156 F.3d 31

BAILEY ALDRICH, Senior Circuit Judge,
concurring:
The difficulty of the issue that principally divides the court is indicated by the fact that discussion of the jury’s question that led to a three sentence supplemental instruction, occupies 18 pages of transcript. My disagreement with our dissenting brother is based on my assessment of the jury’s thinking as shown by its question, and my belief that if a jury hears twice from the same source it is likely to emphasize, if not concentrate on, what it has last heard.
The jury’s question is interesting. We do not have the exact language, but it appears to have requested a legal definition of “motivating factor,” and “how much weight is to be rendered to make a decision?” Since it had been instructed as to what is generally needed to meet the burden of proof I assume great thought went into this question: Is it enough for gender to be a concurrent factor, or does motivating require sufficient weight to itself effect the decision? This last is what it was told. What the dissent labels as part (b) of the court’s response to the question, “not necessarily inconsistent with the established standards governing pretext cases,” (a bit overgrudging, I prefer “consistent” to not “necessarily inconsistent”) the dissent would diminish because presumably “colored by the original ‘a motivating factor’ instruction.” But was it not just because the jury was not satisfied by the original instruction that it asked for illumination? With great respect, is it not unfair to say that the questioned shadow persisted? I say particularly unfair when defendant’s last remark was an assent. The jury had received an apparently full answer to its question, and I do not believe it is to be thought to have reached back and modified it by what had bothered it before. I read (b) and (c) together as understood to mean that plaintiff must show that discrimination was of sufficient weight to itself warrant the discharge, and it was in fact the activating cause. To this defendant can have no complaint. Where its answer embraced the exact subject matter of the jury’s inquiry the court was entitled to believe it was complete. Fairness required defendant to speak up if it disagreed. Wilson v. Maritime Overseas Corp., 150 F.3d 1, 7 (1st Cir.1998).

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