903 F.2d 1306 (10th Cir. 1990), 86-1700, Messina v. Kroblin Transp. Systems, Inc.

Docket Nº:86-1700.
Citation:903 F.2d 1306
Party Name:Michael C. MESSINA, Plaintiff-Appellant, v. KROBLIN TRANSPORTATION SYSTEMS, INC., Defendant-Appellee.
Case Date:May 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1306

903 F.2d 1306 (10th Cir. 1990)

Michael C. MESSINA, Plaintiff-Appellant,



No. 86-1700.

United States Court of Appeals, Tenth Circuit

May 21, 1990

Page 1307

Louis W. Bullock of Bullock and Bullock, Tulsa, Okl., for plaintiff-appellant.

Neal Tomlins of Baker, Hoster, McSpadden, Clark & Rasure, Tulsa, Okl., (J. Ronald Petrikin, M. Benjamin Singletary, and Timothy A. Carney of Gable & Gotwals, Tulsa, Okl., on the briefs), for defendant-appellee.

Before LOGAN, BRORBY, and EBEL, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Michael Messina appeals from a jury verdict in favor of defendant Kroblin Transportation Systems, Inc. (Kroblin) on his claim that he was unlawfully terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ch. 14, and from a directed verdict for defendant on Messina's pendent state law slander claim. On appeal we consider three issues, whether the district court erred (1) in instructing the jury on Messina's ADEA claim; (2) in directing a verdict for defendant on Messina's slander claim; and (3) in refusing to admit evidence of the conduct of certain defense witnesses. 1 We affirm the district court on all issues.


On Messina's ADEA claim, the district court instructed the jury in accordance with its view of the standards enunciated in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and this circuit's opinion in Smith v. Consolidated Mut. Water Co., 787 F.2d 1441 (10th Cir.1986). The instructions at issue provided:

"In order to prove the essential elements of plaintiff's claim ... the burden is upon plaintiff to establish by a preponderance

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of evidence in the case the following facts:

First: That the plaintiff was employed by the defendant, and was capable of continuing to perform in a satisfactory manner;

Second: That he was at least forty years of age but less than seventy years of age at the time of his discharge;

Third: That the plaintiff's age was the determinative factor in whether he was to be retained or discharged; and

Fourth: that a younger person replaced him.

Once plaintiff has established through evidence the essential elements of his age discrimination claim ... the burden of proof shifts to the defendant to show some legitimate non-discriminatory reason for the plaintiff's termination. If defendant comes forth with such evidence, the burden shifts back to plaintiff to prove that the business reason proffered by defendant is merely a pretext for discriminating against plaintiff."

I R. tab 83. Messina argues that this instruction incorrectly required him to prove the ultimate question of the trial--whether age was the...

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