Davis v. Combustion Engineering, Inc., 82-5471

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation742 F.2d 916
Docket NumberNo. 82-5471,82-5471
Parties35 Fair Empl.Prac.Cas. 975, 74 A.L.R.Fed. 727, 35 Empl. Prac. Dec. P 34,585, 16 Fed. R. Evid. Serv. 223 Clarence F. DAVIS, Plaintiff-Appellee, v. COMBUSTION ENGINEERING, INC., Defendant-Appellant.
Decision Date16 August 1984

James C. Lee, Lee & Hanzelik, Chattanooga, Tenn., James M. Paulson (argued), Boston, Mass., for defendant-appellant.

Harry F. Burnette (argued), Brown, Dobson & Burnette, Chattanooga, Tenn., for plaintiff-appellee.

Before JONES and WELLFORD, Circuit Judges; and RUBIN, District Judge *

CARL B. RUBIN, District Judge.

Appellant Combustion Engineering, Inc. ("Combustion"), appeals the denial of its motion for a new trial following a jury trial in the United States District Court for the Eastern District of Tennessee. The jury returned a verdict on special issues, finding appellant liable for a willful violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. Sec. 621 et seq., and awarding appellee Clarence F. Davis $22,200 in back pay and $88,800 in compensation for future losses or "front pay." In addition, the district court awarded appellee $20,000 in liquidated damages and $40,813.90 in attorney's fees, for a total award of $171,813.90.

Five issues are raised on appeal: (1) whether the trial court erred in permitting the expert testimony of appellee's witness, Professor Thomas E. Geraghty; (2) whether the trial court erred in instructing the jury that appellant was required to meet a prima facie showing of age discrimination by introducing "credible" evidence to the contrary; (3) whether the trial court properly defined a "willful" violation of the ADEA in its instructions to the jury; (4) whether the trial court properly awarded appellee compensation for future losses ("front pay"); and (5) whether the trial court's award of attorney's fees was proper. Each of these issues was raised in appellant's motion for a new trial, which the trial court denied. We will consider these issues in the order raised.


Appellant's first contention is that the trial court erred in qualifying Professor Thomas E. Geraghty as an expert witness and in permitting him "to testify to the ultimate legal conclusion in the case--whether age discrimination had occurred." Appellant's Brief at 5. Appellant argues that Professor Geraghty was unqualified to testify as an expert in the area of age discrimination and that testimony as to his conclusions "usurped the function of the court and unfairly and irreparably influenced the jury's decision." Id. 1

Professor Geraghty's qualifications were brought out at trial. His undergraduate degree was in business administration. He also had an advanced degree in that subject, with concentration in the areas of industrial management and industrial relations.

His employment history included work as a chief industrial engineer and consulting work in the areas of finance and personnel. He has written personnel policies and conducted training sessions in personnel matters.

At the time of trial, Professor Geraghty was Professor of Management and Marketing at the University of Tennessee-Chattanooga. His teaching duties were largely in the areas of production and personnel.

He had not previously been involved in the area of age discrimination, and he was unfamiliar with the specifics of the ADEA. The record does not reveal his familiarity, if any, with discrimination law in general.

He testified at trial that in his opinion, based on his examination of appellant's personnel records, appellee was terminated because of his age. Pursuant to an analysis of those records, he testified that he was able to eliminate all other factors as bases for appellee's discharge.

Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The decision to allow a witness to testify as an expert is largely within the discretion of the trial court and will not be disturbed on appeal unless clearly erroneous or an abuse of discretion. Mannino v. International Manufacturing Co., 650 F.2d 846, 849 (6th Cir.1981); Morvant v. Construction Aggregates Corp., 570 F.2d 626, 634 (6th Cir.), cert. dismissed, 439 U.S. 801, 99 S.Ct. 44, 58 L.Ed.2d 94 (1978); United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977).

Rule 702 should be broadly interpreted on the basis of whether the use of expert testimony will assist the trier of fact. Mannino, supra. The fact that a proffered expert may be unfamiliar with pertinent statutory definitions or standards is not grounds for disqualification. Such lack of familiarity affects the witness' credibility, not his qualifications to testify. Ellis v. K-Lan Co., Inc., 695 F.2d 157, 161 (5th Cir.1983).

