Opposition Brief — Slathar v. Sather Trucking Corp.

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No.

Mh SK

In THE .

Supreme Court of the Hnited States

OcToBer TERM, 1996

DONALD A. SLATHAR,

Petitioner,

V.

SATHER TRUCKING CorRPORATION, an Iowa corporation;

SaTuers, INc., a Delaware corporation,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

RESPONDENT SATHERS INC.'S

BRIEF IN OPPOSITION

MILLER & MArtTIN

WILLIAM G. TRUMPETER*

Tennessee Bar No. 9301

KarEN M. SMITH

Tennessee Bar No. 15042

Suite 1000, Volunteer Building

832 Georgia Avenue

Chattanooga, Tennessee 37402

(423) 756-6600

Attorneys for Respondent

Sathers Inc.

*Counsel of Record

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester. MO 63011 314-231-4477

QUESTIONS PRESENTED

Whether the U.S. District Court for the District of Minne-

sota fairly and adequately instructed the jury as to the

substantive law under the Age Discrimination in Employ-

ment Act?

Whether the U.S. District Court for the District of Minne-

sota abused its discretion by excluding from evidence the

stray remarks of a non-decision maker concerning her

opinion regarding the motivation behind the petitioner’s

termination?

Whether compelling reasons exist warranting review by

this Court of evidentiary and jury-charge questions in a

garden-variety age discrimination case?

PARTIES TO THE PROCEEDING

The names of all parties to the proceeding in the Court whose

judgment is sought to be reviewed are contained in the caption

of the case in this Honorable Court.' Entities related to the

Respondent, Sathers Inc., include Sather Trucking Company, an

Iowa corporation, and Sather Realty, a Minnesota partnership.

' Since Sather Trucking Company was dismissed as a defendant by the trial

court, Sathers Inc. is the only Respondent herein.

TABLE OF CONTENTS

QUESTIONS PRESENTED .......csssssssccssssscsssessseseeeses

PARTIES TO THE PROCEEDING o.....:ssssseccsssseeesese

TABLE OF AUTHORITIES .....ccssssssscccosssssscssssssssoe

i

SUMMARY OF ARGUMENT. ..............cccccsceseeseeeeees

PT Gg tienes cvaasipassdibeinincescdriicanscvesindccosoveseea

3

I.

THE U.S. DISTRICT COURT FAIRLY AND

ADEQUATELY INSTRUCTED THE JURY

AS TO THE SUBSTANTIVE LAW UNDER

SN eet biniatpdabiacdadindintiaicitinksecnovsiverss

THE U.S. DISTRICT COURT DID NOT

ABUSE ITS DISCRETION BY EXCLUD-

ING FROM EVIDENCE THE STRAY RE-

MARKS OF A NON-DECISION MAKER

CONCERNING HER OPINION REGARD-

ING THE MOTIVATION BEHIND

PETITIONER’S TERMINATION SINCE

THE WITNESS WAS NEITHER CON-

SULTED ABOUT NOR PARTICIPATED

BE ROMNE ME NOIE RS ecsestasesuckctersstosiecesiscorsane

I i ica rasespbiabajaretndusoysiisscoasestsossnsnsesais

oO ws N

10

19

25

APPENDIX

Portions of Anita Darnell’s deposition testi-

—

TABLE OF AUTHORITIES

Page(s)

Cases:

Allen v. Diebold, Inc., 33 F.3d 674 (6th Cir. 1994)....... 18

Bashara v. Black Hills Corp., 26 F.3d 820 (8th Cir.

SUN id bar tateksviicine horses Maik inte oie nee ea 20

Beith v. Nitrogen Products, Inc., 7 F.3d 701 (8th Cir.

RTE cipliscistuinigicuismaaccsiele eee ogee 10,18

Beshears v. Asbill, 930 F.2d 1348 (8th Cir. 1991)........ 20

Blackwell v. Sun Elec. Corp., 696 F.2d 1176 (6th Cir.

BPD ncthiictediniabiiacicitth icstaeelaetieck ee: 14

Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326

CON I iii ce Se es 24

Cabrera v. Jakabovitz, 24 F.3d 372 (2nd Cir.), cert.

denied, __ U.S.__, 115 S. Ct. 205 (1994) ........ 13

Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338

(9th Cir. 1987), cert. denied, 484 U.S. 104

(FPOOT Kicadealiciatieicuteabicuddaiiua zaacaeaes 14

Crimm v. Missouri-Pacific RR Co., 750 F.2d 703 (8th

Ree SED Licicnsssiacinsnispaatabianainc aimee a 22

Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994), cert.

denied, __ U.S.__, 115 S. Ct. 2612 (1995). ..... 13,18

Haskell v. Kaman Corp., 743 F.2d 113 (7th Cir

RU eerie ate iinet stieray Rae OR as eae NAP 24

Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct.

1701, 123 L. Ed.2d 338 (1993) woe 7,12,16,17,18

Hermeling v. Montgomery Ward & Co., 851 F. Supp.

ESD CD. BE: BED sv ccecsescceasvcesssistanittiiinialihbeies 20

Holley v. Sanyo: Mfg., Inc., 771 F.2d 1161 (8th Cir.

POND cussininnenssivasieshiidisostsnbiicaicsesiudiiota kisieaiesialataieaedapiaiaia 15,18

Houghton v. Sipco, Inc., 38 F.3d 953 (8th Cir.

DDD), iricinisvvidisinscadisieipestibnnvninisineisiddigaaniaibiaidiin 15

Jorgensen v. Modern Woodmen of America, 761 F.2d

SOS CG. Fe sitsiiincsnstclesrscinestigiiasiinatiaiilten 16

Kansas City Power & Light v. Ford Motor Credit Co.,

995 F.2d 1422 (Sth Cir. 1993).....cccsscreseocsscsscosocosese 10,15

Kier v. Commercial Union Ins. Co., 808 F.2d 1254 (7th

Cir. 1987), cert. denied, 481 U.S. 1029 (1987)..... 24

Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984), cert.

denied, 474 U.S. SUF (USCS). .ccssncsvessosssestveieesteoriuns 14

Krueger v. State Farm Mut. Auto. Ins. Co., 707 F.2d 312

(Othe ik, RRS ddciscninccctetinio nsec tiekkeoendaionn 22

Loeb v. Textron, 600 F.2d 1003 (Ist Cir. 1980)............. 9,13

Mauter v. Hardy Corp., 825 F.2d 1554 (11th Cir.

BGI TY visinascictsnnamnsnssxnvcstiecincteesuvedadeeleneaemmea masa 24

McDonnell Douglas Corp. v. Green, 411 U.S. 792,93 S.

Ct. 1817,36 L. B2e GOS CUFT Sy aiscenisvercssesecxcisesses 13,14

Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct.

23999, Fi, Ok Oe CEI OOE siaslencsencseestentins 24

Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306

CFR FD osiesicnncsessercutconinecnteded amenenerdchgaplans 14

Morgan v. Arkansas Gazette, 897 F.2d 945 (8th Cir.

