The Sixth Circuit holds that a fouled-up jury instruction in a Title VII/§ 1981 retaliation trial is not plain error in this non-precedential decision, though one of the panelists dissents.
Alsobrook v. UPS Ground Freight, Inc., No. 08-5285 (6th Cir. July 27, 2009): Plaintiffs alleged that they suffered retaliation “through intimidation, increased responsibilities, and undesirable work assignments” after complaining about racial harassment. After a ten-day trial, The jury was instructed as follows about the standard of liability: a plaintiff “must show that he suffered a materially adverse change in the terms or conditions of employment because of the employer’s actions.” Though plaintiffs were represented at trial by counsel, the record is apparently void of objection to this language, despite that the Supreme Court in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 68 (2006), adopted a more generous standard (i.e., “well might have dissuaded a reasonable worker from making” a complaint).
On appeal, pro se, the plaintiffs lose once again, in substantial part because they did not provide the panel with a trial transcript to allow the court to evaluate the materiality of the error. “The plaintiffs presumably testified at trial, but we have no record of the content or credibility of that testimony. It is the appellants’ duty to provide us with those portions of the transcript which they deem necessary and relevant to their issues on appeal. See Fed. R. App. P. 10(b)(1)(A), (2). Similarly, while the plaintiffs supported their opposition to summary judgment with the affidavits of several coworkers, without a trial transcript we are left only to speculate whether any of those persons actually testified, and what the value of any such testimony might have been. We also note that during the charge conference, the district court described this case as ‘[c]ertainly not the most egregious case we have had at all . . . .'”
Judge Cole dissents, contending that the obviousness of the mistake — admitted by the majority — suffices to warrant reversal: “Based on the instructions that the district court gave, the jury could not have found that Plaintiffs suffered an adverse employment action-a key element of their retaliation claim. The adverse employment action forming the basis of the retaliation claim that went to the jury was that Plaintiffs were denied certain training opportunities, and received more difficult work assignments. Thus, the alleged adverse employment action did not come within the standard that the court provided to the jury-Defendant did not terminate Plaintiffs, nor did Defendant reduce their pay, responsibilities, or benefits. The jury never considered whether Defendant’s actions in assigning Plaintiffs more difficult work ‘might dissuade a reasonable worker’ from making a claim of racial discrimination.”