UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
STEVEN P. JACKSON,
Plaintiff - Appellant,
v. No. 05-1100 (Colorado) NTMEDIA, LLC., a Delaware (D. Ct. No. 02-CV-1259-PSF-BNB) corporation, dba Westword,
Defendant - Appellee.
ORDER Filed April 24, 2007
Before O’BRIEN, EBEL and TYMKOVICH, Circuit Judges.
This matter is before the court, sua sponte, to recall the mandate issued originally
on August 23, 2006 and to issue an amended decision. The amended Order & Judgment
is reissued nunc pro tunc to August 1, 2006. A copy of the amended decision is attached
to this order, and shall replace the previous Order & Judgment. The mandate shall reissue
forthwith.
Entered for the Court
ELISABETH A. SHUMAKER Clerk of Court F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 1, 2006 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
STEV EN P. JA CK SO N ,
v. No. 05-1100 (Colorado) NTM EDIA, LLC., a D elaw are (D.Ct. No. 02-cv-1259-PSF-BNB) corporation, dba W estword,
Defendant - Appellee. ____________________________
OR D ER AND JUDGM ENT *
Before O’BRIEN, EBEL, and TYM KOVICH, Circuit Judges.
In September 2001, Steve Jackson’s employment with W estw ord, a w eekly
newspaper published in Denver, Colorado, was terminated due to a reduction in
force (RIF). He filed an age discrimination claim against his employer, NTM edia
(NT), W estword’s corporate owner. Prior to trial, the district court granted a
motion in limine to exclude one of Jackson’s witnesses, a former editor at NT’s
Phoenix, Arizona, publication, concluding the testimony was irrelevant or, in the
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. alternative, any relevance was outweighed by its possible prejudicial effect or its
potential to confuse the jury. At the close of Jackson’s evidence at trial, the court
granted NT’s M otion for Judgment as a M atter of Law pursuant to Rule 50(a) of
the Federal Rules of Criminal Procedure. Specifically, it ruled Jackson failed to
present sufficient evidence to support a conclusion that age was a determinative
factor in his termination. On appeal, Jackson claims the district court erred in
excluding his most important witness and in removing his claims from the jury’s
consideration. W e exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
I. Background
Jackson began working for NT’s W estword in 1993. During his tenure he
was supervised by Patricia Calhoun, founder of W estw ord. 1 W hile it is
undisputed Jackson was an accomplished writer, he often failed to meet deadlines.
On September 27, 2001, Calhoun and Andy Van de Voorde (corporate executive
associate editor) met with Jackson to inform him that his position was being
eliminated due to a company-wide downsizing. At that time, Jackson was forty-
six years old and the oldest full-time feature writer at W estword. 2 No reason was
given for his selection as part of the RIF at that time, nor did he ask for one. H e
1 Calhoun founded Westword in 1977 and in 1983, sold it to NT while she remained on as an editor. 2 The feature writers who could have been selected from the Westword staff for inclusion in the RIF and their corresponding ages were: S.J. (age 46), A.P. (age 45), S.S. (age 41), E.D. (part-time) (age 40), H.F. (age 39), D.H. (age 30), J.H. (age 29), T.W. (age 28) and J.J. (age 26).
-2- was not offered a transfer or other accommodation as an alternative to being laid
off.
At the time of Jackson’s termination, NT owned thirteen new spapers
nationally, having branched out from its original Phoenix-based operations. N T
was founded by M ike Lacey, head of the editorial staff and based in the Phoenix
publication offices, and Jim Larkin, head of the business operations. Next in
NT’s editorial corporate hierarchy were Christine Brennan (executive managing
editor) and Andy Van de Voorde, both based in W estword’s Denver office.
Prior to the RIF, NT had made several economic adjustments to address its
depressed revenues, such as budget cuts and a wage freeze in the spring of 2001.
Some time shortly before mid-September 2001, NT determined it would reduce
the number of feature stories in its new spapers from two to one per issue. As a
result, fewer feature writers were necessary. Lacey designated the task of
eliminating unnecessary feature writer positions to Brennan, who calculated the
number of positions to be eliminated at each of NT’s papers due to the changed
format. Brennan then notified each of the local editors the number of feature
writers to be reduced from the staff.
