3d Cir. Model Jury Instr. (Civil) 10.1.3

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Last updated March 2026

plaintiff retains the ultimate burden of proving intentional discrimination. 28 Chipollini v. Spencer 95

Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987) (en banc) (ADEA case) ( “The burden remains with 96

the plaintiff to prove that age was a determinative factor in the defendant employer’s decision. The 97

plaintiff need not prove that age was the employer ’s sole or exclusive consideration, but must 98

prove that age made a difference in the decision. ”). The factfinder’s rejection of the employer ’s 99

proffered reason allows, but does not compel, judgment for the plaintiff. See Reeves v. Sanderson 100

Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“In appropriate circumstances, the trier of fact 101

can reasonably infer from the falsity of the explanation that the employer is dissembling to cover 102

up a discriminatory purpose. ”). The employer ’s proffered reason can be shown to be pretextual 103

by circumstantial as well as direct evidence. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d 104

Cir. 1987) (en banc). “To discredit the employer’s proffered reason . . . the plaintiff cannot simply 105

show that the employer ’s decision was wrong or mistaken, since the factual dispute at issue is 106

whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, 107

prudent or competent.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997). 108

See generally Lichtenstein v. University of Pittsburgh Medical Center , 691 F.3d 294, 309-12 (3d 109

Cir. 2012) (after holding that the plaintiff had made out a prima facie case and that the defendant 110

had offered a legitimate reason for firing the plaintiff, holding that the plaintiff had adduced 111

evidence from which a jury could find pretext); Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 112

149, 159 (3d Cir. 2015) (“Hansler alleges she attempted to invoke her right to leave, she was not 113

advised of deficiencies in her medical certification, she was not provided a cure period, and she 114

was fired a few weeks later as a result of her leave request. Through discovery, Hansler might be 115

able to show that Lehigh Valley had a retaliatory motive and that the stated reason for termination 116

was pretextual.”). 117

29In Lupyan v. Corinthian Colleges Inc., 761 F.3d 314 (3d Cir. 2014), the Court of Appeals vacated

the grant of summary judgment to the defendant on the plaintiff’s FMLA retaliation claim, holding

that the plaintiff had presented evidence from which a jury could find pretext, see id. at 325-26.

The plaintiff had been told “that she was being terminated from her position at CCI due to low

student enrollment, and because she had not returned to work within the twelve weeks allotted for

FMLA leave. ” Id. at 317 . According to the plaintiff, “this was the first time she had any

knowledge that she was on FMLA leave.” Id. Although the Court of Appeals noted “that Lupyan’s

employment legally ended upon expiration of her FMLA leave, ” it held that “Lupyan’s return

outside of the twelve week window does not preclude her retaliation claim under the circumstances

here.” Id. at 324-25 (“The FMLA’s protection against retaliation is not limited to periods in which

an employee is on FMLA leave, but encompasses the employer ’s conduct both during and after

the … FMLA leave.” (quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768–69 (5th

Cir. 2001))). Noting record evidence that “even if a downturn in enrollment had occurred, it was

highly unusual for CCI to respond by terminating Lupyan ’s position, ” that the asserted hiring

freeze might not actually have existed, and that any hiring freeze would not cover a current

employee, the Court of Appeals found a jury question on the issue of pretext. See id. at 325.