Smith v. Longmont United Hosp.

• Decision Date: 29 November 1993
• Citation: 946 F.2d 901
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 1224 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 901

946 F.2d 901

57 Fair Empl.Prac.Cas. (BNA) 1224

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Janis SMITH, Plaintiff-Appellant, v. LONGMONT UNITED HOSPITAL, Defendant-Appellee.

No. 90-1357.

United States Court of Appeals, Tenth Circuit.

Oct. 11, 1991.

Before STEPHEN H. ANDERSON, BARRETT and TACHA, Circuit Judges.

ORDER AND JUDGMENT ^*

TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

In this Age Discrimination in Employment Act (ADEA) action, 29 U.S.C. §§ 621-34, plaintiff appeals from the district court's denial of her motion for a new trial, asserted following a jury verdict in favor of defendant. This court reviews a district court's decision on a new trial motion under an abuse of discretion standard. See Patty Precision Prods. Co. v. Brown & Sharpe Mfg. Co., 846 F.2d 1247, 1251 (10th Cir.1988). After consideration of plaintiff's appellate arguments, we determine that the district court did not abuse its discretion in denying the motion for new trial.

Plaintiff, who was born in 1925, began working for defendant in 1970 as a chemist in defendant's pathology lab. In 1972, defendant promoted plaintiff to chief technologist and, in 1975, plaintiff assumed the newly created position of administrative technologist. As administrative technologist, plaintiff supervised the daily operation and management of the pathology lab. Plaintiff received satisfactory performance evaluations.

In 1986, defendant eliminated the position of administrative technologist and refused to hire plaintiff for any other position in the pathology lab. Plaintiff asserted that defendant unlawfully terminated her employment on the basis of plaintiff's age. Defendant asserted that plaintiff's position as administrative technologist was eliminated as a cost-cutting measure, following an efficiency study of the hospital conducted by an independent consultant. Defendant further asserted that the consultant recommended plaintiff's duties as administrative technologist be consolidated with the duties of the chief technologist in order to enhance the hospital's efficiency and save money. Defendant followed the consultant's recommendation to consolidate these positions, appointing the younger chief technologist, rather than plaintiff, to fill the newly consolidated position because plaintiff had failed to maintain her practical skills as a lab technician, skills which would be required by the new position, during the eleven years plaintiff had held her administrative position. Plaintiff asserted defendant's claims were only a pretext for terminating her employment on the basis of her age.

On appeal, plaintiff asserts five issues challenging the district court's denial of her motion for a new trial. Plaintiff's first three arguments challenge evidentiary rulings: 1) the trial court erred in denying plaintiff's motion in limine through which plaintiff sought to exclude any reference to the employee at will doctrine; 2) the trial court erred in restricting the testimony of plaintiff's expert witness; and 3) the trial court erred in allowing into evidence a defense exhibit which defendant failed to include in the pretrial order. This court will disturb the trial court's evidentiary decisions only upon a showing of an abuse of discretion. See Denison v. Swaco Geolograph Co., No. 90-6021, slip op. at 16 (10th Cir. Aug. 16, 1991) (decision to admit exhibit not listed in pretrial order); United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988) (decision to admit or exclude evidence); Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir.1987) (decision to admit or exclude expert's testimony). Review of the record fails to indicate that the district court abused its discretion concerning these evidentiary matters.

Lastly, plaintiff challenges the district court's charge to the jury. Plaintiff first argues that the district court erred in failing to instruct the jury using plaintiff's proposed jury instruction concerning the economic savings derived from discharging older employees: "Economic savings derived from discharging older employees cannot serve as a legitimate justification under the [ADEA] for an employment selection criteria." Although plaintiff asserts that evidence adduced at trial supported giving this instruction, plaintiff has failed to provide us with a sufficient record to allow us to determine whether the trial court should have given such an instruction. Cf. Gelof v. Papineau, 648 F.Supp. 912, 921 (D.Del.1986) (employer...