27 F.3d 1089 (5th Cir. 1994), 93-1069, E.E.O.C. v. Manville Sales Corp.

Docket Nº:93-1069.
Citation:27 F.3d 1089
Party Name:Evid. Serv. 1467 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MANVILLE SALES CORPORATION, et al., Defendants-Appellees. Charles MITTE, Plaintiff-Appellant, v. MANVILLE SALES CORPORATION, Defendant-Appellee.
Case Date:August 04, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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27 F.3d 1089 (5th Cir. 1994)

Evid. Serv. 1467



MANVILLE SALES CORPORATION, et al., Defendants-Appellees.

Charles MITTE, Plaintiff-Appellant,



No. 93-1069.

United States Court of Appeals, Fifth Circuit

August 4, 1994

        Rehearing and Suggestion for

        Rehearing En Banc Denied

        Sept. 6, 1994.

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[Copyrighted Material Omitted]

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        Gary DeShazo, Austin, TX, for Mitte.

        Paul Bogas, Dori Bernstein, E.E.O.C., Washington, DC, for E.E.O.C.

        Brian S. Greig, Elizabeth Collum Oxmun, Fulbright & Jaworski, Austin, TX, Alfred John Harper, II, Fulbright & Jaworski, Houston, TX, W. Wendell Hall, San Antonio, TX, for appellees.

        Appeal from the United States District Court for the Northern District of Texas.

        Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

        GOLDBERG, Circuit Judge:

        Charles Mitte and the Equal Employment Opportunity Commission ("EEOC") brought the instant lawsuit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-34. The plaintiffs alleged that Mitte had been discriminatorily discharged by his employer, Manville Sales Corporation ("Manville"), in violation of the ADEA. After a jury trial, the district court entered judgment in favor of Manville. The plaintiffs appeal. They contend that during the trial, the district court improperly excluded, inter alia, evidence of age-related remarks uttered by the employer. The plaintiffs also argue that the jury charge was erroneous in several respects. Our review convinces us that the plaintiff's primary contentions are essentially correct, that the judgment of the district court must be reversed, and, that this case must be remanded for further proceedings in the trial court.

       I. Background

        Mitte began his career with Manville in 1962. He worked as a sales representative selling fiberglass insulation products. In the early 1980's, Manville encountered intense financial difficulties related to increased competition in the insulation industry and massive tort liabilities incurred by the company. As a result, Manville embarked on a series of cost-cutting measures. These measures included the discharge of a significant number of sales representatives.

        In 1982, Lonnie Morris became District Manager of the district that included Mitte's territory. Morris administered the restructuring of that district with the aim of enhancing productivity and reducing costs. The district included two other territories in addition to Mitte's, each of which was served by a separate sales representative. Morris recommended to Robert Bruntrager, the General Sales Manager for the entire Fiberglass sales group, that Manville eliminate one of the sales representatives in this district and divide his responsibilities between the two remaining representatives. Morris also suggested that Bruntrager select Mitte as the employee who, as a result, would be terminated. Morris mentioned Mitte's age at the time, 55 years, and contrasted him with Lorin Lichten, age 32, whom Morris described as a "young aggressive sales rep".

        In January of 1986, Bruntrager, having made little follow up investigation into Morris' recommendations, discharged Mitte and reapportioned his sales territory between Lichten

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and the other sales representative in the district, Charles Hinton, age 41.

        Five months after his termination, Mitte began working with another insulation distributor. Shortly thereafter, in August of 1986, Mitte moved to New Jersey for a short stint with an insurance company. While in New Jersey, Manville offered Mitte the opportunity to interview for a sales representative position which had become available in Chicago. Mitte refused this offer. In February of 1988, he returned to Texas where he began working for a clothing store. In May of 1991, Mitte interviewed for a sales position with Manville in San Antonio. Although he did not receive a job after this interview, in December of 1992, Manville rehired him for a position in Dallas.

        On March 15, 1988, after his original discharge by Manville, Mitte filed the instant age discrimination suit. The EEOC filed a separate action against Manville in December of the same year. The two cases were subsequently consolidated. In their suit, the plaintiffs charged that in the years leading up to Mitte's termination, he outsold the two younger sales representatives retained by Manville and that he was terminated because of his age. 1 Manville responded that its financial problems necessitated a reduction in the sales force and that it selected Mitte because he was the least effective sales representative in the area. In particular, Manville contended that Mitte had problems getting along with certain customers, that he could not handle large volume accounts, that his expenses were too high, and that he was too inflexible to grasp the opportunities that had become available in the field.

        During the trial, the judge granted the defendant's motion in limine and excluded any testimony regarding age-related remarks made by Morris over the four years that he was Mitte's District Manager. The court also granted the defendant's request to exclude a letter of violation issued by the EEOC after an investigation of Mitte's claim. Mitte and the EEOC now assert that both these evidentiary rulings were erroneous.

        The plaintiffs also contend that the jury instructions were faulty in various ways. The most serious alleged error occurred in the first of five special interrogatories given by the court to the jury. The interrogatory read:

Do you find from a preponderance of the evidence that the defendants, through the conduct and statements of its officers, agents and employees, discriminated against the plaintiff on account of his age when the defendants realigned the Texas sales territories?

        The plaintiffs timely objected to this interrogatory on the grounds that the question incorrectly focused on the decision to realign the territories rather than on the decision to select Mitte as the employee to be discharged. The jury was instructed that a negative answer to this interrogatory terminated their decision process and that, should they return such an answer, they need not answer any further questions.

        The jury answered the above interrogatory "We do not". The trial court therefore entered judgment for the defendants.

       II. Analysis

        The EEOC and Mitte contend that the district court improperly excluded evidence of age-related remarks made by Morris and the EEOC's letter of violation. Further, the plaintiffs contend that the jury instructions misled the jury, improperly stated the law, and therefore provide an additional basis for reversal. We address each contention in turn.

  1. Exclusion of Evidence

            We begin by recognizing that the "trial court's discretion to admit or exclude evidence is generally broad, but competent evidence cannot be excluded without a sound and acceptable reason." Davidson Oil Country Supply Co. v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir.1990); see also Folks v. Kirby Forest Ind. Inc., 10 F.3d 1173, 1181 (5th Cir.1994). Courts of Appeals are to review a district court's evidentiary rulings

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    "only for abuse of discretion." Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir.1993). Federal Rule of Civil Procedure 61 requires that an error in the exclusion of evidence by the trial court should not be the basis for setting aside a verdict, "unless refusal to take such action appears to the court inconsistent with substantial justice." In order to vacate a judgment based on an error in an evidentiary ruling, "this court must find that the substantial rights of the parties were affected." Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 349 (5th Cir.1983). With the standard of review before us, we proceed to an analysis of the district court's decision to exclude the age-related remarks and the EEOC letter of violation.

           I. Age-Related Remarks

            Morris made the excluded age-related statements over the four year period during which he was the District Manager in charge of Mitte's territory. The excluded testimony (heard by the district court outside of the presence of the jury) was that Morris remarked that Mitte was incapable; that he was old and inflexible; that Morris had bragged about "how he jumped that old man about smoking his pipe"; that he pulled down Mitte's hat and said "old man hat." The plaintiffs offered additional testimony, also excluded from the jury's consideration, that the above remarks exemplified...

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