Francis H. Dupre v. Fru-Con Engineering

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2064
___________
Francis H. Dupre, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Fru-Con Engineering Inc.,; *
Fru-Con Construction Corp., *
*
Appellees. *
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Submitted: January 13, 1997
Filed: April 24, 1997
___________
Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District Judge.
___________
BOWMAN, Circuit Judge.
Francis H. Dupre brought this age discrimination action against Fru-
Con Engineering Incorporated and Fru-Con Construction Corporation
(collectively Fru-Con) under the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634 (1994), and the Missouri Human Rights Act, Mo. Rev. Stat.
§§ 213.010-213.137 (1994). The case proceeded to trial, the jury returned
a verdict in favor of Fru-
1
The Honorable John B. Jones, United States District Judge
for the District of South Dakota, sitting by designation.
Con, and the District Court2 entered judgment in accordance with the
verdict. Dupre appeals and we affirm.
Dupre began working for Fru-Con Engineering in 1986, at age fifty-
four, as a manager of business development. In May 1987, he was named vice
president of Fru-Con Construction (the parent company of Fru-Con
Engineering) and senior vice president of Fru-Con Engineering. By May
1993, in addition to his senior vice president status with Fru-Con
Engineering, Dupre was one of that corporation’s four division managers.
However, in May 1993, Dan Amsden, then-president of Fru-Con Engineering,
relieved Dupre of his positions as division manager and senior vice
president and offered Dupre a position as a senior project manager.
Shortly thereafter, on June 10, 1993, Amsden terminated Dupre’s employment
with Fru-Con Engineering. Amsden states that his decision was based upon
Dupre’s poor performance as division manager, his inability to develop new
business, the availability of better qualified and more experienced senior
project managers, and the unavailability of a suitable position for Dupre
at Fru-Con Engineering. Dupre contends that the decision was based in
significant part on his age. His evidence in support of this contention
includes the firing of John Linton, the only other division manager over
age sixty, the day before Dupre’s termination. The District Court excluded
the proffered testimony of Hugh Weikart, a former Fru-Con Construction
employee, that the person who was Fru-Con’s director of human resources at
the time of Dupre’s firing had made comments several years earlier
suggesting that the company’s owners would not like a fifty-five-year-old
job candidate because of his age.
2
The Honorable Mary Ann L. Medler, United States Magistrate
Judge for the Eastern District of Missouri, who presided over the
case with the consent of the parties in accordance with 28 U.S.C.
§ 636(c) (1994).
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On appeal, Dupre argues that the District Court erred by (1)
instructing the jury that Linton’s lawsuit had been decided adversely to
him on the merits and that Linton’s discharge could not be considered to
raise an inference of age discrimination; (2) excluding Weikart’s
testimony; and (3) instructing the jury that it could not second guess Fru-
Con’s business decisions or question its means used to achieve a legitimate
goal. Dupre further claims that the cumulative effect of these errors was
to preclude a verdict in his favor.
I.
Dupre contends that the District Court erred in instructing the jury
to limit its use of the testimony of John Linton. Linton, like Dupre, sued
Fru-Con for age discrimination. Linton’s case, however, did not survive
Fru-Con’s motion for summary judgment because the district court found that
Linton had failed to establish a prima facie case of age discrimination.
Specifically, that court determined that, because Linton’s duties were
assumed by an existing Fru-Con employee, Fru-Con had not attempted to
replace Linton with a younger person. See Linton v. Fru-Con Constr. Corp.,
No. 4:94CV1635, Memorandum and Order at 12 (E.D. Mo. Dec. 8, 1995) (order
granting summary judgment). Dupre, on the other hand, was replaced. Wary
of the potentially prejudicial effect of Linton’s testimony in this case,
Fru-Con filed a motion in limine to exclude testimony of Fru-Con’s alleged
discrimination towards Linton. The District Court granted in part and
denied in part Fru-Con’s motion. In addition, the court, in Instruction
7, instructed the jury as follows:
You have heard evidence from John Linton, a former
employee of defendant Fru-Con Engineering, Inc. (“FCE”),
regarding the fact of his termination from FCE and that he,
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like the plaintiff, filed a lawsuit alleging he was
discriminated against because of his age. You are
instructed that Mr. Linton’s lawsuit has been decided on
the merits resulting in a final judgment in favor of the
defendants. The fact that Mr. Linton was discharged cannot
be considered by you to raise an inference that the
plaintiff was discriminated against because of his age.