SDD nia ciciircuieiasovtnddonaticconnagpanipaiininenkamaaeaiael 19

ee

Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d

I 14

Nelson v. J.C. Penney Co., Inc., 75 F.3d 343 (8th Cir.

1996), petition for cert. filed, 64 U.S.L.W. 3795

(U.S. May 20, 1996) (No. 95-1878) oo... ccc eee 22,24

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.

1775, 104 L. Ed. 2d 268 (1989) oo. eee. 20

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (Ist Cir.

Pe iealitietbeacbtabdie le setilatovbesiatieitctiamiaibaabibiieens.sctamatniesin 13

Ryther v. KARE 11, 864 F. Supp. 1510(D. Minn. 1994),

affd, 84 F.3d 1074 (8th Cir. 1996)... cceeeeeee 15

Schibursky v. IBM, 820 F. Supp. 1169 (D. Minn.

as spp EAI GPL AE SOIREE RT 18,22

Schrand v. Federal Pacific Electric Company, 851 F.2d

tS Re ERIE A aay COR 23,24

Smith v. World Ins. Co., 38 F.3d 1456 (8th Cir.

ROPE hibisinashec Makatrnvarcussapicanictdseecan detain ticks cee 10

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.

Ct. 2742, 125 L. Ed. 2d 407 (1993)... 9,12,13,14

Sutera v. Schering Corp., 73 F.3d 13 (2nd Cir.

gg MEP RI ERIN Coe Ret tit DS Aa aeRO a OED 24

Thomure v. Phillips Furniture Co., 30 F.3d 1020 (8th

Cir. 1994), cert. denied, ___ U.S. __, 115 S. Ct.

PC kent ee ee ene he 17,18

Tolan v. Levi Strauss & Co., 867 F.2d 467 (8th Cir.

Eg SEEN eRER ERO R Ne ESC OL Net eee STE 19

United States v. Lyon, 567 F.24777 (8th Cir. 1977), cert.

denied, 435 U.S. 918 (1978) .0.....ccccccccscscseecseeseeeee 21

— Vvii—

United States v. Oliver, 908 F.2d 260 (8th Cir.

Nis icchtinccetins scctctiatzescsivesesasesigtadinnisiettenses eaueae 21

Wactor v. Spartan Transp. Corp., 27 F.3d 347 (8th Cir

ian ccchcsisathncsintticveriihocdineniilasiataigdciutcdgnmaiaisiie 22

Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir

POD) cscebeiierslnicsmesseincitieatdeacabihemsndabilinlaecntes’ 11,15

Wells v. New Cherokee Corp., 58 F.3d 233 (6th Cir

IS Saale rte fastlstidacivensiitinnsicitissinactainsibeeltaesvinies 24

STATUTES AND RULES:

a At eack MEIER T caccidanincseatsdinlepes tanapiciindiendn Adenine l

Age Discrimination in Employment Act, 29 U.S.C.

NUD jcinscassicsidshoniebacdacievcdatecatibaciassbgetsiahinciuaiprcianiial 1,11,17,18

Pes FUND scactncunhteachccvostiishiethoitishonccsnihoiusdaniuiibanme: 20

Pe I Ie aiisripecctiseciesakshscaitgeprirencsacioensted 23

PU nO a dats cn esissvarpvadonenconrsbvccunbbaroeadbanvaecesuies 21

PRE es PIPE caatiaciceitscnss chnielsdutideguebnsancksaisersc ventas 21

Rule 10 of the Supreme Court Rules...............::cccseceeees 9

— Vili —

OPINIONS BELOW

This case was tried before a jury on January 3, 4, 5, 6, 9 and

10, 1995. A jury verdict was thereafter entered for the Respon-

dent, Sathers Inc. The Petitioner’s motion for a new tria! was

denied on March 9, 1995. A copy of the opinion of the United

States District Court for the District of Minnesota denying the

motion is contained at pages 10 and 11 of Appendix A to

Petitioner’s brief. The Petitioner thereafter sought review of the

trial court’s order in the United States Court of Appeals for the

Eighth Circuit, but his petition for rehearing with a suggestion

for rehearing en banc was denied on Apri! 25, 1996. A copy of

the Opinion of the United States Court of Appeals for the Eighth

Circuit is contained at pages 1-9 of Appendix A to Petitioner’s

Brief.

STATEMENT OF JURISDICTION

Jurisdiction in this Court is proper pursuant to 28 U.S.C.

§1254(1). Petitioner seeks the review of a judgment entered by

the United States Court of Appeals for the Eighth Circuit on

March 15, 1996, and the Court’s denial of his petition for

rehearing with a suggestion for rehearing en banc on April 25,

1996.

STATUTORY PROVISIONS INVOLVED

Age Discrimination in Employment Act, 29 U.S.C. §623

(“ADEA”):

It shall be unlawful for an employer -- (1) to fail or

refuse to hire or to discharge any individual or other-

wise discriminate against any individual with respect

to his compensation, terms, conditions, or privileges

of employment, because of such individual’s age.

STATEMENT OF THE CASE

Sathers Inc. is a packager, manufacturer, and distributor of

candy. It is headquartered in Round Lake, Minnesota. Prior to

November 1991, Sathers had packaging and distribution centers

in Round Lake, Chattanooga, Tennessee, and Pittston, Pennsyl-

vania. Sathers also had a candy manufacturing plant in New

Orleans, Louisiana. (Tr. 276-77, 591-99). In a strategic move to

assure a ready supply of product for its packaging and distribu-

tion facilities, Sathers purchased the assets of one of its chief

suppliers of candy, Powell’s, Inc., located in Hopkins, Minne-

sota. The purchase was consummated in the latter part of

November 1991. (Tr. 305).

Upon completion of the sale of Powell’s, the management of

Sathers made some immediate changes in the Powell’s organi-

zational structure. First, Robert Fraser ceased participation in the

management of the business.’ George Fraser and Diane Carlson,

Robert Fraser’s two children, who were also shareholders in

Powell’s, were immediately terminated. (Tr. 20, 287). Sathers

also immediately began to restructure the remaining organiza-

tion to bring it more in line with the Sathers business structure.

(Tr. 549, 607-08). Ed Lindborg, previously President of Powell’s,

became the General Manager of Sathers’ Powell’s Division. (Tr.

408-09). Ed Pyrz, previously Vice President of Operations,

became Operations Manager for the Division. (Tr. 437, 444).

Petitioner had been listed by Powell’s as either Vice-President of

Manufacturing or Vice-President of Engineering. (Tr. 12, 66,

427). He was retitled as Plant Engineer. Since Jim Schuller of

Sathers was Vice President of Finance, Leslie K. Bruun, Powell’s

Chief Financial Officer, was relieved of most of his responsibili-

? In his brief, Petitioner relies heavily on the testimony of Robert Fraser

regarding Petitioner’s performance and worth to Powell's. Petitioner’s Brief,

p. 3. Petitioner’s performance at Powell’s and Powell’s need for his services,

however, are not relevant to the issues in this case.

ties. Mr. Bruun was retained to finish-up the financial documents

following the sale. Scott Stein, Powell’s Vice President of

Administration, became an Accountant. Stephen McMichael,

previously Vice President of Marketing, became Sales Manager

for the Division. (Tr. 550).