On September 21, 2001, Calhoun attended a conference at which Lacey was
a scheduled speaker. W hile there, Lacey told Calhoun that there might be layoffs
in D enver and instructed her to contact Brennan when she returned to Denver. A t
trial, Calhoun testified she did not speak with Lacey regarding the downsizing
-3- further. Rather, on September 24, she spoke with Brennan who informed her
W estword must eliminate two positions. Calhoun testified she alone determined
Jackson and twenty-eight year old T.W . would be laid off. 3 Thereafter, Brennan
told Calhoun she needed to further reduce staff, resulting in Calhoun’s decision to
eliminate the part-time feature writing position of E.D. (age 40) while he
continued in his part-time position of sports writer.
Almost immediately after Calhoun terminated T.W .’s employment, the
editor at NT’s Kansas publication asked T.W . if he would like to fill an open
position there. T.W . accepted. Calhoun had no knowledge of the offer at the
time she determined W itcher w ould be included in the RIF.
In December 2001, Brennan informed Calhoun an additional position
needed to be eliminated. In response, Calhoun terminated full-time feature
writer, J.H., (age 29). J.H. had formerly worked at NT’s Phoenix paper but in
April 2001, had requested a transfer to W estw ord to fill an open position.
Because J.H. agreed to finish some stories in Phoenix, he did not actually begin
working in the Denver offices until August 2001 and had not submitted his first
feature story to W estword at the time of the first RIF.
Jackson filed suit against NT alleging age discrimination on July 1, 2002,
3 At trial, this testimony was challenged with an affidavit Calhoun submitted earlier in the litigation indicating the decisions regarding the personnel to be laid off were made by Calhoun, Brennan and Lacey. Jackson alleges this inconsistency raises a question of fact regarding who actually made the decision to fire him and consequently, evidence of corporate behavior at any of NT’s publications is relevant to his claims.
-4- after exhausting his administrative remedies with the Equal Opportunity
Employment Commission. On M arch 3, 2003, NT filed a motion for summary
judgment. The district court denied the motion on October 21, 2003. Prior to
trial, Jackson intended to offer evidence of corporate age bias through the
testimony of Patty Epler, an editor of NT’s Phoenix newspaper from July 1997 to
April 2004. NT filed a motion in limine to prohibit Epler’s testimony. The
motion was denied without prejudice and the parties scheduled Epler’s deposition.
On the first day of the jury trial, January 24, 2005, NT filed a supplemental
motion in limine to prohibit Epler’s testimony based on the information obtained
at her deposition. The district court conditionally granted the motion, ruling the
testimony lacked a connection to the decisions regarding Jackson and, in the
alternative, held its potential for unfair prejudice outw eighed its probative value.
F ED . R. E VID . 403. See Heno v. Sprint/United M gmt. Co., 208 F.3d 847, 857 (10th
Cir. 2000) (discussing exclusion of evidence under Rule 403 in the employment
discrimination context). However, the court ordered Jackson to submit an offer of
proof in writing. Jackson did so the next day and orally moved for
reconsideration. The district court denied his request. On January 27, 2005,
Jackson completed his presentation of evidence. NT moved for judgement as a
matter of law pursuant to Rule 50(a). The district court granted NT’s motion and
this timely appeal followed.
-5- II. Discussion
On appeal, Jackson claims the trial court improperly made credibility
determinations and weighed the evidence in NT’s favor when granting the motion
for judgment as a matter of law . Jackson also maintains the trial court erred in
prohibiting the testimony of his pivotal w itness, Patty Epler, who was allegedly
able to establish a corporate-wide age bias affecting the 2001 RIF decisions. W e
address each of his claims in turn.
A. Judgment As a M atter of Law
W e review de novo the grant of a motion for judgment as a matter of law.
Reeves v. Sanderson Plumbing, 530 U.S. 137, 150 (1997). W e review all of the
evidence in the record, drawing all reasonable inferences in favor of the
nonmoving party, without making credibility determinations or weighing the
evidence. Id. “Thus, although the court should review the record as a whole, it
must disregard all evidence favorable to the moving party that the jury is not
required to believe.” Id. In other words, we will give credence to "evidence
supporting the moving party that is uncontradicted and unimpeached, at least to
the extent that that evidence comes from disinterested witnesses.” Id. (quotation
omitted).