Dupre argues that this instruction is prejudicial in that it informs the
jury that Linton’s suit was decided on the merits and in that it instructs
the jury that Linton’s suit cannot be used to raise an inference of age
discrimination.
Fru-Con argues that Dupre did not preserve for appeal its arguments
concerning Instruction 7. Federal Rule of Civil Procedure 51 provides that
“[n]o party may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.” “[T]he purpose of Rule 51 is to compel
litigants to afford the trial court an opportunity to cure [a] defective
instruction and to prevent litigants from ensuring a new trial in the event
of an adverse verdict by covertly relying on the error.” Missouri Pac.
R.R. v. Star City Gravel Co., 592 F.2d 455, 459 (8th Cir. 1979), quoted in
Barton v. Columbia Mut. Cas. Ins. Co., 930 F.2d 1337, 1341 (8th Cir. 1991).
Rule 51 requires a litigant to state distinctly the specific objections to
a jury instruction before the jury retires; otherwise, a litigant waives
the right on appeal to object to a jury instruction on those grounds, see
Commercial Property Invs., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639,
643 (8th Cir. 1995), and “we will reverse only if the instruction amounts
to plain error,” see Rolscreen Co. v. Pella Prods., 64 F.3d 1202, 1211 (8th
Cir. 1995).
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Dupre’s arguments concerning Instruction 7 were not properly
preserved. The District Court conducted extensive discussions off the
record in chambers concerning the jury instructions. After these
discussions, the judge and the attorneys returned to the courtroom, where
the court informed the parties that it would go through the instructions
and “if we come to [an instruction] that anybody has an objection about,
. . . you can certainly make your record on that objection.” Trial Tr.
vol. IV at 133. When Instruction 7 was read, Dupre’s counsel made a
“general objection” and stated, “[T]his instruction should not be given to
the jury at all.” Id. at 134. This general objection was insufficient to
preserve the specific objections to the instruction that Dupre now seeks
to raise. See Denniston v. Burlington N., Inc., 726 F.2d 391, 393 (8th
Cir. 1984) (holding that general objection did not properly preserve the
particularized grounds for objection raised on appeal).
Dupre contends that his arguments regarding Instruction 7 were
properly preserved through his unrecorded objection made in chambers,
before the judge and lawyers returned to the courtroom to make the record
on the objections. Dupre argues that Rule 51 does not require that
objections and the grounds therefor be on the record. To support this
position, Dupre cites Niehus v. Liberio, 973 F.2d 526, 529-30 (7th Cir.
1992). The court in Niehus determined that the defendants had sufficiently
preserved an objection for appellate review by properly objecting to the
challenged instruction in an unrecorded instructions conference conducted
in chambers. Upon returning to the courtroom, the trial court instructed
the lawyers to make their objections on the record, but the court did not
tell the lawyers to state the grounds for their objections on the record.
Accordingly, the Seventh Circuit held that the defense counsel’s
uncontradicted affidavit, stating that a sufficient record was made in
chambers, satisfied
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Rule 51, which does not explicitly provide that objections be made on the
record. Dupre’s counsel similarly filed with our Court an affidavit
stating that a sufficiently particularized objection was made in chambers,
albeit off the record.
Niehus is of little help to Dupre. Initially, we note that Niehus
is not the law in this Circuit. Our law on this subject is crystal clear:
to preserve an argument concerning a jury instruction for appellate review,
a party must state distinctly the matter objected to and the grounds for
the objection on the record. See, e.g., Campbell v. Vinjamuri, 19 F.3d
1274, 1277 (8th Cir. 1994) (stating that “[s]pecific objection must be made
on the record to preserve the error for appeal”); Farmland Indus. v.
Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1408 (8th Cir. 1989)
(holding that only a plain error analysis is necessary where party “never
objected on the record to the court’s failure” to give the requested
instructions); Fulton v. Chicago, Rock Island and Pac. R.R., 481 F.2d 326,
339 (8th Cir.) (holding that compliance with Rule 51 “requires that there
appear somewhere in the record an objection specifically delineating the
objection and the grounds therefor”), cert. denied, 414 U.S. 1040 (1973).3
Moreover, Niehus is readily distinguishable. In Niehus, the trial court
instructed the attorneys “to make [your] objections on the record.” 973
F.2d
3
By filing an affidavit with this court detailing events
which occurred off the record, Dupre’s counsel is seeking to
modify the content of the record to disclose what counsel avers
actually transpired in the District Court. To accomplish this,
Dupre should have filed a motion with that court pursuant to
Federal Rule of Appellate Procedure 10(e). See Ratchford v.
Manchester Life & Cas. Management Corp., 679 F.2d 741, 746 n.9
(8th Cir. 1982) (agreeing with appellees’ position that appellant
should have filed a motion under Federal Rule of Appellate
Procedure 10(e) to modify record to reflect that an objection to
the challenged instruction was made at an off-the-record
instruction conference). Accordingly, Fru-Con’s motion to strike
the affidavit of Dupre’s counsel is granted.
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at 529. In the present case, the trial court instructed the attorneys to
“make your record on [your] objection.” Trial Tr. vol. IV at 133.
Pursuant to Rule 51, making “your record” entails not only stating the
objection, but also stating the specific grounds for that objection. An
examination of the on-the-record discussions concerning the remaining jury
instructions shows that neither counsel merely rested on indefinite
objections without stating on the record the specific grounds therefor.
Id. at 135-141.4 When given the opportunity, Dupre’s counsel did not make
his record regarding Instruction 7; therefore, the arguments he raises on
appeal are waived. See Arthur Young & Co. v. Reves, 937 F.2d 1310, 1333
(8th Cir. 1991) (concluding that party did not make its record when given
the opportunity during on-the-record proceedings conducted after off-the-
record discussion between law clerks and counsel concerning proffered
instructions), cert. denied sub nom. Ernst & Young v. Reves, 502 U.S. 1092
(1992), and aff’d sub nom. Reves v. Ernst & Young, 507 U.S. 170 (1993).
Under plain error review we reverse “only if the error prejudices the
substantial rights of a party and would result in a miscarriage of justice
if left uncorrected.” Rush v. Smith, 56 F.3d 918, 922 (8th Cir.) (en
banc), cert. denied, 116 S. Ct. 409 (1995). Dupre does not argue, nor do
we hold, that the giving of Instruction 7 was plain error.
II.
Dupre also objects to jury Instruction 10, which provides:
4
In fact, in addressing Fru-Con’s objection to Instruction
9, Dupre’s counsel made it a point “to clarify [his position] for
the record.” Trial Tr. vol. IV at 136.
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In determining whether defendants’ legitimate non-
discriminatory explanation for their decision to discharge
the plaintiff is pretextual, you may not second guess
defendants’ business decision nor question the means they
used to achieve a legitimate goal. Further, under the law,
defendants have the right to terminate an employee’s
services for a good reason, a bad reason, or for no reason
at all, as long as their reason for discharging the
plaintiff is not the plaintiff’s age.
Dupre takes issue with the phrase “defendants’ legitimate non-
discriminatory explanation.” Dupre argues that Fru-Con had only a
proffered non-discriminatory explanation for its discharge decision and
that the conclusory language in Instruction 10 thus misstates the law and
prejudices his case.
Once more, Dupre has failed to preserve his objection to an
instruction for appellate review . When asked to make his record
concerning jury Instruction 10, Dupre’s counsel stated:
Your Honor, the Plaintiff objects to Instruction Number 10
for the same reason that we objected to Instruction Number
8, and that is, that taken in conjunction, the giving of
Instructions 8 and 10 constitutes double instructing the
jury on not examining the, -- it’s double instructing the
jury on the employer’s proffered reason for having
discharged the Plaintiff.
