Lead Opinion
OPINION
{1} Plaintiff Carla Sonntag sued an Albuquerque corporation, Shaw and Associates, Inc. (the Corporation) and its owner, Jerry Shaw for discrimination under the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2000), and for breach of contract. See NMSA 1978, § 28-1-13(0 (1987) (providing that the district court’s judgment is “subject to further appeal to the supreme comí;”). She claimed that because of her gender she earned less than similarly situated male managers of a subsidiary corporation in Scottsdale, Arizona and San Diego, California, and that Defendants breached a contract to repurchase her stock in the company. At trial, the jury found for Plaintiff and awarded her $206,416 for her discrimination claim and $63,607 for her breach of contract claim. On appeal, Defendants argue that the jury’s verdict in favor of Plaintiff on her discrimination claim must be reversed because: (1) the trial court erred in allowing the president of the corporation to be sued in his personal capacity; (2) the trial court erred in allowing Plaintiff to compare her wages with those of the Scottsdale and San Diego managers; (3) the trial court erred in refusing to give a number of Defendants’ requested instructions to the jury; (4) the discrimination claim was unsupported by the evidence; and (5) the evidence did not support the amount of damages awarded by the jury for the discrimination claim. With regard to the breach of contract claim, Defendants urge this Court to reverse the trial court on the grounds that: (6) the jury was improperly instructed; (7) Plaintiffs breach of contract claim is not supported by the evidence; (8) the amount of damages awarded by the jury was excessive; and (9) Shaw should not be individually liable for the breach of contract.
{2} We hold that: (1) Mr. Shaw, the president of the Corporation, is not personally liable under the NMHRA because, while Plaintiff exhausted her administrative remedies against the Corporation, she failed to do so against Mr. Shaw individually; (2) the trial court properly allowed Plaintiff to compare her wages with those of the Scottsdale and San Diego managers; (3) the trial court properly instructed the jury with regard to the discrimination claim; (4) Plaintiffs discrimination claim was supported by the evidence; (5) the NMHRA damages were not excessive; (6) the instructions given to the jury on the breach of contract claim did not constitute reversible error; (7) Plaintiffs breach of contract claim was supported by the evidence; and (8) the breach of contract damages were excessive. We do not address Shaw’s final claim because he has failed to provide this Court with citations to relevant authority and has not argued this issue with sufficient particularity. See Rule 12-213(A)(4) NMRA 2001; see also Roselli v. Rio Cmtys. Serv. Station, Inc.,
I. FACTS AND PROCEDURE
{3} In April of 1992, Shaw and Associates, Inc., a New Mexico corporation that offers surety bonds to contractors, hired Carla Sonntag. Ms. Sonntag joined Jerry Shaw, the president of the Corporation, and four other employees at the Albuquerque office. Sonntag had never worked in the surety bond business, but she possessed a bachelor’s degree in business administration, had significant experience in management and accounting, and was familiar with the construction industry.
{4} Although Shaw referred to Plaintiff as the manager of the Albuquerque branch, the two parties disagree as to whether she actually managed the office. It is undisputed that Plaintiff was the lead underwriter of bonds for the Albuquerque office, that she handled more accounts than anyone at that office, and that she maintained the files and analyzed the financial statements. Plaintiff testified that, in addition to these duties, she was responsible for supervising all but one division of the Corporation’s Albuquerque staff, for hiring and terminating employees, and for generating new business. Various employees testified that they considered Plaintiff to be the manager of the Albuquerque office.
{5} The Corporation owns all of the stock in an Arizona subsidiary called Jerry Shaw and Associates, Inc., with offices in Scottsdale, Arizona, and San Diego, California. Mr. Shaw signed documents representing the Scottsdale and San Diego offices as “branch offices” of the Corporation, but denied that these two offices were branches at trial. Mr. Shaw testified that through his majority ownership of the Corporation, he exercises control over the subsidiaries. The Albuquerque and Scottsdale offices use a single networked computer system, file a single consolidated tax return, and are part of a single retirement plan.
{6} In 1994, the Scottsdale and San Diego offices were managed by males earning $40,000 and $80,000 respectively. Plaintiffs salary was $25,500. In 1995, the manager of the Scottsdale office was fired, and his replacement hired for a salary of around $60,000. In the meantime, Plaintiffs salary was increased to $35,000.
