Bradford v. Norfolk Southern Corp.

• Decision Date: 18 May 1995
• Docket Number: No. 94-2625,94-2625
• Citation: 54 F.3d 1412
• Parties: 41 Fed. R. Evid. Serv. 1157 Merle C. BRADFORD, Plaintiff/Appellant, Thomas E. Buckley, Plaintiff, Ronald V. Dinga, Ronald R. Merzweiler, George J. Mueller, Plaintiffs/Appellants, Richard E. Neiman, Plaintiff, Dolores J. Quillen, Nancy D. Rasch, Pauline M. Richardson, Judith A. Riegal, Francis L. Schwinn, Patricia L. Sturgis, James Toebe, Kenneth H. Vorderstrasse, Sharon E. Wind, Ray L. Jorn, Fred F. Iwan, Plaintiffs/Appellants, Shirley A. Joslin, Plaintiff, Anthony T. Kotowski, Thomas J. Lauretta, Jr., Maureen Robeen, Carol A. Smith, Barbara D. West, Leonora M. Wolf, Mary Lou Zonza, Plaintiffs/Appellants, v. NORFOLK SOUTHERN CORPORATION, and its subsidiaries, or affiliates, Norfolk and Western Railway Company, Southern Railway Company, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1412

54 F.3d 1412

41 Fed. R. Evid. Serv. 1157

Merle C. BRADFORD, Plaintiff/Appellant,

Thomas E. Buckley, Plaintiff,

Ronald V. Dinga, Ronald R. Merzweiler, George J. Mueller,

Plaintiffs/Appellants,

Richard E. Neiman, Plaintiff,

Dolores J. Quillen, Nancy D. Rasch, Pauline M. Richardson,

Judith A. Riegal, Francis L. Schwinn, Patricia L. Sturgis,

James Toebe, Kenneth H. Vorderstrasse, Sharon E. Wind, Ray

L. Jorn, Fred F. Iwan, Plaintiffs/Appellants,

Shirley A. Joslin, Plaintiff,

Anthony T. Kotowski, Thomas J. Lauretta, Jr., Maureen

Robeen, Carol A. Smith, Barbara D. West, Leonora

M. Wolf, Mary Lou Zonza, Plaintiffs/Appellants, v. NORFOLK SOUTHERN CORPORATION, and its subsidiaries, or

affiliates, Norfolk and Western Railway Company,

Southern Railway Company, Defendants/Appellees.

No. 94-2625.

United States Court of Appeals,

Eighth Circuit.

Submitted March 16, 1995.

Decided May 18, 1995.

Jean E. Jones, St. Louis, MO, argued (William F. Rogers, on the brief), for appellant.

Thomas Weaver, St. Louis, MO, argued (Timothy K. Kellett and Joan Z. Cohen, on the brief), for appellee.

Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

WOLLMAN, Circuit Judge.

Merle C. Bradford and 25 co-plaintiffs filed suit against their employer in January 1992, alleging discriminatory practices in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34, and the Missouri Human Rights Act, Mo.Rev.Stat. Secs. 213.010-.137. The plaintiffs were at one time all rate clerks in the St. Louis office of Norfolk & Western Railway Company, a wholly owned subsidiary of Norfolk Southern Railway Corporation, which, in turn, is a wholly owned subsidiary of Norfolk Southern Corporation (collectively "Norfolk Southern"). At the close of the clerks' case, the district court ¹ entered a judgment as a matter of law for Norfolk Southern because the clerks had failed to establish a prima facie case of discrimination. On appeal, the 22 remaining plaintiff-clerks ("clerks") assign as error the exclusion of significant amounts of evidence and further claim that the remaining evidence did in fact establish a prima facie case. We affirm.

I.

Norfolk Southern is an integrated railway system whose revenue accounting department is headquartered in Atlanta, Georgia. In August 1990, rate clerks in Norfolk Southern's St. Louis office were offered a separation package composed of a $40,000 lump sum distribution, medical benefits for those 55 years old and older, and relocation expenses to anywhere in the continental United States. Twenty-two employees accepted this offer. In October 1990, Norfolk Southern announced its intention to move its rate work from St. Louis to Atlanta because the St. Louis office was going to close. The union resisted this move, contending that it would violate the terms of numerous protective agreements afforded employees as a result of Norfolk Southern's historic mergers and consolidations. Norfolk Southern eventually yielded and withdrew its proposed Atlanta transfer. In December 1990, however, Norfolk Southern notified the St. Louis office rate clerks that their work was being transferred to Roanoke, Virginia, the historic headquarters of the Norfolk & Western Railway. The union did not contest this move. The clerks were given the option of following their work to Roanoke, receiving a separation package of approximately $40,000, or bumping (i.e., displacing an employee with less seniority) into another position in St. Louis in accord with their seniority rights. Nine of the clerks transferred to Roanoke, one was able to bump into another position in St. Louis, and the remaining twelve accepted the separation package. ²

