because such an instruction had "significant potential to confuse juries,” was "designed to allocate burdens and promote the orderly presentation of evidence,” and "evades the ultimate question of discrimination,” which should be the focus of the fact finders. Id. at 541-42. In reaching its conclusion, the Ninth Circuit Court of Appeals surveyed the cases on this subject: Some decisions criticize any use of the McDonnell Douglas formulation in instruct ing the jury, emphasizing that the only question that should go to the jury is the ultimate question of discrimination; other circuits condemn the use of legalistic language and the complexities of burden shifting without rejecting the McDonnell Douglas framework outright. See Cabrera v. Jakabovitz, 24 F.3d 372, 380-82 (2nd Cir.1994) (<HOLDING>); Watson v. Southeastern Pa. Transp. Auth., 207
holding that a prima facie case is subject to independent review holding that although a jury instruction that included the phrase prima facie case and referred to defendants burden of production created a distinct risk of confusing the jury in certain instances it would be appropriate to instruct the jury on the elements of a prima facie case holding that although it is proper to instruct the jury that it may consider whether the factual predicates necessary to establish the prima facie case have been shown it is error to instruct the jury on the mcdonnell douglas burden shifting scheme holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case