{7} In addition to their salaries, the Corporation offered the managers stock in the company. According to Plaintiff, unlike the other managers who she claimed were promised ten percent immediately, Mr. Shaw instead promised her that she would accumulate one percent of the outstanding shares in the company per year for up to ten years. Plaintiff also testified that Mr. Shaw promised to repurchase the stocks she accumulated when she left, regardless of the reason for her departure. Mr. Shaw testified that any payment for stock to Plaintiff was subject to an unwritten stockholder’s agreement that precluded payment to a stockholder who, like Plaintiff, took the Corporation’s customers with her to her new job. The Corporation did not buy back Plaintiffs shares. The Corporation did buy back the shares of the Scottsdale manager who was fired even though Mr. Shaw knew that he had taken accounts from the Scottsdale office to his new position.
{8} Naming only the Corporation as a defendant, Plaintiff filed a discrimination claim with the New Mexico Human Rights Division, complaining of harassment and wage discrimination based on sex. Pursuant to the NMHRA, Plaintiff timely appealed from the Division’s Order of Nondetermination. See NMSA 1978, §§ 28-l-10(D) (1995), -13(A). Plaintiff filed suit against the Corporation and Mr. Shaw, individually, alleging that Defendants: (1) discriminated against her on the basis of her sex in violation of NMSA 1978, §§ 28-1-7 and 28-1-13; (2) breached their contractual agreement to repurchase her stock once she left the corporation; and (3) oppressed a minority shareholder in violation of NMSA 1978, § 53-16-16 (1967) by excluding her from the profits of the Corporation and refusing to purchase her stock. Defendants filed a counterclaim which is not a subject of this appeal.
{9} Prior to trial, Defendants filed a motion for summary judgment, arguing that, as a matter of law, Plaintiffs discrimination claim must fail because she could not compare her wages to those of the Scottsdale and San Diego managers since those managers were employed by a subsidiary corporation. The trial court denied the motion on the grounds that material issues of fact existed. In addition, Defendants objected to the trial court’s refusal to give the jury fourteen of his fifty-three requested jury instructions. Finally, Defendants filed a motion for a judgment notwithstanding the verdict claiming, among other things, that Mr. Shaw could not be held personally liable under the NMHRA. The trial court denied that motion.
{10} The jury found in favor of Plaintiff on her discrimination and breach of contract claims, and awarded her verdicts of $206,416 and $63,607, respectively. Holding Defendants joint and severally liable, the trial court awarded Plaintiff $81,000 in prejudgment interest pursuant to NMSA 1978, § 56-8-4(B) (1993) and $53,630.67 in attorneys’ fees pursuant to Section 27-l-13(D). For reasons that the record fails to explain, the shareholder oppression claim did not reach the jury.
II. Wage Discrimination claim
{11} Under the NMHRA, “it is an unlawful discriminatory practice for ... an employer, unless based on a bona fide occupational qualification, ... to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of ... sex.” Section 28-l-7(A) (1987). In order to prevail, Plaintiff must demonstrate, by direct or indirect evidence, that the Corporation intentionally discriminated against her on the basis of her sex. See Smith v. FDC Corp.,
A. Individual Liability Under the NMHRA
{12} Defendants argue that the owner of a corporation cannot be sued in a personal capacity for a violation of the NMHRA. While Defendants cite precedent for the proposition that no personal liability exists under Title VII, they provide no such law with regard to the NMHRA. In fact, this Court has acknowledged the possibility of individual liability for discrimination claims. Cf. Luboyeski v. Hill
[3] {13} Although we reject the proposition that there can exist no individual liability under the NMHRA, we hold that in this case, Mr. Shaw cannot be held personally liable for Plaintiffs discrimination claim. Under the NMHRA, a plaintiff must exhaust his or her administrative remedies against a party before bringing an action in district court against that party. See Mitchell-Carr, 1999— NMSC-025, ¶ 10,
B. Comparing Wages with Employees of a Subsidiary
{14} Defendants filed a motion for summary judgment, arguing that Plaintiffs discrimination claim must fail because she cannot compare her earnings to those of the managers of the Scottsdale and San Diego subsidiary offices. The trial court denied the motion. On appeal, the Corporation contends that the denial of its motion for summary judgment was improper. We do not address the propriety of the trial court’s interlocutory ruling and instead address the Corporation’s arguments regarding this issue in our discussion of the sufficiency of evidence to support the jury’s verdict. See, e.g., Gonzales v. Las Vegas Med. Ctr.,
C. Jury Instructions
{15} The Corporation contends that the trial court committed reversible error with regal’d to the discrimination claim by failing to give the jury its requested instructions 1, 9,12 and 14-23. We review the trial court’s decision not to submit requested instructions to the jury for an abuse of discretion. See McDowell v. Napolitano,