“W hether judgment as a matter of law is appropriate in any particular case
will depend on a number of factors.” Id. at 148. “Those include the strength of
the plaintiff's prima facie case, the probative value of the proof that the
-6- employer’s explanation is false, and any other evidence that supports the
employer's case and that properly may be considered on a motion for judgment as
a matter of law.” Id. at 148-49. However, once the case is before the jury,
whether a prima facie case of age discrimination was actually made is irrelevant
except to the extent its strength bears upon the ultimate question: “whether
plaintiff has produced enough [credible] evidence to persuade the trier of fact that
defendant acted with discriminatory intent and that such intent caused plaintiff’s
injury.” Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 528 (10th Cir. 2000).
A prima facie case in an age discrimination suit involving a RIF requires
the plaintiff to show: (1) he was within the protected age group, (2) he was doing
satisfactory work, (3) he was discharged from his position despite the adequacy of
his work, and (4) he was treated less favorably than younger employees during
the RIF. Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). It
is undisputed that Jackson was in the protected age group (forty or older) and was
qualified for his job. The dispute centers on whether Jackson presented sufficient
evidence to allow the jury to determine that NT’s justification for its decision to
lay-off Jackson is merely pretextual — an excuse designed to disguise NT’s true
intent, age discrimination.
Jackson argues the trial court usurped the jury’s function by resolving
material questions of fact raised by: (1) Calhoun’s allegedly conflicting
testimony regarding who had input regarding the individuals chosen for the RIF at
-7- W estw ord; (2) evidence that, generally, a failure to meet deadlines w as not a
cause for termination, (3) Brennan’s allegedly inconsistent testimony regarding
her knowledge of the financial impetus for the RIF, and (4) evidence of
preferential treatment of younger employees at W estword and NT. Jackson
contends that the cumulative effect of this evidence allows a reasonable inference
that Jackson’s position was actually eliminated because of his age.
(1) Calhoun’s Testimony Regarding the RIF Process
Jackson contends Calhoun’s pre-trial affidavit testimony regarding
Brennan and Lacey’s involvement in the layoff decision conflicts with her
statement at trial that she alone determined the individuals to be included in the
RIF. He maintains this conflict required the jury’s determination regarding
Brennan and Lacey’s role in Jackson’s termination. The portions of the affidavit
at issue are as follow s:
¶ 9. O n September 21, Executive Editor M ichael Lacey and I first discussed corporate layoffs. On September 24, M r. Lacey advised m e that W estw ord needed to eliminate tw o and a half writer positions from its staff. ...
¶ 13. The individuals who decided which w riters would be laid off were myself, age 47, Christine Brennan, Executive M anager Editor, age 48 and M ichael Lacey, Executive Editor, age 54.”
¶ 14. O n September 25, 2001, M r. Lacey, M s. Brennan and I decided that T .W . and M r. Jackson would be laid off and E.D. would move to a half-time position. W e reassigned E.D. to a half time position in sports writing, eliminating his half time position as a staff writer.
-8- (A ppellant’s Appx. Vol. I at 36-37.)
At trial, Calhoun testified Lacey told her the newspaper format would
change causing a reduction in personnel and it was Brennan who supplied the
number of positions W estw ord must eliminate. M oreover, Calhoun unequivocally
testified that she alone decided which of her feature writers w ould be included in
the R IF. B ecause this discrepancy lies at the heart of Jackson’s claims, we
reiterate the relevant trial colloquy here. The questioning regarding ¶ 9 was as
follow s:
Q. M s. Calhoun, you just said in your testimony that it was not M r. Lacey who reported to you three days after September 21st that you needed to eliminate two-and-a-half writer positions from its staff. Isn’t that what your testimony was?
A. M y testimony was he told me to talk to Christine Brennan, who was working with M r. Lacey. So through M r. Lacey, Christine Brennan told me how many positions I had to eliminate.
Q. And that is not what the second sentence of paragraph 9 says, is it?
A. It says, “M r. Lacey advised me.” He advised me through Christine Brennan.
Q. It doesn’t say that, does it?
A. No, it says “M r. Lacey advised me.”
(Appellant’s Appx. Vol. III at 579.) The questioning continued, turning to the statements in ¶¶ 13 and 14.
Q. And the individuals who then went forward and decided who was going to be laid off were Christine Brennan and M r.
-9- Lacey; is that right?
A. No. I decided which individuals were going to be laid off. Christine, working with M ike Lacey, decided how many positions I need[ed] to eliminate.
Q. That differs from paragraph 13 in this affidavit, doesn’t it?
A. It differs a little bit. But this is just a shorter sentence. The overall layoffs were decided by the three of us. They decided the number, and I decided the personnel. ...
