In Kozlowski v. Hampton School Board, the Fourth Circuit in an unpublished opinion by District Judge Goodwin, joined by Judges Luttig and Michael, reversed the entry of judgment by the trial court on a defense verdict, concluding that "that the district court erred by excluding evidence of prior similar acts of age discrimination by Pearson, by admitting evidence of Kozlowski’s prior DUI arrests, and by refusing to sequester Pearson, a main defense fact witness," and also "erred by failing to instruct the jury that it could infer discrimination if it did not believe the proffered reasons for the nonrenewal," and that while "[a]ny one of these errors standing alone may have been harmless; considered collectively, however, the errors were substantially
prejudicial to Kozlowski’s case."
On other points, the Fourth Circuit concluded that the mixed-motive instruction offered by the court "satisfied Desert Palace even if that decision applies to the ADEA." Other discussion in the opinion seems to support the view that it is a waste to try to tell the jury all the details of the McDonnell-Douglas shifting burden proof scheme, as the Court observed: "Once the Board met its burden of production, the sole issue for the jury in this case was "the ultimate question [of] whether plaintiff has proved that the defendant intentionally discriminated against [him] because of his" age. . . . Because this was the only question for the jury, it would make no difference whether the jury understood this issue to be part of the plaintiff’s initial burden, the plaintiff’s ultimate burden, or both." Likewise, the Court noted, "Any
unnecessary confusion that the jury may have encountered in figuring out the interplay among the elements of the prima facie case, the defendant’s burden of production, and the plaintiff’s ultimate burden of proving discrimination is attributable primarily to the improper and needlessly complex jury instructions requested by the plaintiff in the first instance."
The Court agreed with the appellant's argument, based on the Reeves case, that the jury should have been instructed that "if it did not believe the reasons given by Pearson for the non-renewal, then it could infer, but need not infer, that age was the real reason for the decision." On this point, the Court said: "We do not suggest that a court in a pretext case must always instruct jurors that they may, but need not, infer discrimination from their disbelief of an employer’s stated reasons. Rather, we hold that when the evidence presented at trial creates some likelihood that the
jury might disbelieve the legitimate, non-discriminatory reasons given by the employer to justify its actions, then the jury should be instructed on this permissible inference." The Court refused to decide whether this error in itself would justify a new trial, in light of the other problems with the evidence and other instructions.