Faulkner v. Super Valu Stores, Inc., 91-1273

• Decision Date: 01 September 1993
• Docket Number: No. 91-1273,91-1273
• Citation: 3 F.3d 1419
• Parties: 62 Fair Empl.Prac.Cas. 1289, 62 Empl. Prac. Dec. P 42,536 Herbert FAULKNER; Charles Titus; Edward J. Gonzales; Ralph Cravens; John Martinez; Alfred Acuna; Anthony Medina; and James Hodge, Plaintiffs-Appellants, v. SUPER VALU STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1419

3 F.3d 1419

62 Fair Empl.Prac.Cas. 1289,

62 Empl. Prac. Dec. P 42,536

Herbert FAULKNER; Charles Titus; Edward J. Gonzales Ralph Cravens; John Martinez; Alfred Acuna Anthony Medina; and James Hodge Plaintiffs-Appellants, v. SUPER VALU STORES, INC., Defendant-Appellee.

No. 91-1273.

United States Court of Appeals Tenth Circuit.

Sept. 1, 1993.

Patricia A. Coan of Patricia A. Coan, P.C., Denver, CO, for plaintiffs-appellants.

Carl F. Eiberger (Paul F. Hodapp and Kay-Dawn Allen with him on the briefs), of Eiberger, Stacy, Smith & Martin, Denver, CO, for defendant-appellee.

Steven S. Zaleznick, Cathy Ventrell-Monsees, and Robert L. Liebross, American Ass'n of Retired Persons, Washington, DC, on the brief for amicus curiae American Ass'n of Retired Persons.

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

The plaintiffs/appellants submitted applications for vacant warehousemen positions at Super Valu Stores, Inc. but were not considered for the vacancies. Plaintiffs then brought an age discrimination action against Super Valu under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1988). The jury returned a verdict in favor of Super Valu and the plaintiffs appeal, alleging various errors in the district court's jury instructions and evidentiary decisions.

FACTUAL BACKGROUND

Super Valu Stores, Inc., the defendant/appellee, is a wholesale grocer with a warehouse facility in Denver, Colorado. In 1986, one of Super Valu's Denver competitors, Associated Grocers, declared bankruptcy and Super Valu purchased Associated Grocers' warehouse. Due to an expected increase in business resulting from Associated Grocers' bankruptcy, Super Valu decided to hire a large number of new employees including warehousemen and drivers. Super Valu was inundated with applications for these positions.

The plaintiffs/appellants worked as warehouseman at Associated Grocers and applied for the same position at Super Valu after Associated Grocers' demise. All the plaintiffs were over forty years of age, had six to twenty-two years of experience as warehousemen at Associated Grocers, and were members of the International Brotherhood of Teamsters, Local 435, the same union representing warehousemen at Super Valu. Super Valu hired approximately 200 warehousemen, but chose not to consider applications from Associated Grocers' ex-warehousemen because Super Valu allegedly feared acts of The plaintiffs, alleging age discrimination, filed charges against Super Valu with the Equal Employment Opportunity Commission and subsequently received right to sue letters therefrom. The plaintiffs then brought an action in district court under the ADEA based on theories of disparate treatment and impact. After a two-week trial, the jury concluded Super Valu had not discriminated against the plaintiffs on the basis of age.

vandalism, disruption, and sabotage, and believed the disgruntled Associated Grocers' ex-employees would have an adverse effect on employee morale.

On appeal, the plaintiffs claim the disparate treatment and disparate impact jury instructions were erroneous and allege the jury instructions as a whole were confusing, overly technical, and failed to state applicable law. Plaintiffs further allege the district court improperly admitted evidence concerning Super Valu's business justifications and erred in excluding certain rebuttal exhibits proffered by the plaintiffs. ¹

DISCUSSION

Under the ADEA, "[i]t shall be unlawful for an employer ... to fail or refuse to hire ... any individual ... because of such individual's age." 29 U.S.C.A. Sec. 623(a) (West 1985). This protection applies to individuals "who are at least 40 years of age." 29 U.S.C.A. Sec. 631(a) (West 1985 & Supp.1993). The ADEA is considered a broad prohibition against arbitrary age discrimination in the work place. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985).