Other changes which immediately impacted the former

Powell’s executive staff were the elimination of company cars,

elimination of bonuses, and conversion of all employees from

Powell’s fringe benefits to those furnished by Sathers. (Tr. 283,

595-96).

After a period of study following this sale, Sathers determined

that Powell’ s should be restructured in order to bring it in line

with Sathers’ other operations, to pare duplicative functions, and

to eliminate positions which were no longer necessary. This was

possible because of the ability of the larger Sathers organization

to redistribute work throughout its other operations, thus effect-

ing savings. In fact, Ed Pyrz was asked to assist in the restructur-

ing by designing a new manufacturing organizational structure,

which he did. (Tr. 447-50, 615). As a result, Sathers began

eliminating certain positions in the executive and salaried ranks.

The first change occurred on January 17, 1992. Karen M.

Lipinski, an accounts payable clerk, voluntarily left to take

another job. Her position was not refilled. (Tr. 550-51). Next,

four people were notified on January 31, 1992, that they would

be terminated effective March 27, 1992. Those four were Leslie

Bruun, formerly Chief Financial Officer of Powell’s; Scott

Stein, formerly Vice-President of Administration of Powell’s;

Donald Slathar, Petitioner and formerly Vice-President of Manu-

facturing/Engineering of Powell’s; and Wendy Schriever, anon-

executive Computer Operator. (Tr. 439, 447, 550-52, 610-12).

None of these positions were replaced.

This did not end the reductions and consolidations, however.

Ed Lindborg, one of the four people who had a contract of

employment with Powell’s which was assumed by Sathers, was

ney, se

terminated in May 1992. (Tr. 409). His position was filled by Ed

Pyrz, the Operations Manager. Mr. Pyrz’s former position was

not filled. (Tr. 466, 617). Stephen McMichael, Powell’s Vice

President of Marketing, resigned effective May 15, 1992. (Tr.

439). That position was not replaced.

In summary, under the restructured organization, a complete

tier of executive level employees was eliminated. Sathers had,

after May 1992, a General Manager, Ed Pyrz. (Tr. 437). In the

Powell’s Division of Sathers, there was no Vice President of

Operations, no Vice-President of Manufacturing or Engineer-

ing, no Vice-President of Administration, no Chief Financial

Officer, and no Vice-President of Marketing. (Tr. 538, 618). To

characterize Petitioner’s termination as anything other than a

restructuring by a purchaser of a business to achieve efficiency

in operations is not warranted in this situation.

Donald Slathar was originally employed by Powell’s, inc. in

January 1977 as the Plant Engineer. (Tr. 5-6). At the time of the

sale, Petitioner was represented as being Vice-President of

Manufacturing and/or Vice-President of Engineering. (Tr. 12,66).

Throughout the discussions preceding the sale with upper man-

agement of Powell’s, Petitioner was represented as being an

extremely valuable person in the organization because of his

engineering skills in designing equipment for use by Powell’s in

the candy manufacturing operation. (Tr. 398-99, 401,

562,597,603).

During the due diligence process prior to the sale, representa-

tives of Sathers met with Petitioner and discussed his function in

the Powell’s organization. (Tr. 601-02). In particular, Charles

Mayer advised Petitioner of Sathers’ philosophy of not design-

ing and building its own equipment, but, rather, of purchasing

technology on the open market. (Tr. 482-84, 542-44). The

maintenance department at Powell’s had previously built equip-

ment in-house to meet its needs. (Tr. 482). Sathers did not plan

on continuing this function since it does not design or construct

Re ee

equipment. Sathers, therefore, did not need to retain anemployee

in that role. (Tr. 308-09, 612-13, 482-84, 551-52). This particu-

lar aspect of Sathers’ operation was discussed with Petitioner,

who advised both William Bradfield, Chief Operating Officer of

Sathers, and Charles Mayer, Vice-President of Operations of

Sathers, that his primary function was designing equipment and

that Sathers did not need someone in his position. (Tr. 482-84,

542-44, 601-02).

Petitioner attempts to make out a prima facie case of age

discrimination by comparing himself to Ricky Allan Vos, an

employee in his 30’s who was transferred into a newly created

position of Maintenance General Foreman. Mr. Vos was trans-

ferred from Round Lake, Minnesota to the newly purchased

Powell’s facility in Hopkins, Minnesota in February 1992. (Tr.

481). Mr. Vos had been employed by Sathers for nine years at the

time. When first hired by Sathers in 1982, he worked in the

capacity of mechanic on plant equipment. (Tr. 478-79). In 1987,

he was promoted to maintenance supervisor and transferred to a

candy manufacturing plant in New Orleans. (Tr. 478-79). In late

1989, he was promoted to general foreman of production at

Round Lake. (Tr. 479-81).

Upon transfer to the Hopkins facility Mr. Vos’ title became

“Maintenance General Foreman,” which carried a $35,000 an-

nual salary. (Tr. 484-85). At the time of trial, Mr. Vos was

compensated at $39,000 a year. Mr. Vos has a high school

education and has never attended college. (Tr. 477).

Mr. Vos’ duties at the Hopkins plant as maintenance general

foreman are repair and maintenance, generally “supervising the

boiler department, sanitation, building maintenance and also the

mechanics.” (Tr. 485). This is similar to many of his job duties

in New Orleans and Round Lake. (Tr. 479-80, 556). He has not

been engaged in designing or constructing equipment for the

plant. (Tr. 491-95).

Sathers did not discriminate against Petitioner because of his

age. The position held by Petitioner was an executive level

position. It was not an executive level position because he acted

as a “maintenance foreman”; it was an executive level position

because Petitioner was Powell’s design and engineering “guru”.

(Tr. 438-40, 442). That function was eliminated by Sathers.

Sathers never viewed Petitioner as a candidate for the mainte-

nance general foreman position. (Tr. 563-66, 616). Had it con-

sidered him, however, he would not have been selected. First, to

strip him of his executive status and bump him back to an entry

level management position would have caused difficulties, as

Sathers could not expect that a former Vice President would be

satisfied after such a demotion. (Tr. 616). Indeed, such a demo-

tion might have been called a “constructive discharge” by

Petitioner. Second, Mr. Vos was well qualified for the general

foreman position. He came up through the ranks of the Sathers

organization and was familiar with its philosophy and opera-

tions. Petitioner was not. Besides, Vos did not replace Petitioner.

Ed Pyrz actually assumed Petitioner’s executive-level supervi-

sory and decision making responsibilities over the maintenance

of the plant, not Vos. (Tr. 447, 614). The general foreman

position assumed by Vos was an entirely new, lower-echelon

level position.