Trial Tr. vol. IV at 138. The record does not show that Dupre ever argued
to the trial court that Instruction 10 was prejudicial due to the absence
of words such as “stated” or “proffered,” which would serve to qualify
“defendant’s legitimate non-discriminatory explanation.” As a result, his
objection on this ground has been waived, and we examine only for plain
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error. See Rolscreen, 64 F.3d at 1211.5 Our review does not disclose such
an error.
5
Even if the alleged error had been preserved for appellate
review, we would hold that any ambiguity created by the absence
of the desired prefatory language was adequately cleared up
within Instruction 10 itself. Though hardly a model of clarity,
the instruction when read in its entirety is an accurate
statement of the law. See Slathar v. Sather Trucking Corp., 78
F.3d 415, 418 (8th Cir.) (stating that jury instructions must
adequately and fairly present the issues to the jury and that
“[a]n employer has the right to make business decisions, so long
as they are made in a nondiscriminatory manner”), cert. denied,
117 S. Ct. 179 (1996). “‘Accordingly, we will not find error in
instructions simply because they are technically imperfect or are
not a model of clarity.’” Ryther v. KARE 11, No. 94-3622, slip
op. at 28 (8th Cir. Mar. 6, 1997) (en banc) (quoting Hastings v.
Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992)).
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Dupre also argues that he was prejudiced by the duplicative nature
of Instructions 8 and 10. In this instance, the alleged error was
preserved for appellate review. “[W]hen reviewing a claim of instructional
error, we consider the instructions in their entirety and determine
whether, when read as a whole, the charge fairly and adequately submits the
issues to the jury.” Laubach v. Otis Elevator Co., 37 F.3d 427, 429 (8th
Cir. 1994). Repetitious instructions that place undue emphasis on a
certain aspect of a party’s case so as to prejudice the jury require
reversal. See Dobson v. Bacon Transp. Co., 607 F.2d 805, 807-08 (8th Cir.
1979). Jury Instruction 8 provides:
Plaintiff’s claim is based upon two statutes, the federal
Age Discrimination in Employment Act and the Missouri state
Human Rights Act. Both laws prohibit employers from
intentionally terminating an employee because of the
employee’s age. These laws are intended to prohibit
employers from intentionally discriminating against persons
who are 40 years of age or older on the basis of their age.
However, these laws do not require that an employer
retain those employees whom the Court or the jury consider
most qualified for the job. These laws require only that
the employer’s decision not be based on age. When an
employer decides to discharge one employee and not to
discharge another and its determination is reasonably
attributable to an honest and non-discriminatory, though
partially subjective, evaluation of the employee’s
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qualifications, no inference of a violation of the laws can
be drawn.
Instruction 8 describes the purposes and the reach of the Age
Discrimination in Employment Act and the Missouri Human Rights Act, while
Instruction 10 more directly deals with pretext. Taken as a whole, the
instructions fairly and adequately submitted the issues to the jury. See
Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir.) (standard of
review), cert. denied, 117 S. Ct. 179 (1996). We hold that the
instructions were not prejudicial and, though partially overlapping, did
not unduly emphasize Fru-Con’s “legitimate non-discriminatory explanation.”
See Tribble v. Westinghouse Elec. Corp., 669 F.2d 1193, 1198 (8th Cir.
1982) (holding that challenged instructions in age discrimination suit were
not prejudicial or needlessly repetitive where each instruction had a
distinct objective, the allegedly repetitious instructions appeared only
twice and not consecutively, and each instruction correctly stated the
law), cert. denied, 460 U.S. 1080 (1983).
III.
Dupre next argues that the District Court erred in excluding from
evidence Hugh Weikart’s deposition testimony from a previous lawsuit. This
testimony states that James Coleman, Jr., Fru-Con’s human resources
director at the time of Dupre’s firing, previously had made remarks
questioning whether Fru-Con’s owners would want a fifty-five-year-old job
candidate. Dupre, however, has not taken appropriate steps to preserve
this issue for appeal.