{16} The record demonstrates that the Corporation’s requested jury instructions appear after the jury’s verdict and are not marked “given” or “refused” by the trial judge. Citing the proposition that “[i]n the absence of a record we assume that error has not been preserved,” Plaintiff argues that the placement of the instructions in the record precludes review of the Corporation’s claim. Hinger v. Parker & Parsley Petroleum Co.,
{17} The preservation of alleged error in a trial court’s refusal to give a requested instruction to the jury depends on whether another instruction on the same subject matter is given. See Rule 1-051(1) NMRA 2001. If a party wishes to preserve for appellate review the trial court’s decision to provide the jury with one instruction rather than another, that party must draw the court’s attention to a specific flaw in the given instruction. See id.; see also Sturgeon v. Clark,
1. Requested Instructions 1, 9, 12 and 15-18
{18} In the present case, the parties disagree as to whether the subject matter of instructions 1, 9, 12 and 15-18 were covered by other instructions. The Corporation argues that none of the given instructions addressed these proposed instructions and that it therefore preserved the claim of error by tendering the requested instructions. Plaintiff argues that the given instructions covered the Corporation’s requested instructions and that the Corporation therefore had to point out specific errors in the given instructions in order to preserve the claim. Specifically, Plaintiff argues that given instruction number 2, expressing the Corporation’s general denial of Plaintiffs contentions, covered requested instructions 1 and 15-18, regarding the Corporation’s denial of and defenses against both Plaintiffs claims. Plaintiff argues that this general denial provided the proper instruction to the jury since the Corporation’s other requested instructions were not true affirmative defenses. Cf. Archibeque v. Homrich,
{19} Rather than calling the court’s attention to the alleged defect in the given instructions, the Corporation merely objected generally to the trial court’s failure to give its requested instructions (as with requested instructions 15-18) or failed to record any objection whatsoever (as with requested instructions 1, 9 and 12). The Corporation therefore failed to preserve any alleged error with regard to the trial court’s refusal to instruct the jury on requested instructions 1, 9, 12, 15-18, and we decline to review them.
2. Requested Instructions Numbers H, 19-23
{20} The Corporation’s requested instructions 14 and 19-23 concerned the corporate parent-subsidiary relationship. None of the given instructions addressed this relationship, so the Corporation’s claim of error was preserved when it tendered these instructions. See Rule 1-051(1). As a general rule, a party is entitled to have the jury instructed on all correct legal theories of the case that are supported by substantial evidence. See Woolwine v. Furr’s, Inc.,
{21} Like much of the Corporation’s appeal, these instructions are predicated on the theory that an employee of a parent corporation may not compare her wages to employees of a subsidiary in order to establish discrimination under the NMHRA. As noted below, the law does not support this theory. Moreover, the evidence showed that the Corporation directly controlled the wages of the relevant employees, thus obviating any need for the parent-subsidiary analysis. The Corporation’s theory was not supported by the evidence, and the trial court properly refused the instructions. See Archibeque,
D. Sufficiency of the Evidence
{22} The Corporation also argues that the discrimination claim is unsupported by the evidence and that the award of damages is excessive and unsupported by the evidence. “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Behles v. New Mexico Pub. Serv. Comm’n (In re Timberon Water Co.),
{23} The Corporation stresses that the Scottsdale and San Diego managers work for a subsidiary and argue that the three employees cannot therefore be measured against each other in order to determine whether one was the victim of discrimination. In other contexts, New Mexico courts have recognized that a subsidiary and its parent are generally viewed as independent corporations. See Scott v. AZL Res., Inc.,
{24} Citing Frank v. U.S. West, Inc.,
{25} Amicus asks us to adopt a second body of law, based on the Equal Pay Act, 29 U.S.C. § 206(d) (1994), in support of its contention that Plaintiffs discrimination claim should have been denied at the summary judgment stage. Citing Mulhall v. Advance Security, Inc.,
{26} Neither the Corporation nor Amicus have cited any authority precluding an employee of a parent corporation from comparing her earnings to the employees of subsidiaries. In the absence of such law, whether the discrepancy in earnings between Plaintiff and the subsidiary managers was the result of intentional discrimination or merely a product of the parent-subsidiary distinction remains a genuine issue of material fact. The trial court properly denied Defendants’ motion for summary judgment. We now question whether the jury could have reasonably inferred that the discrepancy in earnings resulted from the Corporation’s intentional discrimination.