Finally, one has to consider what the general foreman was

worth. Petitioner’s W-2 for 1991 was approximately $106,000,

including his bonus and other perquisites. (Tr. 17-18). The

maintenance general foreman job in the Sathers organization

paid $35,000 to start. It would not be realistic to ask an executive

employee to take a pay cut of nearly two-thirds his prior year’s

earnings. However, the pay differential was not the driving

factor behind the decision. (Tr. 562). The driving factor was that

the primary function of Petitioner’s position, which had made

him worth a Vice President’s salary when employed by Powell’s,

was Powell’s desire to employ a mechanical engineer to design

and build equipment. That function was not desired or retained

ren”

by Sathers. (Tr. 475). What was needed was a maintenance

general foreman to supervise the maintenance department. The

essence of Petitioner’s job was abolished.

Petitioner points out that Sathers also hired a younger Indus-

trial Engineer following his termination. David Thompson was

hired for this position. It is a staff position in which Mr.

Thompson works for Charles Mayer. (Tr. 528, 556-57). Mr.

Thompson has a Bachelor’s degree in industrial engineering,

seven years experience in industrial engineering in the Air Force,

and a Masters degree in business administration. (Tr. 524-27).

His position is titled Operations Engineer, and he works out of

Round Lake in all of the Company’s facilities. His duties do not

include designing equipment. (Tr. 466-67, 528-29, 556-57).

SUMMARY OF ARGUMENT

Petitioner’s appeal is directed at technical rulings by the trial

judge. He does not contend that the jury verdict is not supported

by the evidence. Sathers presented overwhelming evidence that

Petitioner’s job was eliminated and that he was not replaced in

that job.

The ultimate issue in the case is whether Sathers took adverse

employment action against Petitioner because of his age.

Petitioner’s theory throughout the entire case was that he was

discharged because of his high salary and experience and that

Sathers wanted someone who would work cheaper. That theory

was specifically rejected by this Court in Hazen Paper Co. v.

Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L. Ed. 2d 338 (1993).

The trial court correctly instructed the jury on the law regard-

ing intentional age discrimination being the ultimate issue.

Sathers was entitled to a business judgment instruction to temper

the inherent tendency of a jury to feel sympathy for a discharged

employee. The judge did not err in refusing Petitioner’s re-

quested instructions because the requested instructions were

adequately covered when he instructed on pretext and because

the requested instructions were contrary to Hazen Paper.

The testimony of Anita Darneli was properly rejected because

she was not in the decision-making loop and had no idea why

Slathar was terminated. All she knew was that he was over 40.

From this she concluded it had to be age discrimination.

Finally, this case is nothing more than a garden-variety age

discrimination case involving a reduction in force. There is no

conflict between the decisions rendered in this case and those

rendered by this Court or any other lower federal court. Simply,

no compelling reasons exist for this Court to review the case.

ARGUMENT

It should be noted from the outset that this garden-variety age

discrimination case does not present compelling reasons war-

ranting this Court’s review. Rule 10 of the Supreme Court Rules

provides that: ;

Review on a writ of certiorari is not a matter of right,

but of judicial discretion. A petition for writ of certio-

rari will be granted only for compelling reasons. The

following, although neither controlling nor fully mea-

suring the Court’s discretion, indicate the character of

the reasons the Court considers:

(a) a United States court of appeals has entered adecision

in conflict with the decision of another United States

court of appeals on the same important matter. . . .

(c) ...a United States court of appeals .. . has decided

an important federal question in a way that conflicts

with relevant decisions of this Court.

Neither of these situations exist. Rather, Petitioner is trying to

create compelling reasons for the Court’s review where none

otherwise exist.

In particular, Petitioner argues that the business judgment

instruction given by the trial court is somehow equivalent to

instructing the jury regarding the burden-shifting analysis under

McDonnell Douglas and that the instruction, therefore, contra-

dicts Hicks as well as other circuit court decisions holding that

the analysis set forth in McDonnell Douglas should be preserved

for pretrial motions only. As will be discussed more in depth

momentarily, no such conflict exists. The trial court clearly

instructed as Hicks requires, i.e., that the ultimate issue is

whether Sathers intentionally discriminated against Petitioner

because of his age.

cites

Petitioner also argues that a conflict exists between the lower

courts’ rulings that Anita Darnell’s testimony was properly

excluded and decisions from other circuit courts on this issue. As

will also be discussed momentarily, no such conflicts exist. All

of the cases cited by Petitioner deal with decision-makers and the

admissibility of statements made by them. Anita Darnell, how-

ever, was not a decision-maker and was not involved in the

decision-making process.

Because no conflicts exist and because Petitioner should not

be able to create a conflict through some contrived and distorted

interpretation of the lower courts’ rulings, no compelling rea-

sons exist warranting review by this Court.

I. THE U.S. DISTRICT COURT FAIRLY AND

ADEQUATELY INSTRUCTED THE JURY AS

TO THE SUBSTANTIVE LAW UNDER THE

ADEA.

A. Standard of Review’

In reviewing the district court’s instructions to the jury, it is

well settled that this Court must determine “whether the instruc-

tions, taken as a whole and viewed in light of the evidence and

applicable law, fairly and adequately submitted the issues in the

case to the jury.” Kansas City Power & Light v. Ford Motor

Credit Co., 995 F.2d 1422, 1430 (8th Cir. 1993). See also Smith

v. World Ins. Co., 38 F.3d 1456, 1464 (8th Cir. 1994). It is also

well settled that the district court has “broad discretion to instruct

the jury in the form and language it considers a fair and adequate

presentation of substantive law ..... [I]t need not give the precise

instruction contained in the state’s approved instructions or use

the language suggested by either party.” Id. at 1429-30. If this

* It should be noted from the outset that Petitioner does not argue that the

jury’s verdict is not sufficiently supported by the evidence. Beith v. Nitrogen

Products, Inc., 7 F.3d 701, 703 (8th Cir. 1993).

st

Court concludes “that the district court erred in failing to give an

instruction, [it] must [then] determine whether the error was

prejudicial.“ Walker v. AT & T Technologies, 995 F.2d 846, 849

(8th Cir. 1993).

Petitioner argues that the trial court did not fairly and ad-

equately instruct the jury concerning several issues because the

court did not adopt the language he proposed. In particular,

Petitioner takes issue with the following instruction, arguing

that, despite a recent ruling from the Eighth Circuit to the

contrary, it is reversible error for the trial court to give a

cautionary instruction regarding an employer’s right to make

legitimate business decisions:

The progression of age is a universal process. Thus, it

is apparent that in the usual case, older workers are

constantly moving out of the labor market while

younger woikers come in. Thus, there is not an auto-

matic presumption of discrimination where a younger

worker replaces an older worker.

The ADEA requires that an employer reach employ-

ment decisions without regard to age, but does not

place an affirmative duty upon an employer to accord

special treatment to members of the protected age

group. When an employer’s decision is wholly moti-

vated by factors other than age, there is no discrimina-

tion. This is true even if the factor motivating the

decision to terminate is typically correlated with age;

such as pension status, salary or seniority. Thus, the

ADEA does not make it illegal to terminate an em-

ployee simply because he is paid a high salary.