Q. And then on September 25th, M s. Brennan, M r. Lacey and you decided T.W. and M r. Jackson would be laid off, and that E.D. would move to a half-time position. Is that what happened?
A. Yes.
(Id. at 579-81.) By granting judgment as a matter of law, Jackson claims the trial
court impermissibly resolved the “glaring inconsistency.” (A ppellant’s Br. at 20.)
Specifically, Jackson takes issue with the trial court’s conclusion that the
uncontradicted evidence established the decision regarding individual employees
during NT’s 2001 RIF w as made locally, not globally, and “there was no evidence
that either Lacey or Brennan directed [Calhoun] to terminate the plaintiff.”
(A ppellant’s Appx. Vol. IV at 857.)
In addressing the disparity between Calhoun’s affidavit and her trial
testimony, the district court stated:
The affidavit, Exhibit 64, is a bit troublesome. And perhaps it was ghost written by counsel for other purposes or perhaps [for] some other reason. But it can be explained as focusing on the ages of the three executives who made all the pertinent lay-off decisions; both the number of the positions, I guess were made by M r. Lacey, [w ith] M s.
-10- Brennan deciding the numbers, as well as the identity of the particular individuals to be laid off . . . ., [the decision] made by the individual editors.
(Id. at 863-64.)
The question here is whether the trial court weighed the evidence or
evaluated Calhoun’s credibility to reach its decision. W e conclude it did not.
W hile the statement in the affidavit, without explanation, could be interpreted in
different ways, Calhoun’s trial testimony and her explanation of the affidavit’s
averments are not inconsistent with the evidence. But for his interpretation of the
affidavit, Jackson presented no evidence at trial demonstrating Calhoun’s
explanation of the decision-making process was false or that she was influenced
by Brennan or Lacey while she made the decision to choose Jackson’s position for
elimination. 4 As a result, the district court did not need to weigh evidence or
4 Moreover, the record as a whole leaves no doubt Calhoun’s testimony was consistent. Prior to Calhoun’s affidavit, Jackson took the depositions of both Calhoun and Brennan. Each testified Brennan supplied the number of positions that had to be cut at each newspaper and each local editor chose the individual positions to be eliminated.
Perhaps most telling is Jackson’s opposition to NT’s motion for summary judgment — written after the affidavit was submitted. In his opposition to summary judgment, Jackson asserted as an undisputed fact:
Brennan determined how many writer positions would be eliminated, communicated to each editor how many people they would need to lay-off, and gave each individual editor the responsibility for determining which writers would be laid off at their paper.
(Appellant’s Appx Vol. I at 80, ¶ 15.) Jackson fails to point to any subsequent evidence which would contradict his own statement.
-11- determine credibility in order to credit Calhoun’s testimony that she alone
decided Jackson would be included in the RIF.
(2) Pretextual Reason For Termination
Jackson argues he presented sufficient evidence that Calhoun’s proffered
reason for including him in the RIF, his difficulty with deadlines, was merely
pretext. “The factfinder is entitled to infer from any weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
reasons for its action that the employer did not act pursuant to those reasons.”
Whittington v. Nordam Group, Inc., 429 F.3d 986, 993 (10th Cir. 2005) (quotation
omitted). “A showing that the employer's justifications for its behavior are
pretextual permits a finding of intentional discrimination.” Id. (quotation
Calhoun testified she chose Jackson to be part of the RIF because his past
difficulties in meeting deadlines would pose a significant problem under the new
format; “If you don’t have a story coming in when you are expecting it, you have
to scramble to fill the hole that emerges . . . .” (Appellant’s Appx. Vol. III at
630.) At trial, Jackson conceded he missed deadlines and there were occasions
when Calhoun had to find another story to publish as a replacement for his
unsubmitted feature. He further admitted he had conversations w ith Calhoun in
which she told him he had created problems for her and the paper because he
failed to submit a story on time. Nonetheless, he claims the trial court weighed
-12- evidence by ignoring his testimony that he and Calhoun had an arrangement
which allowed this flexibility and testimony that all W estword writers missed
deadlines. Jackson further maintains NT’s failure to terminate other writers for
missing deadlines is evidence that NT did not uniformly enforce its rules,
“thereby raising the inference that [the employer] selectively enforced its rules
against [the plaintiff] and that the rules were but a pretext to mask age
discrimination.” (A ppellant’s Br. at 24 (quotation omitted).)