{27} In Smith, we borrowed from the federal methodology for establishing discrimination claims under Title VII of the Civil Rights Act when no direct evidence of discriminatory motive exists.
{28} We first address whether Plaintiff made a prima facie case of discrimination in keeping with the first step of McDonnell Douglas. This Court has not yet had the opportunity to enunciate the elements of a prima facie case for wage discrimination under the NMHRA. As in Smith, we again borrow from the federal analog. Under Title VII, a plaintiff establishes a prima facie case for wage discrimination by showing that her job is similar to that of higher paid male employees. See Sprague v. Thorn Ams., Inc.,
{29} In the present case, Plaintiff provided evidence that she and the Scottsdale and San Diego managers occupy similar positions. Plaintiff testified that she performed essentially the same duties as the managers of the Scottsdale and San Diego offices, but that she was responsible for more employees and more business than the other two. She points out that in 1994, the managers of the Scottsdale office made $15,000 more than she did and the San Diego manager earned $55,000 more. In 1995, a manager hired to replace the previous Scottsdale manager earned $25,000 more than she did. In addition, she complains that the Corporation provided these managers with significantly more stock in the company. This evidence could have led a reasonable jury to conclude that the Corporation paid the male managers more than Plaintiff despite their similar positions. We hold that Plaintiff made a prima facie showing of discrimination.
{30} Although the Corporation’s position that Plaintiffs wages cannot be compared with those of the Scottsdale and San Diego managers does not bar Plaintiffs claim, it does constitute a rebuttal of Plaintiffs prima facie case. In other words, the Corporation’s argument that the offices and positions are incomparable implies that the pay disparity stems from legitimate, nondiscriminatory reasons, namely that Plaintiff and the subsidiary managers were not similarly situated. These reasons satisfy the Corporation’s burden of providing a non-diseriminatory explanation for the pay differential.
{31} The burden then shifted back to Plaintiff to demonstrate that the Corporation’s proffered explanation for the pay differential was pretextual. Here, Plaintiff offered evidence that she was equally if not more valuable to the company than the managers who were paid significantly more than she was. In addition, Plaintiff testified that Mr. Shaw had declared that she was “easily worth double” the amount he was paying her. Finally, when Plaintiff left the Corporation, she filled a similar position in the surety business at a salary similar to that of the male managers of the subsidiaries. This evidence could reasonably have caused the jury to reject the Corporation’s claim that the wage differential stemmed from differences between the offices or different levels of experience between the employees. Such a rejection, combined with the acceptance of Plaintiffs prima facie case, may have properly allowed the jury to infer the ultimate fact of intentional discrimination. See St. Mary’s Honor Ctr.,
E. Amount of Damages
{32} The Corporation also argues that the jury’s award of damages was excessive and not supported by the evidence. With regard to damages, “[t]he findings of the jury should not be disturbed as excessive except in extreme cases, as where it results from passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive where palpable error is committed by the jury, or where the jury has mistaken the measure of damages.” Allsup’s Convenience Stores, Inc. v. N. River Ins. Co.,
III. BREACH OF CONTRACT CLAIM
{33} Plaintiff testified that the Corporation agreed to give her one-percent of the outstanding shares of its stock for each year that it employed her. According to Plaintiff, the Corporation also agreed to repurchase that stock at book value at whatever time she decided to leave the Corporation. Plaintiff left the Corporation in December of 1995 and sued for three percent of the stock, representing one percent for each of the three years she had been employed by the Corporation. Defendants argue that any agreement to repurchase Plaintiffs shares was subject to a shareholders’ agreement that Plaintiff would forfeit her shares if she took the Corporation’s customers with her to her new job. Defendants urge us to reverse the jury’s verdict on the breach of contract claim based on their assertion that the jury instructions were improper, that the verdict was not supported by sufficient evidence, and that the amount of damages was excessive.