The clerks who transferred to Roanoke testified that the working conditions in Roanoke were considerably less pleasant than those they were accustomed to in St. Louis. There was a shortage of telephones and tariff books. The room the clerks were placed in was in disrepair and was furnished with antiquated furniture. The supervision was also somewhat disorganized because the supervisors commuted from Atlanta. Norfolk Southern, however, viewed these conditions as temporary because it was constructing a new office building in downtown Roanoke, where some of the clerks now work, and was also planning to eventually consolidate all the rate work in Atlanta. In January 1992, Norfolk Southern announced this work transfer, thereby eliminating the need to retain any rate clerks in Roanoke. The clerks were again presented the options of transferring, bumping into another position, or accepting a separation agreement of $35,000 plus medical coverage for those aged 55 and older. This time, eight of the clerks bumped into different positions in Roanoke, with one accepting the separation package. No clerk who transferred to Roanoke lost any benefits, and several of the clerks actually received slight pay increases.

The clerks' theory at trial was that the series of moves was merely an attempt to get rid of older employees that Norfolk Southern knew would not follow the work around the country. The clerks proceeded under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), burden-shifting theory because there was no direct evidence of discrimination. The same analysis applies under the Missouri Human Rights Act. See Rinehart v. City of Independence, Mo., 35 F.3d 1263, 1265 n. 1 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1822, 131 L.Ed.2d 744 (1995); Finley v. Empiregas, Inc., 975 F.2d 467, 473 (8th Cir.1992). The clerks essentially composed two separate groups: those who did not transfer to Roanoke, who alleged that they were forced into accepting the separation package offered by Norfolk Southern and thereby were constructively discharged; and those who did transfer, who alleged that they were forced to do so solely because of their age. The one clerk who bumped into another position in St. Louis claimed that he too was discriminated against by being forced into this choice. Norfolk Southern countered that these moves were part of an ongoing long-term accounting consolidation in keeping with the evolution of the corporate entity. Norfolk Southern did not contest that the clerks were all over 40 years old, and there was also no question that they were doing satisfactory work. The district court ruled, however, that the clerks had failed to make out the remaining elements of a prima facie case, i.e., that Norfolk Southern had engaged in an adverse employment practice whereby the clerks were treated worse than younger employees.

II.

A. Evidentiary Exclusions

The clerks seek to supplement the record on appeal with those evidentiary exhibits that were excluded by the district court. Norfolk Southern does not contest this motion. We grant the motion and deem the additional materials submitted with the case.

The clerks claim that the district court erred in excluding testimony about personal circumstances that made it difficult for the clerks to move to Roanoke. Although under an appropriate set of facts a showing of personal circumstances could conceivably be relevant to a determination of constructive discharge, there was no showing that Norfolk Southern possessed any knowledge of the clerks' personal circumstances or that they were a factor in Norfolk Southern's decision to consolidate work and transfer employees. Accordingly, the clerks' personal circumstances do not support their claim of constructive discharge. Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 473 (8th Cir.1990) (quoting Cherchi v. Mobil Oil Corp., 693 F.Supp. 156, 163 (D.N.J.), aff'd, 865 F.2d 249 (3d Cir.1988) (table)); see Gray v. York Newspapers, Inc., 957 F.2d 1070, 1086 (3d Cir.1992) (recognizing test as an objective one); see also Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981) (employer must intend to force out employee). Thus, the district court did not abuse its discretion in refusing to allow such testimony. Nor did the district court abuse its discretion in excluding testimony by those who did not transfer concerning the working conditions they expected to encounter, their concerns about job security, and the general nature of the Roanoke job market. Such speculative considerations do "not constitute 'colorable evidence' " of a constructive discharge claim. Smith, 895 F.2d at 473 (quoting Cherchi, 693 F.Supp. at 163 n. 6).

Despite the court's ruling, the clerks repeatedly sought to introduce testimony, from both those St. Louis clerks who separated and those who followed their work to Roanoke, about the personal calculus their decisions entailed. Understandably, such a long distance transfer was no doubt a major disruption, particularly for those with long-time ties to the community. Absent some relevant legal basis for allowing the testimony of personal circumstances, however, of which we find none present here, the district court properly limited such testimony. Relevance is not defined by what is designed to evoke a jury's unfettered sympathies; rather, it is limited to that which makes the existence of a fact in issue more or less probable. Fed.R.Evid. 401. The clerks failed to show how their proffered evidence would have either aided in developing a prima facie case under McDonnell Douglas or tended to beget an inference of discrimination. Likewise, the district court did not err in excluding cumulative testimony about the working conditions actually experienced in Roanoke by those clerks who transferred, for they made no claim of constructive discharge, and such cumulative testimony would have added nothing to the development of their prima facie case. Nor did the district court err in refusing to allow the clerks to speculate about the extent of their rights under the collective bargaining agreements.

The clerks next contend that the district court abused its discretion in excluding...