W hile it may be true that other writers missed deadlines, Jackson fails to
address uncontradicted evidence that his deadline problem w as more severe than
the other writers at W estword. Calhoun testified Jackson missed his deadlines
“[m]ore often than not,” “sometimes . . . by a day or two, and sometimes . . . by
considerably more than that.” (Appellant’s Appx. Vol. III at 624.) Calhoun
stated “[w]riters loved to miss deadline[s], [but] . . . [u]sually it is by maybe an
hour, maybe a day, maybe two days in the wors[t] possible case.” (Id. at 625.)
She further testified that Jackson was the only W estword writer who missed a
deadline by weeks “unless something extremely unusual came up, like an illness.”
(Id.)
W hile Jackson testified two other W estw ord writers “rarely turned in
articles” and had difficulty coming up with story ideas, this testimony did not
create a question of fact. He failed to present any evidence that the shortcomings
of these other writers had resulted in the same type of problems he admittedly
-13- caused by failing to miss his deadlines. Given the uncontradicted testimony that a
writer’s reliability became even more essential after the format change, the
district court did not need to weigh evidence to conclude the jury would have no
choice but to find NT presented an uncontradicted legitimate business reason for
including Jackson’s position in the RIF.
(3) Brennan’s Explanation of Financial Necessity for the RIF
Jackson claims Brennan’s false testimony at trial regarding the financial
impact on NT caused by the events on September 11, 2001, raised an inference
“that the employer is dissembling to cover up a discriminatory purpose.”
(Appellee’s Br. at 19 (quotation omitted).) He contends Brennan’s trial testimony
created a blanket credibility question allowing an inference that NT used the R IF
to terminate older workers. Brennan’s relevant testimony is as follow s:
Q: [D]uring these reductions in force, you had M r. Lacey’s ear about who he should get rid of; is that true?
A: M r. Lacey did not give me any input on the layoffs. He asked me to – he told me we – after September 11th, we made the decision that we would reduce our papers from a two-feature format to a one-feature format. And that meant that we had to reduce the number of staff people we had in our employ. And he gave me that assignm ent, and he said, “make this happen, and make it happen as quickly as possible.”
Q: He told you somewhere around September 21st; right?
A: No. He told me that right after September 11th.
...
-14- Q: And the criteria that you comm unicated to [the local editors] was what?
A: I told them that because of the poor economy, because w e w ere losing so many revenues, sales revenues, that we had to make the very difficult decision to sw itch from a two-feature to a one-feature format, and that consequently they had to reduce their staffs. And that was a different number for every paper. But I told them how many people they had to downsize. ...
Q: August of 2001 w ould be long before you knew there would be layoffs?
A: W ell, we couldn’t predict that September 11th would happen. We couldn’t predict that our financial world would collapse.
Q. So is it your testimony that your financial world collapsed with 9/11?
A: Absolutely.
Q: [W ]hat other immediate effects on the newspapers did the 9/11 tragedy cause?
A: W ell, almost immediately, the biggest impact was national advertising. Sales, national advertising almost instantly plummeted after 9/11 . . . .
Q: W hat kind of decrease was there in the national ad revenue after 9/11? ...
A: I am told that national sales, national revenues at our papers dropped more than 50 percent.
(A ppellant’s Appx. Vol. IV at 688-89, 695, 702, 746-47.)
Later in her testimony, Brennan was asked about when she learned of the
September 2001 national figures. She replied that the financial officer had told
her the week before trial. The questioning continued:
-15- Q: So in September of 2001, when these layoff happened, you had no idea what was happening with the national sales figures, since you really didn’t know anything about them?
A: I didn’t know the figures. I only knew things were very, very bad.
Q: So, certainly, since you were the one that is going through your – getting these budgets together, figuring out what reductions to do, you had no access to the information you just learned a week ago, did you?
A: I had no access to the percentage. Of course, I relied upon the CFO of the company to tell me what the state of the company was. And he has always been honest and straightforward with me. I had no reason to doubt him.
(Id. at 778.) Jackson asserts the latter testimony conflicts with the earlier
testimony regarding “what [NT] actually knew about its financial condition when
it began the lay-offs,” and therefore, “[t]he jury should have been allowed to
decide whether Defendant took advantage of a tragedy to rid itself of older
workers . . . .” (A ppellant’s Br. at 5, 19.)
