[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
________________________
No. 97-8932 Non-Argument Calendar ________________________
D. C. Docket No. 1:94-CV-2850-WCO
RAYMOND B. JACOBS, Plaintiff-Appellant, versus
AGENCY RENT-A-CAR, INC., and AGENCY AUTO SALES, INC., Defendants-Appellees.
________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (July 16, 1998)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges. PER CURIAM:
Following an adverse jury verdict, Appellant Raymond Jacobs appeals the
trial judge’s refusal to permit him to amend the pretrial order to add an additional
witness. After a review of Appellant’s contentions and the record in this case, we
hold that the district court did not abuse its discretion and affirm. I. BACKGROUND
At the age of 62, Appellant Raymond Jacobs was hired by Agency Rent-A-
Car (Agency) to work in retail sales. Appellant was placed in the position of
Regional Car Sales Manager and was responsible for the retail sales lots in his
region. At the time he was hired in March 1992, Appellant reported to the National
Retail Sales Manager, Tom Ciresa.
Appellant presented evidence at trial that, in the late fall of 1992, Agency’s
Vice President, Kelly Reagan, instructed Ciresa to fire Appellant. The reason given
by Reagan was that Agency’s President and Chairman, Sam Frankino, did not like
the way Appellant looked because he was too old. Ciresa refused to fire Appellant.
In late 1992, Agency embarked on a reorganization plan. Under that plan,
Gary Mooney, a personal friend of Chairman Frankino, was put in the new position
of National Vehicle Sales Director. Appellant was promoted to become one of two
Regional Directors and Cisera was demoted to fill the other Regional Director
position. Cisera and Appellant reported to Mooney. Mooney, in turn, reported to
Reagan.
In his new position, Appellant was in charge of all used rental vehicle retail
sales in the eastern half of the country. Appellant maintained his home office at the
Tucker, Georgia, lot and spent about half of his time there.
2 Around January 19, 1993, Mooney made an announced visit to the Tucker
lot. While there, Mooney made the following observations: (1) Appellant was
neglecting his responsibility of supervising the operations at the Tucker lot; (2) the
vehicles on the lot were dirty — some even had cigarette butts in the ashtrays; (3)
employees at the lot were not following safety precautions to protect the cars; (4)
some cars were unlocked and some had keys in the ignitions; (5) a radio had been
stolen from one vehicle without forced entry; (6) the sales office was dirty, smoky,
and disorganized; (7) a car had been damaged by rainwater dripping through a
windshield; and (8) the inventory records were a mess.
At the time of the visit to the Tucker lot, Mooney had begun to plan a further
reorganization of Agency which would lead to elimination of the entire used rental
vehicle retail program. On about January 28, 1993, Mooney returned to the Tucker
lot and met with Appellant. He informed Appellant that his position was being
eliminated and that he was being terminated due to poor job performance.
On April 14, 1993, Appellant filed his charge of age discrimination with the
EEOC. He filed this lawsuit on October 26, 1994. On June 19, 1995, just after the
close of discovery, Agency filed a motion for summary judgment. The trial court
granted that motion and Appellant appealed. On December 30, 1996, this Court
reversed and remanded the case for further proceedings.
3 On April 10, 1997, the parties went to mediation. During mediation,
Appellant, for the first time, mentioned a witness who would testify that Mooney
made a statement about Appellant’s age on the day he fired Appellant. Appellant’s
counsel identified the witness as J.W. Lewis. Lewis worked as a porter at the
Tucker lot during the time Appellant worked there.
The parties submitted a proposed pretrial order on April 17, 1997. The case
was set for trial on May 5, 1997. In the pretrial order, Appellant attempted to add
J.W. Lewis to the list of witnesses. Agency objected, claiming that the addition of
a previously unidentified witness was untimely and prejudicial to the defense. The
trial judge agreed and sustained Agency’s objection at the pretrial conference on
April 28, 1997.
The trial was subsequently continued from May 5, 1997 to June 10, 1997 and
then again from June 10 to July 14, 1997. On June 17, 1997, Appellant filed an
emergency motion in which he sought leave to amend the pretrial order. On that
same day, Appellant served amended responses to Agency’s first set of
interrogatories and listed Lewis as a witness.