A. Jury Instructions
{34} Defendants argue that instruction number 7, which was given to the jury, miseharacterized their position on the breach of contract claim. Instruction number 7 stated that “the parties agree that there was a contract to provide stock in Shaw and Associates, Inc., to Ms. Sonntag which would be repurchased when she left Shaw’s employment. What is in dispute is whether there was a modification of that contract.” Defendants suggest that Mr. Shaw never agreed to the existence of a contract to repurchase stock. Accordingly, Defendants assert that requested instruction number 3 should have been given in lieu of number 7. Requested instruction number 3 reads:
[T]he parties agree that there was a commitment to issue 1% of the outstanding shares of stock per year for up to a ten-year period. What is in dispute is whether the agreement to issue the shares was subject to a shareholders agreement to repurchase the shares when Sonntag terminated her employment or if Sonntag forfeited her shares in the event the cus: tomers of the defendant Shaw became customers of her or her new employer.
Defendants preserved this claim of error by alerting the court to the alleged defect in instruction number 7. Again, we review the trial court’s decision to give instruction number 7 rather than instruction number 3 for an abuse of discretion. See McDowell,
{35} Apparently, Defendants’ claim of error with regard to instruction number 7 is two-fold. First, they argue that the trial court committed error by giving the jury an instruction that suggested that the parties agreed that there was a “contract” rather than a “commitment.” Second, Defendants contend that instruction number 7 improperly asked the jury to determine whether the contract was modified, rather than whether the “commitment” was subject to a shareholders’ agreement at the time of commencement. In them own brief, Defendants use the words “commitment,” “agreement,” and “contract” interchangeably. Defendants do not argue that no contract existed. In any ease, we do not perceive, nor do Defendants even suggest, any prejudicial result that might have stemmed from the jury’s exposure to the word “contract” instead of the word “commitment.”
{36} The essence of Defendants’ argument seems to stem from them position that the contract was subject to restrictions at its inception, rather than, as the given jury instruction suggests, after it was modified. Defendants fail to support this contention with evidence that the agreement was subject to the non-compete clause at the time of commencement. Moreover, Defendants once again fail to demonstrate how this distinction might have prejudiced their case. To the extent that jury instruction number 7 erroneously miseharaeterized Defendants’ position, we hold that any alleged error was harmless.
B. Sufficiency of the Evidence
{37} As mentioned above, in considering an insufficient evidence claim, we question whether substantial evidence supports the result reached by the trial court. See Gillingham,
C. Amount of Damages
{38} In closing argument, Plaintiffs counsel implored the jury to award breach of contract damages ranging from $58,950 (representing 3 percent of the book value of the company in 1996 plus ten percent interest) to $87,600 (representing 3 percent of the book value of the company in 1999 plus interest). The jury awarded Plaintiff $63,607 in contract damages. Defendants argue that Plaintiffs contract damages should be measured at the time of the breach of contract, rather than at a later date. We agree. Cf. Bd. of Educ. of Alamogordo Pub. Sch. Dist. No. 1 v. Jennings,
IV. CONCLUSION
{39} Defendant Jerry Shaw is not personally hable for the discrimination claim damages. In ah other respects, the jury’s verdict and award of damages for the discrimination claim are affirmed. The breach of contract verdict is affirmed, and the award of damages for that claim is remanded to the trial court.
{40} IT IS SO ORDERED.
Concurrence Opinion
(concurring in result).
{41} I concur in the result. However, I respectfully disagree with the majority’s analysis of several issues in this case. I write separately to indicate my position on these issues and to provide some guidance to trial courts and practitioners in formulating jury instructions in Human Rights Act cases.