A careful review of the record reveals Brennan’s testimony was consistent
and raised no inference of pretext. She stated she was told to reduce costs
through other budgetary measures between the Spring and Fall of 2001. In spite
of those efforts, the company continued to feel a financial downturn. She
testified she was also aware that events of September 11, 2001, created increased
financial pressure. As a result of this pressure, she was told to calculate the
number of personnel to be laid off at each new spaper under a new format. There
is no evidence Brennan should have known specific account information at the
-16- time she completed the task assigned to her in September 2001. W hile her
testimony regarding what she had been told about NT’s financial information just
prior to trial may have been foundationally questionable, it did not conflict w ith
any earlier testimony or raise an inference that NT used the September 11th
tragedy to lay off older employees.
(4) Evidence of Favoritism to Y ounger W orkers
Jackson maintains he presented sufficient evidence of favoritism to younger
workers in both the decisions to hire younger writers just prior to the RIF and in
the decisions to transfer rather than fire younger writers after the RIF. He also
claims J.H. should have been the candidate for the September 2001 RIF rather
than himself.
(a) Hiring younger w riters just before the RIF.
Jackson argues the trial court disregarded evidence that younger employees
were hired at W estword and other NT newspapers shortly before the RIF, even
though there was a wage freeze and a de facto hiring freeze in place throughout
N T’s holdings at the time. Jackson points to the hiring of J.H. (age 29) and D.H.
(age 30) at W estw ord and S.B. (age 26) in Phoenix. These hires, according to
Jackson, raised an inference of a plan to staff W estword (and other NT
newspapers) w ith younger w riters while trimming older w riters from its ranks.
Jackson again ignores the uncontradicted testimony that each of these
employees were hired to fill positions that had been open since late 2000 and
-17- April 2001, long before the necessity of a R IF was known. “The fact that [NT’s]
managers were hiring before they learned of the RIF is irrelevant to proving that
the RIF w as pretextual.” Doan v. Seagate Tech., Inc., 82 F.3d 974, 977 (10th Cir.
1996). In addition, there is no evidence that any of these employees received a
raise as a result of accepting an existing position. The law does not require
employers to lay off based on seniority or to reverse transfer decisions after the
need for layoffs becomes known. Id. Therefore, NT’s decision to hire or transfer
these employees at the same rate of pay prior to the RIF decision does not raise an
inference of discrimination.
(b) Favoritism Toward J.H.
Jackson also contends the jury should have been permitted to consider
whether Calhoun should have selected J.H for the September 2001 RIF because
Calhoun offered contradictory testimony as to why he was not considered and
there was evidence demonstrating J.H. had serious ethical issues. Calhoun
testified that she did not consider J.H. for the RIF in September 2001, because he
had not yet turned in his first feature story at W estword. In the notorious
summary judgment affidavit, Calhoun stated, “M r. Lacey, M s. Brennan and I later
decided that J.H. would be laid off when he completed work already in progress.”
(Appellant’s Appx. Vol. I at 37 (emphasis added).) Once again, the affidavit does
not conflict with the testimony. Indeed, it supports Calhoun’s testimony that she
determined J.H. should be laid-off in January because by December, she
-18- considered him her weakest writer. Jackson presented no evidence at trial
regarding J.H.’s ethical issues. Rather, the only reference to such issues is found
in Jackson’s deposition regarding his understanding that there were concerns.
Jackson’s “[s]peculation, however, will not suffice for evidence.” Doan, 82 F.3d
at 977.
Jackson’s argument on this point also alludes to Epler’s proffered
testimony. However, Epler’s deposition testimony reveals she allegedly
discussed her ethical concerns about J.H. with Calhoun only after the September
2001 RIF. Epler also testified that at no time during her conversation with
Calhoun did Calhoun state she was directed to terminate Jackson instead of
Hibberd. Thus, even were we to consider this evidence, it does not support an
inference of age discrimination.
(c) Transfers of Younger W riters
Jackson claims the district court erred when it did not consider the transfer
of T.W . from the Denver office and employee transfers from other offices during
the September 2001 time period as evidence of age discrimination for the jury’s
consideration. “A lthough an employer is under no obligation to transfer to
another position in the company an employee whose position has been eliminated,
the employer violates the ADEA when it transfers other displaced employees but
does not place the plaintiff in a new position because of age discrimination.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir. 1988).