Applying these standards, we hold that the trial court did not abuse its discretion in permitting Professor Geraghty to testify as an expert. We note first that the court applied the correct legal standard in reaching its decision. Cf. Mannino, supra, at 849; Barker, supra, at 1022. The Court's conclusion that Professor Geraghty's testimony would assist the jury was not clearly erroneous, given the broad standards of Rule 702.

We note further that appellant's counsel was given, and took full advantage of, the opportunity to challenge Professor Geraghty's familiarity with the ADEA and his credibility as an expert. Tr. at 263-64. In addition, the court carefully instructed the jury that they were to determine the weight and credibility to be given the expert's testimony. Tr. at 446-47. Under these circumstances, we conclude that the trial court did not err in permitting the expert testimony of Professor Geraghty.

We also reject appellant's challenge to the substance of Professor Geraghty's testimony. See fn. 1, supra. Under Federal Rule of Evidence 704, otherwise admissible opinion testimony by an expert is not objectionable on the ground that it embraces an ultimate issue of fact. United States v. Barrett, 703 F.2d 1076, 1084 n.14 (9th Cir.1983); Moore v. Wesbar Corp., 701 F.2d 1247, 1253 (7th Cir.1983); United States v. Kelly, 679 F.2d 135, 136 (8th Cir.1982). See also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3400 n. 9, 77 L.Ed.2d 1090 (1983). The first three instances of challenged testimony are simply opinions which embrace an ultimate fact, i.e., the presence of age discrimination, and are thus clearly within the ambit of the Rule.

The fourth challenged bit of testimony involves an opinion regarding "unlawful" age discrimination. It is therefore arguably within the exception to Rule 704 for opinions "phrased in terms of inadequately explored legal criteria." See Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir.1983); Advisory Committee Note on Rule 704. Assuming, arguendo, that it was error to admit this one bit of testimony, we find the error to be harmless. See Fed.R.Civ.P. 61. As noted above, Professor Geraghty's lack of familiarity with the provisions of the ADEA was exposed on cross-examination. More significantly, the jury was instructed that they were to determine the weight to give the expert's opinion, Tr. at 446-47, and they were specifically instructed that they could "totally disregard" such opinion if they found it unsound for any reason. Id. at 447. Under these circumstances, no reversible error was committed.


Appellant also assigns as error the trial court's instruction on a defendant's evidentiary burden in meeting a prima facie showing of age discrimination. The trial court instructed the jury that a plaintiff was entitled to a verdict in his favor upon establishing a prima facie case of age discrimination, unless the defendant proffered "credible evidence" of legitimate, non-discriminatory reasons for its actions. 2 Appellant argues that, by speaking in terms of "credible evidence," the trial court misstated appellant's evidentiary burden.

This Court has adopted, in age discrimination cases, a modified version of the guidelines established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) for allocating the burden of proof in Title VII cases. Laugesen v. Anaconda, 510 F.2d 307 (6th Cir.1975). In McDonnell Douglas, the Supreme Court stated that, once a plaintiff has met his initial burden of establishing a prima facie case of discrimination, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for its conduct. McDonnell Douglas, supra, 411 U.S., at 802, 93 S.Ct. at 1824. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), the Court described the defendant's burden as one of clearly setting forth, "through the introduction of admissible evidence" the reasons for its conduct. Appellant argues that the trial court, by casting its instructions on defendant's burden in terms of "credible" evidence, imposed a standard higher than that established in Burdine.

While we believe that it is better practice to use the phrase "admissible evidence", we do not believe that the jury instructions on burden of proof, taken as a whole, require reversal.

In using the phrase "admissible evidence," the Supreme Court in Burdine was simply indicating that a defendant could not meet its burden by advancing an "articulation," such as the answer to a Complaint or the argument of counsel, which could not be admitted as evidence. Burdine, supra, at 255 n.9, 101 S.Ct. at 1094 n.9. As this Court has pointed out, the use of the phrase "admissible evidence" was not meant to suggest that any admissible statement of non-discriminatory intent would suffice to enable a defendant to meet its burden. See Rowe...

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