Ron Hosse v. Sumner Cty. Bd. of Educ.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0337n.06
No. 18-5832
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
RON HOSSE, ) Jul 03, 2019
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
SUMNER COUNTY BOARD OF
) TENNESSEE
EDUCATION,
)
Defendant-Appellee.
_________________________________/
Before: GUY, THAPAR, and NALBANDIAN, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Ron Hosse alleged that he was transferred from
his long-held position as High School Instructional Coordinator to a classroom teaching position
because of his age in violation of the Age Discrimination in Employment Act. After a jury found
in favor of the Sumner County Board of Education, Hosse moved for a new trial predicated entirely
on the district court’s exclusion of testimony from Dr. Frank Cardwell regarding his own allegedly
age-based transfer. Finding that the district court did not abuse its discretion in excluding the
proposed “me too” evidence or denying the motion for a new trial, we affirm.
I.
Ron Hosse was employed in several administrative positions with Sumner County Board
of Education from August 1986 until he retired, at age 64, in June 2012. Hosse worked as a
vocational education coordinator and supervisor of vocational education until 2004. He then
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served as the High School Instructional Coordinator reporting to the Assistant Director of Schools
until his retirement in 2012. Hosse claimed he was discriminated against after Dr. Del Phillips, III
became the Director of Schools in 2011 and hired Dr. Jennifer Brown as Assistant Director of
Schools to replace Hosse’s retiring supervisor in June 2011.
Dr. Brown directly supervised Hosse during the 2011-2012 school year, and, by all
accounts, it was Brown who recommended that Hosse be transferred out of her department for the
next school year. Phillips accepted Brown’s recommendation, and Hosse was notified in May
2012 that he was being reassigned to an open position teaching 7th-grade science with an
associated loss in pay. Hosse was qualified and endorsed to teach middle school science, although
he never had. When he inquired about his options with human resources, he claimed to have been
discouraged from applying for any open principal or assistant principal positions because Brown
was on the selection committee. Hosse felt he had no choice but to take early retirement, which
he did.
Hosse believed his transfer was age-based because he was the oldest of the instructional
coordinators at the time, and three other instructional coordinators retired after he did. Defendant
countered with evidence that Hosse was transferred because his performance was deficient in
several important respects and his attitude toward Brown had been disrespectful and insubordinate.
Defendant also disputed Hosse’s contention that he was replaced by a 40-year-old, offering
evidence that his position was filled by the transfer of 59-year-old Glee Moore. The jury heard
from a dozen witnesses over three days, but this appeal concerns only the exclusion of proposed
“me too” testimony from Dr. Frank Cardwell. That testimony was at issue before, during, and
after trial.
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A pretrial motion to exclude evidence of Cardwell’s “me too” evidence was granted
without opposition from plaintiff. (Page ID # 1188, 1081-82.) During trial, the district court first
ruled sua sponte that defense counsel’s questioning of Hosse had “opened the door” to the “me
too” evidence, but the judge was persuaded otherwise when asked to reconsider. (RE 174, 178.)
The order granting reconsideration explained that the judge was convinced the questions had not
“opened the door” because they were aimed at establishing that Hosse had not alleged a pattern
and practice claim—which he had not. Review of the record supports that finding, and Hosse has
not demonstrated that it was clearly erroneous.
Before excluding the evidence, the district court also considered and rejected Hosse’s
contention that the evidence was admissible under Federal Rules of Evidence 401 and 403. Most
notably, the judge found that “unlike Plaintiff, Mr. Cardwell was a high school principal, he did
not work in the instructional department, he did not report to Dr. Jennifer Brown, and Dr. Brown
was not involved in the decision to transfer Mr. Cardwell.” In addition, “the decision to transfer
Mr. Cardwell took place two years after Plaintiff learned of his transfer.” Cardwell testified
favorably about working with Hosse, but Cardwell was not permitted to testify about his own claim
that he was transferred because of his age.
After the jury found against him, Hosse moved for a new trial pursuant to Federal Rule of
Civil Procedure 59(a)(1)(A). In support, Cardwell provided an affidavit that described his
employment history in another school district—including teaching, coaching, and serving as
principal—and stated that he was employed by Sumner County Schools as Principal of Beech High
School from 1999 until he retired in 2014. Cardwell stated that he was told by Dr. Phillips that he
would be transferred to teach P.E. at a different high school. Cardwell, who was 74 years of age
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at the time, alleged that he was transferred because of his age “in a successful attempt to force
[him] to retire rather than be moved to a teaching position.”