{42} With respect to individual liability under the Act, I believe that the majority, in dicta, uses overly broad language that could be subject to misinterpretation. The majority states, “Defendants also argue that the owner of a corporation cannot be sued in a personal capacity for a violation of the NMHRA.” The majority then rejects this argument. By using the phrase, “owner of a corporation,” in construing Shaw’s argument, the majority opens the door to shareholder liability for discrimination under the Act. Because Shaw’s argument against individual liability focused on his role as an employee of the Corporation rather than as an owner of the Corporation, I presume that the majority’s characterization of this issue is unintentional. Otherwise, it could be misinterpreted as expanding liability under the Act beyond what was contemplated by the Legislature. Section 28-l-7(A), the provision under which Sonntag brought her claim, prohibits discrimination by “an employer.” The Act defines an “employer” as “any person employing four or more persons and any person acting for an employer.” Section 28-l-2(B). Thus, Shaw is liable only to the extent that he acted for the Corporation in the discriminatory acts. He is not individually liable solely because of his ownership in the Corporation. I do not believe that the Legislature intended for courts to disregard an employer’s corporate structure in determining liability under Section 28-1-7(A). See generally Garcia v. Coffman,
{43} I also believe that the majority’s discussion of subsidiaries expands liability under the Act beyond the intent of the Legislature. I am in complete agreement with the majority’s rejection of the single establishment requirement from the Equal Pay Act. However, I believe that the majority lacks a sound basis for rejecting the federal tests that determine whether a parent corporation and a subsidiary should be considered a single entity. The majority claims that these tests are inapposite because they only determine whether a parent corporation is liable for the acts of its subsidiaries and because Plaintiff does not seek to hold the parent liable in this ease for acts of the subsidiary. I respectfully believe the majority is mistaken on two counts. First, Plaintiff is attempting to hold the parent corporation liable for its subsidiary’s act of paying the subsidiary’s managers a higher salary than the parent’s manager. Second, the federal tests go beyond the limited use asserted by the majority. These tests are designed more generally to determine whether the different acts at issue in the ease are those of a “single employer” for purposes of Title VII. See Romano v. U-Haul Int’l,
{44} With respect to the parent-subsidiary relationship, the majority asserts that Defendants and Amicus failed to cite any authority that would preclude a comparison of earnings between an employee of a parent corporation and employees of its subsidiaries. On the contrary, however, Defendants relied on this Court’s opinion in Cmttenden. Under that case, a subsidiary and a parent are viewed as independent corporations, and thus, the Scottsdale and San Diego managers were employees of Jerry Shaw and Associates, Inc., an Arizona corporation, and not of Shaw and Associates, Inc., the New Mexico corporation. Because, for a disparate treat- ’ ment claim under the Act, an employee must demonstrate that the employer took adverse employment action against the plaintiff in comparison with another employee who is similarly situated, the plaintiff must show, as an initial matter, that the comparison individuals are employees of the employer. In this case, the Act required Plaintiff to show that the Scottsdale and San Diego managers were employees of Shaw and Associates, Inc. Thus, Plaintiff had to demonstrate why the employees of the Arizona corporation should be considered the employees of the New Mexico corporation for purposes of Section 28-l-7(A), despite the parent-subsidiary structure. The federal tests summarily dismissed by the majority would seem particularly helpful in resolving this question.
{45} Even though I believe that the trial court should have instructed the jury concerning the parent-subsidiary structure of the corporation in accordance with either the instrumentality or integrated enterprise tests discussed in Frank,
{46} The final issue on which I hold a different view from the majority is the trial court’s instructions to the jury concerning the requisite facts Plaintiff had to prove in order to support a claim of discrimination. Initially, I respectfully disagree with the majority’s interpretation of Rule 1-051(1) and its conclusion that the Corporation failed to preserve this issue. The majority’s interpretation conflicts with case law discussing this rule and with precedent from this Court discussing a nearly identical rule of criminal procedure. The purpose of the preservation requirements in Rule 1-051(1) is similar to the purpose of the requirement of preservation in Rule 12-216(A): to ensure that a ruling by the trial court is fairly invoked by the parties. In Andrus, the Court of Appeals stated that “[t]o preserve error in instructing the jury, the gas company was required to object or tender a correct instruction.”