Federal Rule of Evidence 103(a) provides that “[e]rror may not be
predicated upon a ruling which . . . excludes evidence unless a substantial
right of the party is affected, and . . . (2) . . . the
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substance of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked.” The record
contains neither an offer of proof nor a context within which questions
regarding Weikart’s testimony were asked. In fact, Dupre can point to only
a District Court minute entry granting Fru-Con’s motion in limine to
exclude Weikart’s testimony for support in the record that the court was
even aware of this testimony.6
Dupre argues that an offer of proof was unnecessary, and that in any
event an offer of proof was made. Dupre contends that because the District
Court unconditionally granted Fru-Con’s motion in limine to exclude
Weikart’s testimony, this issue is preserved for appeal even absent an
offer of proof. We disagree. “One of the most fundamental principles in
the law of evidence is that in order to challenge a trial court’s exclusion
of evidence, an attorney must preserve the issue for appeal by making an
offer of proof.” Holst v. Countryside Enters., Inc., 14 F.3d 1319, 1323
(8th Cir. 1994) (noting that, even if pretrial motion in limine was
intended to exclude certain evidence at trial, without an offer of proof,
argument concerning exclusion of the evidence was not preserved for
appeal). Dupre claims, however, that an offer of proof was made, but
unbeknownst to him, it was unrecorded. We will only consider an offer of
proof contained in the record. See Potts v. Benjamin, 882 F.2d 1320, 1323
(8th Cir. 1989) (determining that it was incumbent upon party challenging
exclusion of evidence to
6
Absent from the record is anything from which we can
determine the reasons for the court’s ruling excluding Weikart’s
testimony. Dupre claims that “[t]he district court ruled that
the proffered evidence was too remote in time to have probative
value.” Appellant’s Br. at 6. To support this assertion,
however, Dupre cites “Tr. at,” with no page reference. Dupre
needed to take appropriate steps to make this ruling part of the
record. See Fed. R. App. P. 10. Without a record of the trial
court’s reasons for the challenged evidentiary ruling, a
meaningful review of that ruling is extremely difficult.
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place such evidence into the trial record by offer of proof); see also
United States v. Clark, 918 F.2d 843, 847 (9th Cir. 1990) (holding that,
despite the contention that an offer of proof was made off the record,
issue regarding exclusion of evidence was not preserved for appellate
review where no offer of proof appeared in the record), overruled on other
grounds by United States v. Keys, 95 F.3d 874, 878 (9th Cir. 1996) (en
banc), petition for cert. filed, 65 U.S.L.W. 3507 (U.S. Jan. 9, 1997) (No.
96-1089). Absent a proper offer of proof, we “review under the plain error
standard and reverse only if there has been a miscarriage of justice.”
Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357, 1362 (8th Cir. 1990).
The plain error exception “must be confined to the most compelling cases,
especially in civil, as opposed to criminal, litigation.” Johnson v.
Ashby, 808 F.2d 676, 679 n.3 (8th Cir. 1987). This is not such a case.
Even if this issue had been properly presented to the District Court
and preserved for appeal, we would be unable to say that the District Court
abused its discretion in refusing to admit Weikart’s testimony. See
Slathar, 78 F.3d at 419 (standard of review). The temporal remoteness of
the remarks in question (four years before Dupre’s firing) and the other
circumstances of the case support the exclusion of Weikart’s testimony
under either Federal Rule of Evidence 402 (relevance) or Federal Rule of
Evidence 403 (probative value substantially outweighed by danger of unfair
prejudice). See Slathar, 78 F.3d at 419-20 (determining that court did not
abuse its discretion in excluding testimony of former human resources
manager where she did not participate in the decision to terminate
plaintiff, her comments occurred after the termination decision was made,
and her comments would be quite prejudicial but have no direct bearing on
an issue to be decided).
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IV.
Finally, Dupre argues that the cumulative effect of the
aforementioned errors was to preclude a verdict on his behalf. Because we
have determined that these alleged errors are either unpreserved or are
otherwise without merit, this argument must fail.
V.
The judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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