Defendant’s response to the motion relied, in part, on a declaration from Phillips. In it,
Phillips stated that he had directly supervised Cardwell for three school years and had found his
performance generally unsatisfactory, but several problems during the 2013-2014 school year
prompted the transfer decision. Phillips confirmed that he personally assessed Cardwell’s
performance but not Hosse’s; indicated that Brown was not involved in Cardwell’s transfer;
contrasted Cardwell’s duties as principal of a high school from those of Hosse’s as an instructional
coordinator in the central office; and emphasized that there was a two-year gap between the
decisions to transfer Cardwell and Hosse.
With the benefit of the further proffers, the district court revisited the admissibility of the
proposed “me too” evidence, and again found it was not relevant; that any probative value was
substantially outweighed by the danger of unfair prejudice; and, finally, that plaintiff had not
showed that exclusion of the evidence “affected his substantial rights or that justice otherwise
requires a new trial.” (RE 194.) This appeal followed.
II.
Both the district court’s evidentiary rulings and the denial of the motion for a new trial
under Rule 59(a)(1)(A) are reviewed for abuse of discretion. See CFE Racing Prods., Inc. v. BMF
Wheels, Inc., 793 F.3d 571, 584 (6th Cir. 2015); Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d
398, 405 (6th Cir. 2006). A district court abuses its discretion when it “relies on clearly erroneous
findings of fact, improperly applies the law, or uses an erroneous legal standard.” Mike’s Train
House, 472 F.3d at 405. “An erroneous evidentiary ruling amounts to reversible error, justifying
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a new trial, only if it was not harmless; that is, only if it affected the outcome of the trial.” Cummins
v. BIC USA, Inc., 727 F.3d 506, 510 (6th Cir. 2013).
“The question whether evidence of discrimination by other supervisors is relevant in an
individual ADEA case is fact based and depends on many factors, including how closely related
the evidence is to the plaintiff’s circumstances and theory of the case.” Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 388 (2008). A district court abuses its discretion if it applies a per
se rule excluding such evidence, as it is “neither per se admissible nor per se inadmissible.” Id. at
381; see also id. at 387. The factors to consider regarding the “other acts” or “me too” evidence
include not only whether the same actors were involved in each decision, but also factors “such as
temporal and geographical proximity, whether the various decisionmakers knew of the other
decisions, whether the employees were similarly situated in relevant respects, or the nature of each
employee’s allegations of [discrimination].” Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012).
Here, the district court considered these factors, and, unlike in Griffin, it is clear that reliance was
not placed on a single factor.
Hosse contends that Cardwell’s testimony was relevant because they were both decades-
long administrative employees who were transferred to teaching positions to force them into
retirement. The district court recognized the similarity in theory generally, but found that closer
examination of the circumstances revealed significant differences that meant the evidence was not
relevant. It was not clearly erroneous to find that there were significant differences between
Cardwell’s proposed testimony and Hosse’s situation: they had different supervisors, Brown was
not involved in Cardwell’s transfer, and although both were transferred to Portland, Tennessee,
there was a significant two-year gap between the transfer decisions. Further, the circumstances
also differed because there were notable differences in the administrative jobs that each held. In
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particular, “Plaintiff worked in the Instructional Department located in Defendant’s Central Office
in Gallatin, Tennessee, while Cardwell was a high school principal at Beech High School in
Hendersonville, Tennessee.” And, as described by Phillips, their job duties were not similar. The
district court concluded, in short, that “[b]ecause the jobs Plaintiff and Cardwell held were
materially different, combined with their different supervisors and the two-year gap between their
transfers, Cardwell’s proposed testimony is not relevant to determining whether Plaintiff was
transferred because of his age.” Hosse disagrees, but he has not shown that the district court abused
its discretion in any way. See Sprint/United Mgmt., 552 U.S. at 387 (“With respect to evidentiary
questions in general and Rule 403 in particular, a district court virtually always is in the better
position to assess the admissibility of the evidence in the context of the particular case before it.”).
The district court did not abuse its discretion in excluding the evidence or denying the motion for
a new trial.
AFFIRMED.