Burks v. Oklahoma Pub. Co., 94-6403

• Decision Date: 15 April 1996
• Docket Number: No. 94-6403,94-6403
• Citation: 81 F.3d 975
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 945, 34 Fed.R.Serv.3d 1062, 44 Fed. R. Evid. Serv. 420 Vurla B. BURKS, Plaintiff-Appellant, v. The OKLAHOMA PUBLISHING COMPANY and Richard A. Clark, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 975

81 F.3d 975

70 Fair Empl.Prac.Cas. (BNA) 945, 34

Fed.R.Serv.3d 1062,

44 Fed. R. Evid. Serv. 420

Vurla B. BURKS, Plaintiff-Appellant, v. The OKLAHOMA PUBLISHING COMPANY and Richard A. Clark Defendants-Appellees.

No. 94-6403.

United States Court of Appeals Tenth Circuit.

April 15, 1996.

Appeal from the United States District Court for the Western District of Oklahoma; Lee R. West, Judge. (D.C. No. CIV-93-663-W).

Joseph R. Weeks, Oklahoma City University School of Law, Oklahoma City, Oklahoma (Jan Preece Gaddis, Duncan, Oklahoma, with him on the briefs), for Plaintiff-Appellant.

Nathan L. Whatley (Gary C. Pierson with him on the briefs) of Lytle Soule & Curlee, Oklahoma City, Oklahoma, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, COFFIN ^* and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff Vurla Burks brought this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to -17. She alleged that the Defendants, the Oklahoma Publishing Company ("OPUBCO") and Richard Clark, impermissibly discriminated against her by constructively discharging her based on her age and her sex. The jury returned a verdict for the Defendants, and Ms. Burks now appeals. She asserts that the district court made several errors during the course of the proceedings. For the reasons that follow, we affirm in part and reverse and remand in part.

Ms. Burks was an OPUBCO employee for twenty-eight years. She spent her last two years of employment as a supervisor in the telecommunications department. Ms. Burks began to feel that her job was in jeopardy when Mr. Clark informed her that he would not authorize $16 for Ms. Burks to have new business cards printed. A few months later, Mr. Clark confronted Ms. Burks with the accusation that she had listened in on the telephone calls of OPUBCO's president. In a meeting with Mr. Clark, Ms. Burks twice asked him whether her services would be needed in the future. According to Ms. Burks, Mr. Clark simply stared at her for twenty to twenty-five seconds, rather than responding to her questions. From this Ms. Burks concluded that she would be fired if she did not resign. Thus, at the age of 61, Ms. Burks resigned from her position with OPUBCO. She then brought this suit alleging that she was constructively discharged on the basis of her age and her sex.

Ms. Burks raises four issues on appeal. First, she contends that the district court erred when it refused to give the jury her requested instruction on constructive discharge. In her second and third issues, Ms. Burks argues the district court improperly refused to allow her to add a witness to her witness list and then erred when it would not allow the same witness to testify in rebuttal after the witness violated a sequestration order. Finally, Ms. Burks argues that the district court abused its discretion when it denied her motion to compel discovery.

I. Constructive Discharge Jury Instruction

Under the ADEA, an employer may not "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To prove constructive discharge, the employee must show that her "employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986). We have held that this formulation of the constructive discharge standard also constitutes the "paradigmatic" jury instruction in a constructive discharge case. Mitchell v. Mobil Oil Corp., 896 F.2d 463, 468 (10th Cir.), cert. denied, 498 U.S. 898, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990). We noted, however, that the trial court should "tailor this instruction to fit the facts of the case." Id.

In this case, the district court gave to the jury the paradigmatic instruction we contemplated in Mitchell. Ms. Burks believed, however, that an additional instruction was necessary to address adequately the facts of her case. Specifically, she asked the district court to instruct the jury that "an employee is constructively discharged if the employer's actions reasonably lead the employee to conclude that, if she does not resign, she will be discharged." Appellant's App. at 22. Ms. Burks argues that the district court erred when it failed to give this instruction. We "will find reversible error in a trial court's jury instructions only if we have substantial doubt whether the instructions, taken together, properly guided the jury in its deliberations." Mitchell, 896 F.2d at 468.

