurred, Browning filed this lawsuit in federal district court for racial discrimination and retaliation.

At the close of trial, Browning requested that an instruction be given to the jury to wit: “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.”

The district court refused to give the requested instruction. Hence this appeal. Browning contends that the refusal to give a permissive pretext instruction was reversible error.

The Court of Appeals however, upheld the court’s decision based on the following:

• Jury instructions are reviewed for an abuse of discretion, whether they were misleading or inadequate.
• In Cassino v. Reichhold Chemicals, Inc., it was held that refusal to give a permissive pretext jury instruction was not reversible error.
• Further, even if the court refused to give Browning’s more explicit pretext instruction, the court told Browning that she was free to explain to the jurors that they could find the IRS’s reasons for firing her to be pretextual and infer an unlawful motive.

Thus, the CA held that the district court did not abuse its discretion in rejecting Browning’s more explicit pretext instruction based on a previous ruling from the Cassino case.