I. Jury Instructions

The plaintiffs allege multiple errors in the jury instructions. In reviewing such allegations, this court examines the record as a whole to determine whether the instructions state the applicable law and provide the jury with an appropriate understanding of the issues and the legal standards to apply. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988). "[N]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law." Perrell v. FinanceAmerica Corp., 726 F.2d 654, 656 (10th Cir.1984). An erroneous jury instruction requires reversal "only if we have substantial doubt whether the instructions, taken together, properly guided the jury in its deliberations." 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).

A. Disparate Treatment

Plaintiffs first allege errors in the jury instructions which relate to their disparate treatment claim. Disparate treatment is a cognizable theory of discrimination under the ADEA. Hazen Paper Co. v. Biggins, --- U.S. ----, ----, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993); see Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). A disparate treatment claim exists when an employer treats an individual less favorably than others because of his or her protected status. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). Because disparate treatment is a form of intentional discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Biggins, --- U.S. at ----, 113 S.Ct. at 1706. See also Coe v. Yellow Freight System, Inc., 646 F.2d 444, 448 (10th Cir.1981).

The basic allocation of burdens for a disparate treatment claim is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). ² Generally, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94. Once the plaintiff establishes a prima facie case, a presumption of unlawful discrimination is created and the burden shifts to the employer "to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason." Id. at 254, 101 S.Ct. at 1094. The employer "need not persuade the court that it was actually motivated by the proffered reasons," but satisfies its burden merely by raising "a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 248, 254, 101 S.Ct. at 1089, 1094. If the burden of production is carried by the defendant, the plaintiff is given the opportunity to prove the reasons provided by the employer are a pretext for discrimination. Id. at 253, 101 S.Ct. at 1093. The plaintiff retains the ultimate burden of proving he or she was the victim of intentional discrimination. Id.

Plaintiffs claim the disparate treatment jury instructions misstated the law by shifting the jury's focus from the employer's motivation to its business judgment.

A proper jury instruction in a disparate treatment action under the ADEA should reflect the following:

The essence of the correct formulation of the standard of proof is that it requires the jury to focus on the effect of the factor of age. The jury must understand that it is not enough that age discrimination figure in the decision to demote or discharge; age must "make a difference" ... in the sense that, "but for" the factor of age discrimination, the employee would not have been adversely affected.

Perrell, 726 F.2d at 656. The jury instruction should not, however, require plaintiffs to prove the employer's justifications were false if the plaintiffs can prove age was a determinative factor. E.E.O.C. v. Prudential Federal Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985).

We discern no error in the jury instructions. Although plaintiffs focus their appeal on jury instructions numbers 14 and 15, the instructions must be examined in their entirety. Instruction number 13 clearly sets forth the proper allocation of proof under Burdine and McDonnell, and informs the jury that age must be the determinative factor in the failure to hire. ³ Instructions 14 and 15 focus more specifically on Super Valu's rationale for not hiring the plaintiffs and whether the rationale was pretextual. ⁴ Such instructions are helpful to the jury and do not alter the fact that instruction 13 directed the jury to consider whether age was a determinative factor in Super Valu's decision not to hire the plaintiffs.

The plaintiffs next claim jury instruction number 14 incorrectly stated the law by allowing Super Valu a good faith defense. Instruction number 14 states, in relevant part, that "[i]t is not necessary that defendant, in offering legitimate, non-discriminatory reasons for not hiring plaintiffs, was right or correct in its reasons, but only that it believed them in good faith." (Emphasis added.) Plaintiffs assert good faith is only relevant in determining willfulness under the ADEA. We disagree.

The ADEA allows a plaintiff to recover liquidated damages if an employer "willfully" violates the act, 29 U.S.C. Sec. 626(b), and good faith is readily acknowledged as a defense against charges of willfulness. Thurston, 469 U.S. at 128 n. 22, 105 S.Ct. at 625 n. 22; E.E.O.C. v. Wyoming Retirement System, 771 F.2d 1425, 1431 (10th Cir.1985); Mistretta v. Sandia Corp., 639 F.2d 588, 595 (10th Cir.1980). Although good faith is...