This court has recognized that an employee can prove a constructive discharge by showing that she was faced with a choice between resigning or being fired. See, e.g., Acrey v. American Sheep Industry Ass'n, 981 F.2d 1569, 1573-74 (10th Cir.1992) (employee told to resign or she would be fired); Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir.1990) (employee faced with choice between early retirement or being fired). Thus, a district court could properly give an instruction similar to the one requested by Ms. Burks if the facts of the case warranted it. Ms. Burks argues that she was presented with a choice between being fired and resigning. As proof of this, she offers the fact that Mr. Clark did not respond when she asked about her future with the department. She also offers the fact that Mr. Clark refused to authorize an expenditure for new business cards. We believe, however, that these facts are at best ambiguous as to whether Ms. Burks truly was presented with a choice between resigning or being fired. Thus, we cannot say that we have substantial doubt whether the jury was properly guided in its deliberations as a result of the district court's refusal to give the jury Ms. Burks' requested instruction. We hold that the district court did not err in this regard.

II. Amendment to Witness List

In its scheduling order, the district court required the parties to submit their final witness lists by March 1, 1994, and to complete discovery by April 1, 1994. Appellant's App. at 1. The trial was originally scheduled to begin sometime in early May. On April 12, 1994, Ms. Burks filed a motion seeking to supplement her witness list. The one-page motion did not identify any witness by name. Appropriately, the district court denied the motion. Then, on April 21, 1994, Ms. Burks filed a more specific motion in which she identified four proposed witnesses. On May 4, 1996, the district court allowed the addition of two of the four, but refused the addition of the other two. Ms. Burks now challenges this refusal with respect to one proposed witness. Ms. Burks argues that this proposed witness, a co-worker, is essential to her case because she is an unbiased witness who can substantiate the intolerable conditions under which Ms. Burks worked.

Federal Rule of Civil Procedure 16(b) gives district courts wide latitude in entering scheduling orders. Rule 16(b) also provides that such orders shall not be modified "except upon a showing of good cause and by leave of the district judge." Thus, we review a district court's refusal to modify a scheduling order for abuse of discretion. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir.1990). In the context of a decision to exclude a witness not listed in a pretrial order, we consider four factors to determine whether the district court abused its discretion:

"(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in court, and (4) bad faith or willfulness in failing to comply with the court's order."

Smith v. Ford Motor Co., 626 F.2d 784, 797 (10th Cir.1980) (quoting Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir.1977)), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981). ¹

We believe that the first two factors weigh in favor of Ms. Burks. Defendants may have been surprised that Ms. Burks would seek to add a new witness at such a late date, but they could not have been surprised, given the circumstances of the case, that Ms. Burks would want to introduce the corroborating testimony of a co-worker. Additionally, it is unlikely that any prejudice to the Defendants would have occurred because the co-worker's proposed testimony would not have introduced any new issues other than witness credibility. If any surprise or prejudice did occur, Defendants could have cured it easily. The proposed witness was one of Defendants' employees. Thus, they could have interviewed or deposed her without difficulty.

The last two factors, however, weigh in favor of Defendants. It appears from the record that the addition of new witnesses at such a late date threatened to delay the trial. Although the trial did not actually begin until the last week of May, it apparently was originally scheduled to begin in early May. See Appellant's App. at 159 no. 69 (district court docket sheet, entry of May 12 continuing trial till May 23). In an April 26 hearing before the district court, defense counsel complained about the addition of new witnesses "eight work days before the trial." Appellees' App. at 237. Although neither party has informed this court when the trial was originally scheduled to begin, it appears that the beginning of the trial was imminent when Ms. Burks identified her new proposed witnesses. In this context it is reasonable to believe that allowing Ms. Burks to add new witnesses to her witness list would have caused a postponement of the trial, despite the witnesses' ready availability. Defe...