An employer is not required to reassign employees

whose jobs are eliminated or to put employees into

lower echelon, poorer paying jobs with substantial

reductions in responsibilities and salaries. The issue is

pap |) teen

RO RENO Fa RET SOE LT REE

ultimately whether the age was the determining factor

in the decision to discharge the employee.

You are instructed that the focus of your consideration

must be on the Defendants’ motivation, and not on

your own consideration of Sathers Inc.’s business

judgment regarding the organizational changes it made.

The issue is whether or not Sathers Inc. discriminated

against Mr. Slathar because of his age.

To summarize, in order to answer Question | of the

Special Verdict “YES,” it is Mr. Slathar’s burden to

prove to your satisfaction by a greater weight of the

evidence that Sathers Inc. discriminated against him

because of his age; that is, that his age was a determin-

ing factor in Sathers Inc. ‘s decision to terminate him.

Petitioner’s Appendix A-13. Petitioner argues that the above

instruction does not adequately represent the state of the law

following this Court’s decisions in St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)

and Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701,

123 L. Ed. 2d 338 (1993). As will be pointed out below, the trial

court properly stated the law without prejudicing Petitioner in

any way, and the Eighth Circuit properly upheld the trial court’s

ruling. Moreover, these decisions in no way conflict with any

decision from this Court or any other circuit court.

B. The Business Judgment Instruction

Petitioner argues that the giving of the above instruction was

prejudicial error requiring anew trial. The heart of his contention

is the 1993 U.S. Supreme Court decision of St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed.

2d 407 (1993), which, despite all of the inventive inferences

derived from that decision by Petitioner, essentially holds only

that the plaintiff always bears the burden of proving intentional

discrimination, and not simply that the employer’s proffered

ass: 29 we

reason is disbelieved. Petitioner attempts to use Hicks, however,

to somehow argue that the business judgment instruction given

by the trial court equates to the burden-shifting model estab-

lished by this Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Petitioner’ s

brief, p. 14. Based on this contrived interpretation, Petitioner

then argues that the instruction contravenes Hicks, as well as

cases from other circuits, including Gehring v. Case Corp., 43

F.3d 340, 343 (7th Cir. 1994), cert. denied, __U.S.__, 115S.

Ct. 2612 (1995), a case in which the Seventh Circuit refused to

“walk the jury through the paradigm established by [McDonnell

Douglas].” Rather, the Gehring court stated that the McDonnell

Douglas “burden-shifting model applies to pretrial proceedings,

not to the jury’s evaluation of evidence at trial.” Jd. In so doing,

the trial court in Gehring simply refused the plaintiff's request

for this specific instruction, opting instead to focus on the

ultimate issue of intentional discrimination.

It should also be noted that, with one exception, neither the

Gehring case nor any of the other cases cited by Petitioner in

support of his argument hold that it is reversible error to give a

jury instruction embodying the McDonnell Douglas burden-

shifting analysis.* Instead, these cases more aptly stand for the

proposition that the jury instructions as a whole should be

viewed in an effort to determine whether the jury was adequately

instructed on the ultimate issue of whether the defendant dis-

criminated against the plaintiff because of the plaintiff’s pro-

tected status. This is exactly what the court in this case did. See

Cabrera v. Jakabovitz, 24 F.3d 372 (2nd Cir.) (while McDonnell

Douglas instruction can be confusing and need not be given, it

* While the court in Loeb v. Textron, 600 F.2d 1003 (Ist Cir. 1980) stated

that the burden-shifting analysis outlined in McDonnell Douglas should not

be read to the jury, the First Circuit has not only revisited the issue but has

apparently changed its mind, embracing such an instruction in Rowlett v.

Anheuser-Busch, Inc., 832 F.2d 194, 200 (Ist Cir. 1987).

ee

was not reversible error to give such an instruction), cert. denied,

___U.S.__, 115 S. Ct. 205 (1994); Messina v. Kroblin Transp.

Sys., Inc., 903 F.2d 1306 (10th Cir. 1990) (giving of McDonnell

Douglas charge did not warrant reversal because charge directed

jury to consider the ultimate issue of intentional discrimination);

Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130 (4th

Cir. 1988) (while McDonnell Douglas does not need to be read

to jury, the charge did not warrant reversal); Cassino v. Reichhold

Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987) (trial court did not

err by failing to give instruction regarding pretext, even though

instruction regarding prima facie case under McDonnell Dou-

glas was given to jury), cert. denied, 484 U.S. 1047 (1988);

Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984) (McDonnell

Douglas analysis used in bench trial), cert. denied, 474 U.S. 817

(1985); Blackwell v. Sun Elec. Corp., 696 F.2d 1176 (6th Cir.

1983) (not reversible error where trial court failed to give

McDonnell Douglas instruction).

Even if there was a split among the circuits as to whether or not

the burden-shifting analysis outlined in McDonnell Douglas

should be read to the jury, any such split would be of no

consequence in this case. The business judgment instruction

given to the jury in this case in no way embodies the burden-

shifting analysis established in McDonnell Douglas. Rather, the

instruction simply asked the jury to focus “‘on the Defendants’

motivation, and not on [its] own consideration of Sathers Inc.’s

business judgment regarding the organizational changes it made.

The issue is whether or not Sathers Inc. discriminated against

Mr. Slathar because of his age.” Petitioner’s Appendix A-13

(emphasis added). This instruction clearly follows the law as

established by this Court in Hicks. Besides, Hicks did not address

either jury instructions or business necessity. What it did was

discuss the plaintiff’s burden of proof, which explicitly includes

both an evaluation of the believability of the employer’s articu-

lated reasons and the ultimate issue of intentional ciscrimina-

tion.

poe eee

Since a jury is necessarily to be instructed on considering

whether the employer’s reasons are worthy of credence and

whether such reasons evidence intentional discrimination, the

jury should likewise be instructed that the law mandates that they

do not substitute their judgment for the business judgment of the

employer. See Kansas City Power & Light Co., 995 F.2d at 1431

(reading instructions as a whole, an instruction “properly limited

the bases for the jury’s decision, which is the essential function

of jury instructions. “). This is the heart of the instruction which

Petitioner attacks.

Furthermore, Petitioner’s view that only “substantive issues”

be included in jury instructions is without foundation in law or

fact. Petitioner argues that the Eighth Circuit was only partially

correct in Walkerv. AT & T Technologies, Inc., 995 F.2d 846 (8th

Cir. 1993),° because, while business necessity may be substan-

tive law, it is a question for the court to decide. However, it is the

jury which decides the truth or falsity of the empleyer’s reasons

and whether they are a pretext, and the jury shoulc be guided by

the appropriate legal standard in this task. The tri ul court in this

case did not have the task of assessing the believability or

persuasiveness of Sathers’ reasons: the jury did. An instruction

that the jury is not to replace its own judgment with the employer’ s

speaks directly with how the jury is to deal with issues of intent

in this context. See Houghton v. Sipco, Inc., 38 F.34953 (8th Cir.

1994) (decided after Hicks but recognizing the employer’s right

to a business judgment instruction); Ryther v. KARE 11, 864 F.

Supp. 1510(D. Minn. 1994) (same), aff'd, 84 F.3d 1074 (8th Cir.

