Messina v. Kroblin Transp. Systems, Inc., 86-1700
Decision Date | 21 May 1990 |
Docket Number | No. 86-1700,86-1700 |
Citation | 903 F.2d 1306 |
Parties | 52 Fair Empl.Prac.Cas. 1739, 53 Empl. Prac. Dec. P 39,930 Michael C. MESSINA, Plaintiff-Appellant, v. KROBLIN TRANSPORTATION SYSTEMS, INC., Defendant-Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Louis W. Bullock of Bullock and Bullock, Tulsa, Okl., for plaintiff-appellant.
Neal Tomlins of Baker, Hoster, McSpadden, Clark & Rasure, Tulsa, Okl., (J. Ronald Petrikin, M. Benjamin Singletary, and Timothy A. Carney of Gable & Gotwals, Tulsa, Okl., on the briefs), for defendant-appellee.
Before LOGAN, BRORBY, and EBEL, Circuit Judges.
Plaintiff Michael Messina appeals from a jury verdict in favor of defendant Kroblin Transportation Systems, Inc. (Kroblin) on his claim that he was unlawfully terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ch. 14, and from a directed verdict for defendant on Messina's pendent state law slander claim. On appeal we consider three issues, whether the district court erred (1) in instructing the jury on Messina's ADEA claim; (2) in directing a verdict for defendant on Messina's slander claim; and (3) in refusing to admit evidence of the conduct of certain defense witnesses. 1 We affirm the district court on all issues.
On Messina's ADEA claim, the district court instructed the jury in accordance with its view of the standards enunciated in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and this circuit's opinion in Smith v. Consolidated Mut. Water Co., 787 F.2d 1441 (10th Cir.1986). The instructions at issue provided:
"In order to prove the essential elements of plaintiff's claim ... the burden is upon plaintiff to establish by a preponderance of evidence in the case the following facts:
First: That the plaintiff was employed by the defendant, and was capable of continuing to perform in a satisfactory manner;
Second: That he was at least forty years of age but less than seventy years of age at the time of his discharge;
Third: That the plaintiff's age was the determinative factor in whether he was to be retained or discharged; and
Fourth: that a younger person replaced him.
Once plaintiff has established through evidence the essential elements of his age discrimination claim ... the burden of proof shifts to the defendant to show some legitimate non-discriminatory reason for the plaintiff's termination. If defendant comes forth with such evidence, the burden shifts back to plaintiff to prove that the business reason proffered by defendant is merely a pretext for discriminating against plaintiff."
I R. tab 83. Messina argues that this instruction incorrectly required him to prove the ultimate question of the trial--whether age was the determinative factor in his discharge--as part of his prima facie case.
This instruction may misstate the evidence a plaintiff must present in order to avoid a directed verdict under McDonnell Douglas, but the presumption and burdens inherent in the McDonnell Douglas formulation drop out of consideration when the case is submitted to the jury on the merits. As the Supreme Court noted in United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 1480-81, 75 L.Ed.2d 403 (1983), the important issue is discrimination vel non not the orderly presentation of evidence.
Other circuits have disapproved jury instructions which delineate the intricacies of McDonnell Douglas because a jury is not well equipped to understand the shifting burdens of such a formulation. The First Circuit recognized the potential for juror confusion and stated:
Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979); see also Hagelthorn v. Kennecott Corp., 710 F.2d 76, 85 (2d Cir.1983) ().
While it is appropriate for courts to use the law developed in the context of Title VII cases in ADEA disputes, McDonnell Douglas guidelines play differently to a jury than they do in a bench trial. The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict, but they are of little relevance to the jury. The district courts, therefore, to avoid potential jury confusion, should prepare instructions that do not rely on technical legal distinctions likely to be understood only by attorneys and judges.
Loeb, 600 F.2d at 1016 (footnote omitted).
Despite our misgivings, we hold that the instruction given by the trial court does not warrant reversal. In Smith, we upheld an instruction not much different from that given here. 787 F.2d at 1442-43. The court's instructions on the age discrimination issue directed the jury's attention to the ultimate question--was age a determinative factor in Messina's discharge. ...
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