Gehring v. Case Corp.

• Decision Date: 30 January 1995
• Docket Number: No. 94-1371,94-1371
• Citation: 43 F.3d 340
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 1373, 65 Empl. Prac. Dec. P 43,425, 63 USLW 2403 Dale GEHRING, Plaintiff-Appellant, v. CASE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 340

43 F.3d 340

66 Fair Empl.Prac.Cas. (BNA) 1373,

65 Empl. Prac. Dec. P 43,425, 63 USLW 2403

Dale GEHRING, Plaintiff-Appellant, v. CASE CORPORATION, Defendant-Appellee.

No. 94-1371.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1994.

Decided Dec. 28, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Jan. 30, 1995.

Michael R. Fox (argued), Mary E. Kennelly, Fox & Fox, Madison, WI, for plaintiff-appellant.

Lawrence M. Shindell (argued), Anne B. Shindell, Shindell & Shindell, Milwaukee, WI, for defendant-appellee.

Before LAY, ^* EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Case Corporation (formerly J.I. Case Corp.) is one of the world's leading producers of construction and agricultural machinery. Selling in a global market, Case has been under intense competitive pressure, and its older facilities have not flourished. The plant in Wausau, Wisconsin, had been shrinking steadily when in June 1991 management told Ray Watson, the Controller at Wausau, that he would have to make do with two cost accountants rather than five. Dale Gehring was among the three Watson picked to let go. Gehring had been a supervisor until 1988, when an earlier reduction in force returned him to a line position. Watson believed that Gehring had not adjusted well and was reluctant to do the drudge work of ordinary cost accountancy. Gehring believes that his age (52 at the time) rather than his attitude accounts for the decision, but the jury believed Watson's explanation and returned a verdict for Case. Gehring asks us to award him another trial. (The Wausau plant closed in October 1993, but Gehring could recover for wages lost between June 1991 and October 1993 if his age led to the earlier discharge.)

The district judge curtailed discovery from Case's personnel files, and Gehring believes that this unduly hampered his case. Gehring was not trying to show that the reduction in force had a disparate impact on Case's older employees--a theory of age discrimination that is unavailable in this circuit, EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir.1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir.1994)--but instead wanted the files to help him establish that Case gave better treatment to younger employees, buttressing his claim that the reason for his discharge was age. Using this method depends on showing that the other employees selected for comparison are situated similarly to the plaintiff. Troupe v. May Department Stores Co., 20 F.3d 734, 736-38 (7th Cir.1994). After examining the personnel files Gehring wanted to use, the district judge concluded that the other employees' circumstances were not close enough to Gehring's to make comparisons productive. Turning over the files, however, would invade the privacy of the other employees, and the district judge feared that Gehring wanted to use this evidence not for purpose of comparison but to put Case's personnel practices on trial. The judge concluded that the privacy interests, coupled with her determination to keep the trial focused squarely on Gehring's claim, justified limiting counsel's ability to root through the personnel files. The judge followed up with similar evidentiary rulings at trial. District judges have substantial discretion to make such decisions to curtail the expense and intrusiveness of discovery and trial. Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir.1993). The judge, who permitted live testimony (in Gehring's favor) from one of the proposed comparison employees, did not abuse that discretion.

Gehring's other arguments concern the jury instructions. He wanted the judge to walk the jury through the paradigm established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The judge declined, for the very good reason that the Supreme Court has held that this burden-shifting model applies to pretrial proceedings, not to the jury's evaluation of evidence at trial. Once the judge finds that the plaintiff has made the minimum necessary demonstration (the "prima facie case") and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question--the only question the jury need answer--is whether the plaintiff is a victim of intentional discrimination. Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). See also EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.1994); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992); Ramsey v. American Air Filter Co., 772 F.2d 1303, 1312-13 (7th Cir.1985). Gehring also wanted the judge to instruct the jury about one permissible inference: that if it did not believe the employer's explanation for its decisions, it may infer that the employer is trying to cover up age discrimination. This is a correct statement of the law, St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993), but a judge need not deliver instructions describing all valid legal principles. Especially not when the principle in question describes a permissible, but not an obligatory, inference. Many an inference is permissible. Rather than describing each, the judge may and usually should leave the subject to the argument of counsel. United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.1987). Gehring's lawyer asked the jury to draw this inference; neither judge nor defense counsel so much as hinted that any legal obstacle stood in the way. Instructions on the topic were unnecessary.

One of Gehring's arguments gives us pause, however. Not only the lawyers but also the judge repeatedly used the words "determining factor." The special verdict forms called on the jury to decide whether Gehring's age was "a determining factor in the defendant's decision to terminate his employment?" The instruction defining this term reads:

You are instructed that in answering Question No. 1 on the special verdict form, you must decide whether plaintiff has shown by the greater weight of the credible evidence that he would not have been let go had it not been for his age. If your answer to this question is yes, then you have found that plaintiff's age was a determining factor in the termination of his employment and you should answer "yes" to Question No. 1 on the verdict. If you decide that the plaintiff has not shown by the greater weight of the credible evidence that he would have been let go had it not been for his age, then you have found that age was not a determining factor in the termination of his employment and you should answer "no" to Question No. 1 on the verdict.

After deliberating for a while, the jury asked the judge to clarify what it means for age to be "a determining factor ... Is it the only determining factor or one of the determining factor?" [Sic.] Gehring asked the judge to reply that there may be more than one "determining factor" and that it should decide in his favor if age was among them. Instead the judge told the jury:

The question asks about a determining factor. By a determining factor, I mean the plaintiff must prove that he would not have been selected for layoff but for his age.

Gehring...