1996). Accord Holley y. Sanyo Mfg., Inc., 771 F.2d 1161, 1166

n.8 (8th Cir. 1985) (recognizing principle that the “ADEA is not

intended to be used as a means of reviewing the propriety of a

* Walker held that it was prejudicial error requiring a reversal to fail to

instruct the jury “on the substantive rule that [the employer] was entitled to

exercise its business judgment in making [employment decisions].” 995 F.2d

at 850.

Sis ME

business decision on the part of the employer.“); Jorgensen v.

Modern Woodmen of America, 761 F.2d 502,505 (8th Cir. 1985)

(same).

The standard of business judgment set forth by the trial court

was the appropriate legal standard. The trial court had wide

discretion to instruct the jury on the subjects it felt appropriate.

As the legal standard was correct, there was no error in giving

this instruction. If there was error, however, it was harmless, as

the jury was adequately instructed on intent and pretext.

C. The Jury Instruction Regarding the Consid-

eration of Salary is an Employer’s Decision

Petitioner also asserts that the “‘court’s instructions, confused

a reasonable jury into thinking that an employer’s decision,

viewed through common items of circumstantial evidence, such

as, age, Salary, experience, seniority, or pension status, is not

evidence of an illegal motivation,” and that the “trial court

misapplied Hazen Paper... .” Petitioner’s Brief, p. 16.°

However, there is no means of legitimately interpreting the trial

court’s instruction as doing anything other than noting that

certain factors are typically correlated with age. The court

properly informed the jury on the substantive law: “When an

employer’s decision is wholly motivated by factors other than

age, there is no discrimination. This is true even if the factor

motivating the decision is typically correlated with age; such as

pension status, salary or seniority.” (R. 79, p. 11) (emphasis

added); Hazen Paper Co., 113 S. Ct. 1701.

* It should be noted that, while Petitioner argued at trial that he was

terminated because of his high salary, Sathers has never made such an

argument. Petitioner's position was eliminated. The elimination had nothing

to do with Petitioner's salary. Rather, Petitioner’s main job function (desiga-

ing and constructing equipment) was a function Sathers simply did not utilize

in its operations. Thus, Petitioner's interjection of this argument as an issue

to be reviewed by this Court is nothing more than an attempt to seek review

of the jury's findings of fact — something which does not compel review.

oo

The court did not instruct the jury that such factors were not

wrongful (or “illicit’’), or that they could not be considered as

evidence of age discrimination. The court informed the jury, in

line with Hazen Paper Co., that it is not a violation of the ADEA

to terminate an employee “simply because he is paid a high

salary.” Taken as a whole, the instruction correctly informed the

jury that a decision wholly motivated by a correlative factor is

not violative of the ADEA.

In Thomure v. Phillips Furniture Co., 30 F.3d 1020 (8th Cir.

1994), cert. denied, ___ U.S.__, 115 S. Ct. 1255 (1995), the

plaintiff alleged that his wage cut was the result of impermissible

age discrimination. The employer was faced with severe finan-

cial difficulties which necessitated cut backs. Those making the

most money received higher percentage reductions. The plaintiff

argued that he was a more expensive employee because of his

age and that, due to this correlation, the employer’s actions were

unlawful. The Eighth Circuit disagreed, noting that the plaintiff’ s

“high hourly wage was a function of his job, which required

more skill than other warehouse positions, and of his long tenure

at [the defendant’s]. He was not, as he claims, a more expensive

employee by reason of his age. “ Thomure, 30 F. 3d at 1024.

Quoting this Court in Hazen Paper Co., 113 S. Ct. at 1707, the

court in Thomure went on to note that:

On average, an older employee has had more years in

the work force than a younger employee, and thus may

well have accumulated more years of service with a

particular employer. Yet an employee’s age is analyti-

cally distinct from his years of service, . . . and by the

same token also is distinct from his wage rate. Thus

[the defendant] could take account of one [salary]

while ignoring the other [ age], ... even though there

happened to be a correlation between the two in

several cases.

oe ee

Id. See also Beith v. Nitrogen Products, Inc., 7 F.3d 701, 703 (8th

Cir. 1993) (ADEA not meant to prohibit decisions based on

factors that sometimes accompany advancing age; simply “be-

cause back conditions may be more prevalent in older workers

does not alone make the decision an age-based decision.”’); Allen

v. Diebold, Inc., 33 F.3d 674 (6th Cir. 1994) (same); Holley v.

Sanyo Mfg., Inc., 771 F.2d 1161, 1166-7 (8th Cir. 1985) (reject-

ing argument that heart condition correlated with age and that

termination because of heart condition equates to age discrimi-

nation).

Just as high salary can be taken into account while ignoring

age, experience is alsoconceptually distinct from age. Petitioner’s

argument in this case presumes that a decision based on experi-

ence is necessarily age-based. This argument was flatly rejected

in Schibursky v. IBM, 820 F. Supp. 1169, 1177 (D. Minn. 1993),

where the court held, despite the above argument, that:

The firing of an employee to save salary costs result-

ing from seniority ... does not violate the ADEA. Even

if older employees of IBM are more likely to have

more years of service than younger employees, IBM’s

alleged decision to fire [the Petitioner] because of her

years of service is not discriminatory treatment on the

basis of age.

(Citing Hazen Paper Co., 113 S. Ct. at 1705-07).

That the court did not affirmatively instruct that salary could

be evidence of age discrimination is not the standard on review

of jury instructions. No party is entitled to specific or special

language. See Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.

1994), cert. denied, _ U.S. ___, 115 S§. Ct. 2612 (1995). The

district court accurately stated the law under Hazen Paper Co.

Furthermore, the court explained early in the jury instructions

what constituted evidence. (R. 79, p. 3.) It does not thereafter

have to affirmatively inform the jury of each piece of evidence

brought forth at trial which it may consider.

aoa, ee

II. THE U.S. DISTRICT COURT DID NOT ABUSE

ITS DISCRETION BY EXCLUDING FROM

EVIDENCE THE STRAY REMARKS OF A

NON-DECISION MAKER CONCERNING HER

OPINION REGARDING THE MOTIVATION

BEHIND PETITIONER’S TERMINATION

SINCE THE WITNESS WAS NEITHER CON-

SULTED ABOUT NOR PARTICIPATEDIN THE

DECISION.

A. Standard of Review

The admission of evidence is a matter for the district court’s

discretion and should be deferred to by this Court absent an abuse

of discretion. Morgan v. Arkansas Gazette, 897 F.2d 945, 962

(8th Cir. 1990). See also Tolan v. Levi Strauss & Co., 867 F.2d

467 (8th Cir. 1989) In this instance, the trial court did not abuse

its discretion in excluding stray remarks and opinion testimony

of a non-decision maker.

B. Anita Darnell’s Testimony was Properly Ex-

cluded

At trial, Petitioner sought to introduce the testimony of Anita

Darnell, Powell’s former Human Resources Manager, that once

she heard Petitioner was to be laid off she became concerned due

to the fact that Petitioner was in the protected age group.’ She

” Petitioner implies that Ms. Darnell would have testified that “the

representation that Mr. Donald Slathar’s position as eliminated was highly

questionable, since the services he performed were needed within the plant.”