-19- In other words, a plaintiff denied an opportunity to transfer establishes a prima facie case of age discrimination when he or she produces evidence demonstrating that 1) he or she is a member of a protected class; 2) at the time of his or her termination he or she was qualified for other available positions within the corporation; 3) the employer did not offer such positions to the plaintiff; and 4) a similarly-situated employee who is not a member of the protected class was offered the opportunity to transfer to an available position . . . .
Id.
Not only did the uncontradicted evidence demonstrated a sound business
reason for each transfer, Jackson failed to establish he was similarly situated to
some of the other employees. As to T.W .’s transfer from W estw ord, Calhoun did
not participate in the decision to transfer T.W ., nor did she know of the
possibility when she determined to eliminate his position in September 2001. It
was only after Calhoun informed T.W . his position would be eliminated that the
editor of the Kansas publication specifically requested that T.W . be allowed to fill
an open position there.
Jackson also relies on the transfer of M .H. (age 24) from NT’s newspaper
in Houston, Texas, to the paper in Oakland, California. However, Jackson
ignores the uncontradicted testimony that M .H. was not part of the RIF. Pursuant
to a request from M .H. very early in 2001 to leave Houston, she transferred from
Houston to fill an entry-level position at the Oakland paper available due to an
employee’s termination for cause. Similarly, B.M . (age 26) was the music editor
at the Phoenix paper and was offered an opportunity to fill an open music editor
position in Cleveland, Ohio. Again, his transfer is irrelevant to Jackson because
-20- the positions are not similarly situated. Whittington, 429 F.3d at 999 (“[A]ge
discrimination may not be inferred from different treatment of employees unless
the employees are similarly situated under the circumstances and the difference in
age between the employees is not insignificant.”) (quotation omitted). Finally,
Jackson refers to the transfer of M .F. (age 25) from the M iami, Florida, office.
Jackson disregards the fact M .F. was transferred with M .E. (age 49) from the
same office.
Even assuming their positions were similar to Jackson’s, a fact not
established at trial, it is uncontradicted that their transfer occurred because the
M iami office needed to eliminate four positions, while the nearby Fort
Lauderdale, Florida, paper had two open positions. Because it would not be
necessary for M .F. and M .E. to relocate in order to fill those positions, the editor
in Fort Lauderdale agreed to accept both, thereby allowing the M iami paper to
eliminate only two positions. Given the undisputed evidence that only possibly
similarly-situated employees, one over-forty and one under-forty, were transferred
because of their geographical proximity to open positions, we conclude the
district court did not err in ruling this evidence could not support an inference of
age discrimination.
In sum, the sheer number of Jackson’s allegations of error cannot substitute
for their lack of substance. W e agree with the district court that the reasons given
for Jackson’s inclusion in the RIF w ere “at least, plausible, if not compelling.”
-21- (A ppellant’s A ppx. Vol. IV at 862.) The court correctly noted Jackson failed to
come forward with evidence of age bias at W estword, he presented no evidence
that Calhoun’s choice was influenced by others, no evidence that W estword w as a
particularly youth-oriented workplace and no evidence that younger individuals
were hired in anticipation of the RIF or were transferred based on age pursuant to
some corporate policy. “[W]e will not second guess business decisions made by
employers, in the absence of some evidence of impermissible motives.” Garrison
v. Gambro, Inc., 428 F.3d 933, 938 (10th Cir. 2005) (quotation omitted).
[A ]n employer [is] entitled to judgment as a matter of law if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.
Reeves, 530 U.S. at 148. Jackson failed to rebut NT’s non-discriminatory reasons
for including Jackson in the RIF – N T determined to change the format in light of
financial difficulty, the new format required the elimination of positions and
Jackson’s position was eliminated due to his chronic failure to meet deadlines.
The jury could come to but one conclusion, warranting judgment as a matter of
law.
B. Admission of Testimony
The district court’s ruling regarding the admission of evidence is reviewed
for an abuse of discretion. Black v. M & W Gear Co., 269 F.3d 1220, 1227 (10th
-22- Cir. 2001). “W e will not disturb the court’s ruling unless we have a definite and
firm conviction that the lower court made a clear error of judgment or exceeded
the bounds of permissible choice in the circumstances.” Coletti v. Cudd Pressure
Control, 165 F.3d 767, 776 (10th Cir. 1999) (quotation omitted). Jackson
contends the court abused its discretion in disallow ing Epler’s testimony because
it w as relevant to show corporate-w ide age-bias in a corporate-w ide RIF.