{47} In this case, Defendants tendered numerous instructions outlining Plaintiffs burden in proving discrimination under the Human Rights Act, specifically the burden to prove that the comparison employees were similarly situated and that Defendants’ proffered reason was false. For example, Defendants’ Instruction 1 would have informed the jury of Defendants’ claim “that [Plaintiffs] job was not substantially the same, nor did she have the same responsibilities or apply the same effort or have the same authority or job skills as the managers of the subsidiary corporation. Shaw states that Sonntag was not a manager in the same sense as the managers of the offices in the subsidiary corporation.” Defendants’ Instruction 9 provided:
You must consider any legitimate, nondiseriminatory reason or explanation stated by Shaw and Associates for its decision. If you find that Shaw and Associates has stated a valid reason, then you must decide in favor of Shaw and Associates unless Sonntag proves by a preponderance of the evidence that the stated reason was not the true reason but is only a pretext or excuse for discriminating against Sonntag because of her gender.
The trial court instructed the jury as follows:
To establish a claim of discrimination on the part of defendant Shaw, Ms. Sonntag has the burden of proving the following contentions: 1. That Shaw paid Ms. Sonntag a lower salary than would have been paid if she had been male; or 2. That Shaw committed to issue to Ms. Sonntag less stock in Shaw and Associates than would have been issued or committed if she had been male; and 3. That Shaw’s actions were, more likely than not, motivated by the plaintiffs sex.
Defendants objected to the court’s refusal of their instructions. Presumably, the trial court rejected Defendants’ proffered instructions based on its apparent belief that this given instruction and a single sentence articulating a general denial by Defendants adequately informed the jury about the nature of a discrimination claim under the Act. The trial court clearly considered and ruled on Defendants’ proffered instructions. Defendants therefore fairly invoked a ruling from the trial court as to whether to instruct the jury on the requirement that the other managers be similarly situated with Plaintiff and whether to instruct the jury that Plaintiff bore the burden of proving pretext. Defendants preserved this issue under both the plain language and the underlying purpose of Rule 1-051(1).
{48} I believe that the trial court erred in refusing Defendants’ tendered instructions. As indicated by the majority, this Court has adopted the McDonnell Douglas test in our interpretation of Section 28-l-7(A). As a result, a plaintiff attempting to demonstrate discrimination through disparate treatment must prove that the employer treated the plaintiff differently from other employees who are not members of the relevant protected class and who are similarly situated in all relevant respects with the plaintiff. The plaintiff must also prove that the employer’s proffered reason for the adverse employment action is false. The McDonnell Douglas test is a bm'den-shifting mechanism that assists courts in deciding whether a case should be submitted to a jury. As a result, courts have uniformly held that it is improper to include the entire McDonnell Douglas test in instructions to the jury due to the potential for juror confusion over the highly technical burden-shifting aspect of the test. See, e.g., Dudley v. Wal-Mart Stores, Inc.,
{49} I believe this approach is consistent with the United States Supreme Court’s opinions in St. Mary’s Honor Center and Reeves v. Sanderson Plumbing Products, Inc.,
{50} Moreover, this Court has long held that a party is entitled to an instruction on a proper theory of the ease as long as the theory is supported by the evidence. In this case, Defendants had two theories of the case that were supported by the evidence: (1) that the San Diego and Scottsdale managers were not similarly situated with Plaintiff; and (2) that the difference in pay was based on bona fide job qualifications such as education and experience. The given instructions did not inform the jury of these theories. Thus, I believe that the trial court erred in refusing Defendants’ tendered instructions concerning Plaintiffs burden in proving her claim of discrimination.
{51} Nonetheless, I do not believe that the instructional error in this ease requires reversal. The instructions given by the trial court placed the ultimate question contained in Section 28-l-7(A) before the jury. In addition, the jury had the benefit of arguments by the parties concerning the different aspects of Plaintiffs claim of discrimination. While I believe that the jury would have benefitted from greater detail in the instructions and that Defendants were entitled to have the jury instructed on their theory of the case, I would conclude that the failure to instruct the jury with greater specificity on Plaintiffs burden amounted to harmless error. Cf. White v. N.H. Dep’t of Corr.,
Notes
. Additionally, I do not believe that Luboyeski and Mitcheil-Carr decided the issue of individual liability. See, e.g., Fernandez v. Farmers Ins. Co.,