Petitioner’s Brief, p. 5. Such implication by Petitioner is extremely mislead-

ing, especially since it is not supported by the record. See Respondent's

Appendix 2-4. Ms. Darnell never opined regarding the alleged need for

Petitioner’s services. Rather, Ms. Darnell only stated what every good

personnel manager knows — if you have someone in a protected class who

gets terminated, he or she may bring a charge of discrimination against you,

even if there are no facts to support such charge.

a

admittedly, however, did not have any involvement in the

decision to terminate Petitioner, and, at the time she became

concerned, there was no indication of who would be performing

certain of Petitioner’s former duties. In fact, Ms. Darnell did not

find out about Petitioner’s termination until after the decision

was made and after Petitioner was notified of the decision. (Tr.

224-33).

Perhaps the most basic of requirements of admissibility is that

evidence be relevant. “Relevant evidence” is defined in

Fed.R.Evid. 401 as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable than it would be without the

evidence.” Fed.R.Evid. 401. In Beshears v. Asbill, 930 F.2d

1348 (8th Cir. 1991), the Eighth Circuit delineated the type of

evidence of alleged discriminatory animus which will support an

inference that an illegitimate basis was a motivating factor in the

employment decision at issue. In particular, the court distin-

guished “[c]omments which demonstrate a discriminatory ani-

mus in the decisional process or those uttered by individuals

closely involved inemployment decisions,” from “stray remarks

in the workplace, statements by nondecision-makers, or state-

ments by decision-makers unrelated to the decisional process.”

Id. at 1354 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228,

277-8, 109 S. Ct. 1775, 1804-05, 104 L. Ed. 2d 268 (1989)).

While evidence of the former type of remark might be sufficient

to support an inference that an illegitimate motive was a motivat-

ing factor in the employment decision, the latter was rejected as

insufficient. Id. See also Bashara v. Black Hills Corp., 26 F.3d

820, 824 (8th Cir. 1994) (statement by non-decision maker

similar to Ms. Darnell’s proffered testimony deemed “the func-

tional equivalent of a stray remark that we have said does not

constitute evidence of discriminatory animus”); Hermeling v.

Montgomery Ward & Co., 851 F. Supp. 1369 (D. Minn. 1994)

(actions and comments by non-decision makers cannot provide

a basis for a discrimination charge).

I cc

Another significant hurdle which evidence must surpass in

order to be admissible is the requirement that:

A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that the

witness has personal knowledge of the matter... .

Fed.R.Evid. 602. This rule “prohibits the admission of testimony

concerning matters the witness did not observe or had no

opportunity to observe.” United States v. Oliver, 908 F.2d 260,

263 (8th Cir. 1990) (quoting United States v. Lyon, 567 F.2d777,

783-84 (8th Cir. 1977), cert. denied, 435 U.S. 918 (1978)). Ms.

Darnell’s rejected testimony did nothing more than attempt to

create evidence of discriminatory intent by offering conclusions

concerning the motivations of the decision-makers without the

benefit of personal knowledge and observation. It was, there-

fore, properly excluded under Rule 602.

Ms. Darnell’ s rejected testimony is also governed by the

following dual requirements:

If the witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.

Fed.R.Evid. 701. On this issue, the Eighth Circuit adopted the

Seventh Circuit’s reasoning that:

[I]n order to conclude that [lay opinion] testimony is

admissible, the court must find that the witness’ testi-

mony is based upon his or her personal observation

and recollection of concrete facts ..., and that those

facts cannot be described in sufficient detail to ad-

equately convey to the jury the substance of the

testimony.

Sigs aa

Wactor v. Spartan Transp. Corp., 27 F.3d 347, 350 (8th Cir.

1994) (citing Krueger v. State Farm Mut. Auto. Ins. Co., 707

F.2d 312, 317 (8th Cir. 1983)). The opinion of Ms. Darnell is

based solely upon her personal assessment of the circumstances

surrounding Petitioner’ s termination and the sole fact that

Petitioner was within the protected age group when he was

terminated. Significantly, she had no involvement in the deci-

sion-making process which resulted in Petitioner’s termination,

and she does not claim to have been told by any of the decision-

makers that Petitioner was terminated due to his age. Moreover,

her opinion is in no way helpful to the determination of any fact

in issue, particularly the ultimate issue of the existence of

intentional discrimination, given the fact that it is based on the

same circumstantial evidence that was presented to the jury and

upon which that body formed its own collective conclusion.

Ultimately, her testimony is nothing more than mere specula-

tion, not unlike that which failed to constitute competent evi-

dence in Schibursky v. IBM, 820 F. Supp. 1169, 1178 (D. Minn.

1993); see also Crimm v. Missouri-Pacific RR Co., 750 F.2d 703,

710 (8th Cir. 1984) (court properly refused to permit

superintendent’s witness to testify that he believed

superintendent’s age was factor in his termination where witness

was not a decision-maker); Nelson v. J. C. Penney Co., Inc., 75

F.3d 343, 346 (8th Cir. 1996) (fact that manager knew plaintiff’ s

age could not “furnish the basis for a reasonable inference that

his age was a basis for his termination), petition for cert. ff'led,

64 U.S.L.W. 3795 (U.S. May 20, 1996) (No. 95-1878). A fact

finder may not simply convert a condition that is necessary for

a finding of liability (here, knowledge of a plaintiff's age) into

one that is sufficient for such a finding.

Even if the deposition evidence described above is determined

to be relevant to the determination of this action, all of it —

may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confu-

=, po

sion of the issues, or misleading the jury, or by consid-

erations of undue delay, waste of time, or needless

presentation of cumulative evidence.

Fed.R.Evid. 403. The Notes of the Advisory Committee elabo-

rate that “‘[u]nfair prejudice’ within its context means an undue

tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.”

In Schrand v. Federal Pacific Electric Company, 851 F.2d

152 (6th Cir. 1988), the Sixth Circuit applied this rule in an age

discrimination case to exclude evidence of alleged discrimina-

tion involving other employees. Specifically, the court ex-

plained:

With no other direct evidence of age discrimination in

the case, the impact of the two former employees’

testimony would be great. Thus, even if that evidence

was relevant, we believe its probative value was

substantially outweighed by the danger of unfair preju-

dice flowing from its admission. Although it had no

bearing on the issue to be decided — whether Schrand

was discharged because of his age— this testimony

embellished the circumstantial evidence directed to

that issue by adding “smoking gun” type evidence. It

offered an emotional element that was otherwise lack-

ing as a basis for a verdict in Schrand’s favor. See

Notes of Advisory Committee to Rule 403.

In addition to creating prejudice which substantially

outweighed its probative value, the testimony tended

to confuse the issue by focusing the [factfinder’s]

attention on two totally unrelated events, a consider-

ation under Rule 403. If the [factfinder] was con-

vinced that the testimony of Owens and Dolan was

truthful, there was a distinct danger that [it] would

assume a connection which was never proven between

the termination of the two witnesses and that of Schrand.