According to Jackson, the jury was entitled to consider what was occurring
throughout the corporation, including remarks by Lacey, Brennan and Van de
Voorde reflecting “a cumulative managerial [age-bias] . . . that has influenced the
decisionmaking process for a considerable time.” (Appellant’s Br. at 26
(quotation omitted).)
Jackson claims Epler would have established a “nexus between corporate
actions in Phoenix [and] corporate actions felt in Denver” because six months to a
year after Jackson was laid-off, Brennan allegedly told Epler not to hire a fifty-
year-old woman due to her age and they needed someone “young and hip.”
(A ppellant’s A ppx. Vol. II at 272-73.) In addition, Lacey made the decision in
Phoenix to include two over-forty employees in the September 2001 RIF, one who
was allegedly laid off because Lacey thought the employee was “burned out.”
(Id. at 276.) Further, Epler testified regarding a number of incidents beginning in
the spring of 2002 and occurring through 2004 which demonstrated a workplace
culture favoring youth at the Phoenix office. W hile we make no comment on how
-23- this testimony would relate to a decision made in the Phoenix office, the district
court did not abuse its discretion in concluding these incidents w ere irrelevant to
Calhoun’s decision to choose Jackson in the September 2001 RIF.
“The threshold inquiry in any dispute over the admissibility of evidence is
whether the evidence is relevant.” Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
1246 (10th Cir. 2000). To demonstrate a discriminatory animus, a plaintiff must
show “a nexus between the allegedly discriminatory statements [and actions] and
the defendant’s decision to terminate the plaintiff.” M inshall v. M cGraw Hill
Broad. Co., 323 F.3d 1273, 1281 (10th Cir. 2003) (quotation omitted). Comments
or actions unrelated to the challenged action “are insufficient to show a
discriminatory animus in termination decisions.” Id.
Epler had no knowledge, nor is there any other evidence, that Lacey,
Brennan or Van de V oorde affirmatively conveyed any alleged discriminatory
animus to Calhoun, who was the Denver decision-maker of record. See Cariglia
v. Hertz Equip. Rental Corp., 363 F.3d 77, 85 (1st Cir. 2004) (discussing lack of
taint of animus infection). Nor is there evidence that Calhoun independently
harbored or demonstrated any discriminatory animus toward Jackson.
To establish pretext, any alleged animus on the part of Lacey, Brennan and
Van de Voorde is relevant only if they participated in or influenced the decision
to terminate Jackson. See Little v. Illinois Dept. of Revenue, 369 F.3d 1007, 1015
(7th Cir. 2004) (“The analysis of pretext focuses only on what the decisionmaker,
-24- and not anyone else, sincerely believed.”). W hile the corporate supervisors could
have chosen to direct Calhoun’s decision, there is no evidence that they did so.
Epler’s testimony merely relates alleged comments articulated from months to
years after Calhoun determined Jackson’s position should be eliminated. 5 Despite
Jackson’s attempt to connect these comments to some corporate angst, Eplers’s
testimony forges no connection between the statements in Phoenix and decisions
in Denver.
Even if Epler’s testimony had slight relevance to the decision to eliminate
Jackson’s position, its unfair prejudice far outw eighed any probative value.
“Testimony about later events is even less relevant and of less probative value
than evidence of prior bad acts generally, because the logical relationship
between the circumstances of the character testimony and the employer’s decision
to terminate is attenuated.” Coletti, 165 F.3d at 777; see also Stewart v. Adolph
Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000) (“Even assuming that [a
manager’s] comment was racially motivated, . . . it was made some three years
after [the employment action] and is not probative of [his] motivations [at the
time he made his decision].”). Because Epler’s testimony did not establish a
connection between the September 2001 decision in Phoenix and Calhoun’s
5 While Epler alleged an ageist comment made by the Phoenix editor, Kristi Dempsey, prior to the September 2001 RIF, Dempsey had no part in the Phoenix or Denver decisions. Lacey made the decisions in Phoenix, the only publication at which he had a hands-on working relationship.
-25- decision in Denver, it was irrelevant to Jackson’s claims. Even if some slight
relevance could be gleaned from attenuated inferences, the district court did not
err in concluding the probative value of Epler’s testimony was significantly
outweighed by its potential prejudice.
A FFIRME D.
Entered by the C ourt:
Terrence L. O ’Brien United States Circuit Judge
-26-