On July 3, 1997, the trial court denied Appellant’s motion. The trial court
found that the addition of the witness would significantly alter the theories and
strategies in the case and would necessitate reopening discovery and postponing the
4 trial. The trial court noted that Appellant’s theory to that point had been that
Frankino and Reagan wanted him out of the company because of his age and that
Mooney had merely been following orders. The trial court found that the addition
of a witness willing to testify that Mooney made comments about Appellant’s age
could shift the focus of Appellant’s case to include a claim of direct discriminatory
intent on the part of Mooney. Such a shift would change the framework, the inquiry
as to whether Appellant satisfied his burden of proof, as well as the strategies of the
parties. The court felt that such a change on the eve of trial was unfair to Agency
and would interfere with the court’s schedule. Further, the district court found that
no manifest injustice would result from the exclusion of the witness. The court
concluded that Lewis’s testimony was not critical to Appellant’s case because
Appellant had demonstrated a prima facie case of discrimination. Finally, the court
determined that Appellant’s failure to mention Lewis until the eve of trial was due
to Appellant’s insufficient discovery response rather than simple mistake or
inadvertence.
II. DISCUSSION
We have previously stated that “we ascribe to the trial court a broad
discretion to preserve the integrity and purpose of the pretrial order.” Hodges v.
5 United States, 597 F.2d 1014, 1018 (5th Cir. 1979).1 “[F]or pretrial procedures to
continue as viable mechanisms of court efficiency, appellate courts must exercise
minimal interference with trial court discretion in matters such as the modification
of its orders.” Id. More recently, we noted that “[t]here is a presumption that a
pretrial order will be amended in the interest of justice and sound judicial
administration provided there is no substantial injury or prejudice to the opposing
party or inconvenience to the court.” United States v. Varner, 13 F.3d 1503,
1507-08 (11th Cir. 1994). If amendment of the pretrial order would result in
substantial injustice to the opposing party or inconvenience to the court, the order
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
________________________
No. 97-8932 Non-Argument Calendar ________________________
D. C. Docket No. 1:94-CV-2850-WCO
RAYMOND B. JACOBS, Plaintiff-Appellant, versus
AGENCY RENT-A-CAR, INC., and AGENCY AUTO SALES, INC., Defendants-Appellees.
________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (July 16, 1998)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges. PER CURIAM:
Following an adverse jury verdict, Appellant Raymond Jacobs appeals the
trial judge’s refusal to permit him to amend the pretrial order to add an additional
witness. After a review of Appellant’s contentions and the record in this case, we
hold that the district court did not abuse its discretion and affirm. I. BACKGROUND
At the age of 62, Appellant Raymond Jacobs was hired by Agency Rent-A-
Car (Agency) to work in retail sales. Appellant was placed in the position of
Regional Car Sales Manager and was responsible for the retail sales lots in his
region. At the time he was hired in March 1992, Appellant reported to the National
Retail Sales Manager, Tom Ciresa.
Appellant presented evidence at trial that, in the late fall of 1992, Agency’s
Vice President, Kelly Reagan, instructed Ciresa to fire Appellant. The reason given
by Reagan was that Agency’s President and Chairman, Sam Frankino, did not like
the way Appellant looked because he was too old. Ciresa refused to fire Appellant.
In late 1992, Agency embarked on a reorganization plan. Under that plan,
Gary Mooney, a personal friend of Chairman Frankino, was put in the new position
of National Vehicle Sales Director. Appellant was promoted to become one of two
Regional Directors and Cisera was demoted to fill the other Regional Director
position. Cisera and Appellant reported to Mooney. Mooney, in turn, reported to
Reagan.
In his new position, Appellant was in charge of all used rental vehicle retail
sales in the eastern half of the country. Appellant maintained his home office at the
Tucker, Georgia, lot and spent about half of his time there.
2 Around January 19, 1993, Mooney made an announced visit to the Tucker
lot. While there, Mooney made the following observations: (1) Appellant was
neglecting his responsibility of supervising the operations at the Tucker lot; (2) the
vehicles on the lot were dirty — some even had cigarette butts in the ashtrays; (3)
employees at the lot were not following safety precautions to protect the cars; (4)
some cars were unlocked and some had keys in the ignitions; (5) a radio had been
stolen from one vehicle without forced entry; (6) the sales office was dirty, smoky,
and disorganized; (7) a car had been damaged by rainwater dripping through a
windshield; and (8) the inventory records were a mess.
At the time of the visit to the Tucker lot, Mooney had begun to plan a further
reorganization of Agency which would lead to elimination of the entire used rental
vehicle retail program. On about January 28, 1993, Mooney returned to the Tucker
lot and met with Appellant. He informed Appellant that his position was being
eliminated and that he was being terminated due to poor job performance.
On April 14, 1993, Appellant filed his charge of age discrimination with the
EEOC. He filed this lawsuit on October 26, 1994. On June 19, 1995, just after the
close of discovery, Agency filed a motion for summary judgment. The trial court
granted that motion and Appellant appealed. On December 30, 1996, this Court
reversed and remanded the case for further proceedings.