— 23 —

Schrand, 851 F.2d at 156. See also Haskell v. Kaman Corp., 743

F.2d 113 (7th Cir. 1984); Kier v. Commercial Union Ins. Co., 808

F.2d 1254 (7th Cir. 1987), cert. denied, 481 U.S. 1029 (1987);

Mauter v. Hardy Corp., 825 F.2d 1554 (11th Cir. 1987). The

above case law supports the trial court’s exclusion of Anita

Darnell’s testimony. The court, therefore, did not abuse its

discretion in refusing to admit the stray remarks and unsupported

opinion testimony.

Petitioner argues that the trial court’s exclusion of Anita

Darnell’s testimony conflicts with decisions from other circuits.

In particular, Petitioner points to decisions from the Second,

Third, Sixth and Eighth Circuits.’ A review of these decisions,

however, shows that Petitioner’s assertion is, once again, incor-

rect. Inevery decision cited by Petitioner, the evidence necessary

to prove age discrimination consisted of, at least in part, dis-

criminatory statements. by individuals involved in the decision-

making process. Sutera v. Schering Corp., 73 F.3d 13, 16 (2nd

Cir. 1995) (plaintiff submitted evidence that, among other things,

his supervisor “made harassing and demeaning references to his

age.”); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,

333 (3rd Cir. 1995) (evidence of remarks by Chief Executive

Officer of company constituted circumstantial evidence of dis-

crimination); Wells v. New Cherokee Corp., 58 F.3d 233, 238

(6th Cir. 1995) (consideration given to statement of supervisor

“meaningfully involved in the decision to terminate an em-

ployee.”) Accord Nelson v. J.C. Penney Co., Inc., 75 F.3d 343,

345 (8th Cir. 1996) (recognizing that “statements by persons

involved in the decision making process . . . may be viewed as

directly reflecting [discrimination].”) Anita Darnell, however,

* Petitioner also argues that the exclusion of Ms. Darnell’s testimony

conflicts with Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399,

91 L. Ed. 2d 49 (1986). Meritor, however, did not address the issue at hand.

Rather, it dealt with the issue of an employer’s liability in sexual harassment

cases.

pil

never participated in the decision to terminate Petitioner. In fact,

she was not informed until after the decision was made. Thus,

there is no conflict between the decision in this case and the

decisions of other courts.

CONCLUSION

For the foregoing reasons, this Petition for Writ of Certiorari

should be DENIED.

Respectfully submitted,

MILLER & MARTIN

William G. Trumpeter*

Karen M. Smith

Suite 1000, Volunteer Building

832 Georgia Avenue

Chattanooga, Tennessee 37402-2289

(423) 756-6600

Attorneys for Respondent

*Counsel of Record

sina MR asec.

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

File No: 3-93 Civil 256

Donald A. Slather,

Plaintiff,

vs.

Sather Trucking Corporation,

an Iowa corporation;

Sather’s Inc., a Delaware corporation,

Defendants.

The Deposition of ANITA DARNELL, taken pursuant to

Notice of Taking Deposition, taken before Kerri L Brodock, a

Notary Public in and for the County of Hennepin, State of

Minnesota, taken on the 14th day of April, 1994, at 2000

Metronolitan Centre, 333 South Seventh Street, Minneapolis,

Minnesota, commencing at approximately 1:00 p.m.

KIRBY A. KENNEDY & ASSOCIATES

(612) 922-1955

I think so.

A

Q. How many mechanics did Powell’s employ?

A. I'd say approximately 10 to 15 perhaps.

Q. Was it a three shift operation?

A. Production was two shift [sic] but the plant was three

shifts

Q. Okay. Were they three eight-hour sh‘fts or how were they

structured?

A. They were 10-hour shifts with sanitation or the third shift

working odd hours.

Q. What position did Bob Fraser hold with Powell’s when

you were there?

A. I believe Bob was the chairman.

Q. Was he at the plant every day?

A. Pretty much.

Q. Did you have any participation in the decision to termi-

nate Mr. Slather?

A. No, sir.

Q. Were you consulted in any fashion by managers of

Sather’s? *

A. Prior to the decision being made, no.

Q. Were youconsulted about it after the decision was made?

eaigy em. pn

A. Can you rephrase that?

Q. Well, I asked if you were consulted by [9] management

of Sather’s about their decision and you said prior to the decision

being made, no, so the follow-up is how about after the decision?

A. I had a conversation with Doug Pengraft about the

decision.

Q. When did that take place, do you remember?

A. It was after the decision had been made, but I don’t recall

exactly when it was.

Q. Was Mr. Slather still at the plant?

A. Yes.

Q. And Mr. Pengraft is Sather’s director of human resources

basically?

A. I believe that’s his title, yes.

Q. Where did this — was it a personal, face-to-face confer-

A. It was a phone call.

Q. Phone call?

A. Uh-huh.

Q. Did you call him or did he call you?

A. I think I called him.

Q. What was the purpose of the phone call?

A. Iwas concerned about that decision.

Q

And what was your concern?

ise

A. I felt that because Don was ina protected class both based

on his age and his perhaps disability, I [10] thought that was a

pretty risky decision to be made.

Q. And what was Mr. Pengraft’s response?

A. He said I shouldn’t be worried about it, that Sather’s

would take care of it. ,

Q. What disability did Mr. Slather have?

A. Ibelieve he’s hearing impaired.

Q. Did you hear anybody in Sather’s management ever

reference Mr. Slather’s age?

A. Other than in my conversation with Pengraft, I don’t

think I talked to anybody about Mr. Slather from Sather’s.

Q. What I’m getting at, did you hear anybody in Sather’s

say, “We're going to fire him because he’s too old?”

A. No.

Q. Because he’s hearing impaired?

A. No.

Q. Did you ever prepare any written reports concerning

your concerns about the termination of Mr. Slather?

A. Idon’t recall if I did or not.

Q. Did youever speak to Mr. Bradfield about your concerns

about Mr. Slather’s termination?

A. No.

Q. Did you discuss any concerns about the

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[12]

Q. Do your recall how soon after Mr. Slather was told that

he would be discharged that you called Mr. Pengraft?

A. I believe it was as soon as I found out.

Q. Do you remember how Mr. Slather was notified of his

pending discharge or impending discharge?

A. I believe he was told by Ed Lindborg.

Q. Doyou remember him getting a letter telling him that he

would be discharged?

A. No.

Q. To the best of your recollection, it would be shortly after

that that you called Mr. Pengraft?

A. I believe that’s true.

Q. To the best you can recall, tell me exactly what you told

Mr. Pengraft?

A. As I said earlier, when I heard that Don was going to be

terminated, I was very concerned based on him being in what I

felt were two protected classes, both by age and by disability, and

I wanted to make sure that that had been taken into consideration

when that decision was made.

Q. And how long have you been in the human resources

personnel function?

A. Probably somewhere in the neighborhood of 18 or 19

years.

Q. And I assume that it was because of your

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