Conroy v. Abraham Chevrolet-Tampa, Inc.

Decision Date30 June 2004
Docket NumberNo. 03-11405.,03-11405.
Citation375 F.3d 1228
PartiesGlen J. CONROY, Plaintiff-Appellant, v. ABRAHAM CHEVROLET-TAMPA, INC., d.b.a. Autoway Chevrolet, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Craig L. Berman, Berman Law Firm, P.A., Saint Petersburg, FL, Shannon McLin Carlyle, The Carlyle App. Law Firm, Lady Lake, FL, John G. Crabtree, John G. Crabtree, P.A., Key Biscayne, FL, for Plaintiff-Appellant.

John Richard Hamilton, Foley & Lardner, Orlando, FL, for Defendant-Appellee.

Susan Ruth Oxford, Washington, DC, for Amicus Curiae, U.S. EEO.

Appeal from the United States District Court for the Middle District of Florida.

Before WILSON and FAY, Circuit Judges, and MILLS*, District Judge.

FAY, Circuit Judge:

The main thrust of this appeal involves the question of whether or not it is mandatory that district courts give a pretext instruction to the jury in employment discrimination cases. We decide that it is not and answer in the negative. The other issue raised deals with the admissibility of certain evidence and we find no abuse of discretion.

Glenn J. Conroy ("Conroy") appeals from a final judgment entered after a jury returned a verdict in favor of his former employer, Abraham Chevrolet-Tampa ("Abraham Chevrolet"). Conroy sued Abraham Chevrolet, alleging his former employer had discharged him because of his age and in retaliation for his refusal to terminate another older worker, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. In his appeal, Conroy first argues that the district court erred by admitting testimony regarding the results of a post-termination investigation. Conroy also contends the district court erred in refusing his request that the jury receive an instruction on "pretext"-that is, for the jury to be instructed it could infer discrimination if it disbelieved Abraham Chevrolet's explanation for firing Conroy. For the reasons set forth below, we find the district court did not commit reversible error and therefore affirm.


Conroy, who was born in 1946, joined Abraham Chevrolet as a sales manager for its commercial fleet department in March 2000. William Bledsoe ("Bledsoe") became general manager of the dealership in October 2000 and remained until he was discharged in April 2001. Conroy alleged that during Bledsoe's time at the dealership, Bledsoe frequently made "ageist" comments, referring to the staff in the commercial sales department as "geriatrics" and referring to older employees as "old-geezer," "old-fart," and "dead wood." Bledsoe admitted to making at least some of these comments, but he claimed they were slang expressions and that he did not realize they would offend some employees. Bledsoe also admitted to mentioning his desire to hire "younger and more aggressive people," but stated that he was speaking figuratively, and not literally.

When Bledsoe took over as general manager, he expressed concern to Conroy about the commercial department's poor performance. According to Conroy, Bledsoe asked him to fire another employee, Dick Weber, who was in his early 70's at the time. Bledsoe denied ever making this request, and instead contended that Conroy attempted to partially blame Weber for the department's substandard performance and even asked Bledsoe if he could fire Weber. Bledsoe claimed he responded by saying Conroy could fire Weber if that was indeed the reason for the department's low performance. To add further support to Bledsoe's contention that he never considered firing Weber, Abraham Chevrolet pointed out at trial that Weber was selling more vehicles than anyone else in the department, with 56 percent of the sales for the entire commercial fleet in 2000.

Bledsoe fired Conroy on January 15, 2001, telling Conroy he was doing a "good job" but that the company was going in a different direction. But when Conroy attempted to receive unemployment benefits, he discovered that Bledsoe's explanation for discharging Conroy was "unsatisfactory performance." Conroy contacted Roberta Bonavia, the Human Resources Director of Abraham Chevrolet's parent company, Auto Nation, Inc, and objected to Bledsoe's representation that poor performance was the motivating factor behind his termination. After Bonavia investigated the matter, Bledsoe agreed to change the stated reason for Conroy's discharge to "other."

On March 19, 2001, Conroy filed a charge of discrimination with the EEOC. Conroy then initiated his complaint against Abraham Chevrolet in August 2001, alleging Bledsoe had terminated him due to his age and because of his refusal to fire Dick Weber, an older employee, in violation of ADEA.1 The district court denied Abraham Chevrolet's motion for summary judgment and the case proceeded to trial.