3 On April 10, 1997, the parties went to mediation. During mediation,
Appellant, for the first time, mentioned a witness who would testify that Mooney
made a statement about Appellant’s age on the day he fired Appellant. Appellant’s
counsel identified the witness as J.W. Lewis. Lewis worked as a porter at the
Tucker lot during the time Appellant worked there.
The parties submitted a proposed pretrial order on April 17, 1997. The case
was set for trial on May 5, 1997. In the pretrial order, Appellant attempted to add
J.W. Lewis to the list of witnesses. Agency objected, claiming that the addition of
a previously unidentified witness was untimely and prejudicial to the defense. The
trial judge agreed and sustained Agency’s objection at the pretrial conference on
April 28, 1997.
The trial was subsequently continued from May 5, 1997 to June 10, 1997 and
then again from June 10 to July 14, 1997. On June 17, 1997, Appellant filed an
emergency motion in which he sought leave to amend the pretrial order. On that
same day, Appellant served amended responses to Agency’s first set of
interrogatories and listed Lewis as a witness.
On July 3, 1997, the trial court denied Appellant’s motion. The trial court
found that the addition of the witness would significantly alter the theories and
strategies in the case and would necessitate reopening discovery and postponing the
4 trial. The trial court noted that Appellant’s theory to that point had been that
Frankino and Reagan wanted him out of the company because of his age and that
Mooney had merely been following orders. The trial court found that the addition
of a witness willing to testify that Mooney made comments about Appellant’s age
could shift the focus of Appellant’s case to include a claim of direct discriminatory
intent on the part of Mooney. Such a shift would change the framework, the inquiry
as to whether Appellant satisfied his burden of proof, as well as the strategies of the
parties. The court felt that such a change on the eve of trial was unfair to Agency
and would interfere with the court’s schedule. Further, the district court found that
no manifest injustice would result from the exclusion of the witness. The court
concluded that Lewis’s testimony was not critical to Appellant’s case because
Appellant had demonstrated a prima facie case of discrimination. Finally, the court
determined that Appellant’s failure to mention Lewis until the eve of trial was due
to Appellant’s insufficient discovery response rather than simple mistake or
inadvertence.
II. DISCUSSION
We have previously stated that “we ascribe to the trial court a broad
discretion to preserve the integrity and purpose of the pretrial order.” Hodges v.
5 United States, 597 F.2d 1014, 1018 (5th Cir. 1979).1 “[F]or pretrial procedures to
continue as viable mechanisms of court efficiency, appellate courts must exercise
minimal interference with trial court discretion in matters such as the modification
of its orders.” Id. More recently, we noted that “[t]here is a presumption that a
pretrial order will be amended in the interest of justice and sound judicial
administration provided there is no substantial injury or prejudice to the opposing
party or inconvenience to the court.” United States v. Varner, 13 F.3d 1503,
1507-08 (11th Cir. 1994). If amendment of the pretrial order would result in
substantial injustice to the opposing party or inconvenience to the court, the order
should be amended only to avoid manifest injustice. Id. at 1508.
Appellant argues that the trial court should have granted his emergency
motion once the trial date was delayed. He asserts that no new discovery would
have been necessary and the trial could have started on schedule.
We hold that the trial court did not abuse its discretion. Discovery closed on
May 31, 1995. It was not until two years later that Appellant first told Agency that
Lewis would testify about Mooney’s comments concerning Appellant’s age.
Agency filed its motion for summary judgment soon after the conclusion of
1 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 6 discovery, relying on Appellant’s representation that his theory of discrimination
turned on indirect evidence. With the case in that posture, the district court granted
summary judgment in favor of Agency. Appellant appealed and this Court reversed
and remanded the case for trial on December 30, 1996. It was not until four months
later that Appellant even suggested that his case would include direct evidence that
Mooney was motivated by discriminatory animus. Lewis was not a difficult
witness to find; he worked for Agency at the Tucker lot during Appellant’s period
of employment. Although Appellant argues that no new discovery would be
necessary, his opponent might not share that view given the fact that the addition
of this witness might change the entire focus of the trial. The district court
reasonably concluded that the addition of Lewis as a witness less than one month
before trial would significantly prejudice Agency and would inconvenience the
court. Moreover, the record supports the trial court’s conclusion that no manifest
injustice would result from denial of Appellant’s motion to amend.
III. CONCLUSION
Upon review of the parties’ arguments and the record, we hold that the
district court did not abuse its discretion by denying Appellant’s motion to amend
the pretrial order.
AFFIRMED.