At trial, Conroy called Bonavia to testify regarding her investigation of the circumstances surrounding Conroy's discharge. Bonavia stated that when Conroy spoke with her, he said he believed he was terminated because he refused to fire Dick Weber. Nevertheless, Bonavia testified that based on her investigation, she believed Bledsoe terminated Conroy for poor performance, and that he told Conroy otherwise to "soften the blow." Conroy then asked Bonavia questions directed at the thoroughness of her investigation, and she admitted to having only talked to one other employee to determine whether Bledsoe sought to have Dick Weber fired. On cross-examination, Abraham Chevrolet asked Bonavia if, when investigating Conroy's claims, she had looked into industry standards regarding the number of sales and amount of profits each sales associate should produce each month. Conroy immediately objected to this line of questioning, claiming that information acquired after termination was inadmissible. The district court, however, allowed the questioning, reasoning that Conroy had "opened the door" on direct examination with questions to Bonavia suggesting that she had not adequately investigated his claims. Bonavia then testified that although sales associates are supposed to sell about 12 to 15 cars per month and account for $20,000 in profit, Conroy's department never performed within this range. She then stated that it was not unusual for this kind of poor performance to result in termination.

During the jury charge conference, Conroy proposed a jury instruction on "pretext." This instruction would have informed the jury that it was permitted, but not required, to infer discrimination or retaliation if it disbelieved Abraham Chevrolet's explanation for terminating Conroy. The district court declined to give this instruction, stating that (1) the Eleventh Circuit pattern jury instructions "sufficiently incorporate the concept that the plaintiff wishes to get across to the jury," and (2) the Eleventh Circuit has directed that due to the strong likelihood of jury confusion, juries are not to be instructed on the legal framework used to resolve employment discrimination cases. Conroy's counsel, did, however, have the opportunity to argue pretext to the jury in closing statements. The jury was also instructed on drawing inferences from the evidence,2 weighing the credibility of witnesses,3 and burden of proof.4

The jury returned a verdict for Abraham Chevrolet on October 21, 2002. Conroy filed a timely motion for a new trial which the district court denied. The district court then entered final judgment in accordance with the verdict and Conroy now appeals.


We first briefly address Conroy's contention that the district court committed reversible error in allowing Bonavia to testify about her post-termination investigation. We review the district court's evidentiary rulings for abuse of discretion, and will only reverse if an erroneous ruling resulted in "substantial prejudice." Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir.1999). In applying this standard, we will affirm a district court's evidentiary ruling unless the district court has made a "clear error of judgment" or has applied an "incorrect legal standard." Id. at 1306.

Given this standard, we find no abuse of discretion by the district court. Although we agree with Conroy that "after-acquired evidence cannot be used as the basis for Defendants' employment decision," see Chapman v. AI Transport, 229 F.3d 1012, 1068 n. 101 (11th Cir.2000) (citing McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 359-60, 115 S.Ct. 879, 885, 130 L.Ed.2d 852 (1995)), we are not convinced that Bonavia's testimony regarding the monthly sales figures is considered "after-acquired." These were simply benchmarks that Bledsoe testified were available to him at the time he discharged Conroy. Nevertheless, even if Bonavia's testimony could be considered after-acquired, evidence which normally would be inadmissible is indeed admissible if the opposing party opens the door to that line of questioning. See Shaps v. Provident Life & Acc. Ins. Co., 244 F.3d 876, 886 (11th Cir.2001) (finding that although it would normally be improper for a defendant to present evidence of a plaintiff's financial condition, the defendant's evidence was proper as a response to plaintiff's initial attempt to portray herself as financially dependent). Bonavia's investigation became an issue at the trial. Once it was introduced as such by Conroy it was subject to full interrogation. We agree with the district court that when Conroy's direct examination consisted of questions to suggest that Bonavia performed an inadequate investigation, Abraham Chevrolet was entitled to respond by inquiring into the full extent of the investigation.


We now turn to Conroy's argument that the district court erred by not giving the jury a specific instruction on pretext. "We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party." Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir.2000). If,...

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