Francis H. Dupre v. Fru-Con Engineering Inc., Fru-Con Construction Corp.

Citations: 112 F.3d 329; 46 Fed. R. Serv. 1504; 37 Fed. R. Serv. 3d 387; 1997 U.S. App. LEXIS 8577; 71 Empl. Prac. Dec. (CCH) 44,796; 76 Fair Empl. Prac. Cas. (BNA) 1731; 1997 WL 197149Docket: 96-2064

Court: Court of Appeals for the Eighth Circuit; April 24, 1997; Federal Appellate Court

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Francis H. Dupre appealed a jury verdict favoring Fru-Con Engineering and Fru-Con Construction in his age discrimination lawsuit, citing violations of the Age Discrimination in Employment Act and the Missouri Human Rights Act. Dupre, who began working for Fru-Con at age fifty-four, was terminated in June 1993 after being relieved of his managerial positions due to alleged poor performance and the availability of better-qualified candidates. Dupre argued that the termination was predominantly based on his age, supported by the concurrent firing of another division manager over sixty. The District Court excluded testimony from a former employee regarding age-related comments made years prior and instructed the jury that a related age discrimination lawsuit by another employee, John Linton, could not be used to infer age discrimination against Dupre, as Linton's case was dismissed for failing to establish a prima facie case. Dupre contended that errors in jury instructions and the exclusion of key testimony deprived him of a fair trial, but the appellate court affirmed the lower court's judgment.

Dupre was replaced, and Fru-Con filed a motion in limine to exclude testimony regarding alleged discrimination towards Linton due to concerns about its prejudicial effect. The District Court partially granted and partially denied this motion. In its Instruction 7 to the jury, the court noted Linton's termination and lawsuit against Fru-Con for age discrimination, emphasizing that Linton's case had concluded in favor of the defendants and that his discharge could not imply age discrimination against Dupre. Dupre contended that this instruction was prejudicial as it informed the jury of Linton's lawsuit outcome and restricted their inferences regarding age discrimination. Fru-Con countered that Dupre failed to preserve these arguments for appeal under Federal Rule of Civil Procedure 51, which mandates distinct objections to jury instructions before deliberation. The court highlighted that Dupre's general objection was insufficient to preserve the specific grounds now raised on appeal, referencing case law that supports this stance. Consequently, Dupre's arguments regarding Instruction 7 were deemed unpreserved.

Dupre asserts that his objections to Instruction 7 were preserved through an unrecorded objection made in chambers, arguing that Rule 51 does not mandate on-the-record objections. He references the case Niehus v. Liberio, where the Seventh Circuit allowed an unrecorded objection to be preserved for appeal. However, the court distinguishes Niehus by noting that it is not binding in this Circuit, where it is established that specific objections and their grounds must be stated on the record to preserve an argument for appellate review. Citing various cases, including Campbell v. Vinjamuri and Farmland Indus. v. Frazier-Parrott Commodities, the court emphasizes the need for a clear record of objections. The trial court's instruction in Dupre's case to "make your record" required both the objection and its grounds to be stated on the record, which Dupre's counsel failed to do. Consequently, the arguments regarding Instruction 7 are deemed waived. The court also notes that under plain error review, Dupre has not argued that the giving of Instruction 7 constituted a plain error that would require reversal.

Dupre challenges jury Instruction 10, which states that jurors should not question the legitimacy of the defendants' nondiscriminatory reason for discharging him, emphasizing that an employer can terminate an employee for any reason as long as it is not age-related. Dupre contends that the phrase "defendants' legitimate non-discriminatory explanation" inaccurately implies that Fru-Con had a substantiated reason for the discharge, rather than merely a proffered explanation, which he believes misstates the law and prejudices his case. However, he failed to preserve this specific objection for appeal, having only argued that Instructions 8 and 10 together confuse the jury regarding the employer's reasons for discharge. Consequently, his objection on this basis is waived, and only plain error will be reviewed, which the court did not find.

Additionally, Dupre asserts that the similarity of Instructions 8 and 10 is prejudicial, but this claim was preserved for appellate review. The court will assess the instructions collectively to determine if they adequately convey the issues to the jury. It is noted that while the laws cited prohibit age discrimination, they do not mandate that employers retain the most qualified employees, only that decisions are not based on age. An employer can legitimately discharge an employee based on an honest evaluation of qualifications without implying a violation of the law.

Instruction 8 outlines the purposes of the Age Discrimination in Employment Act and the Missouri Human Rights Act, while Instruction 10 addresses the concept of pretext. The jury was adequately presented with the issues at hand, and the instructions did not unduly favor Fru-Con's defense regarding a legitimate non-discriminatory explanation for the actions taken against Dupre. Dupre argued that the District Court erred by excluding deposition testimony from Hugh Weikart, which referenced comments by James Coleman, Jr. regarding age discrimination. However, Dupre failed to preserve this issue for appeal by not providing an appropriate offer of proof or context for the testimony's relevance. The court noted that an attorney must preserve issues for appeal by making a record of the evidence excluded. Dupre's claim that an offer of proof was made off the record does not suffice, as only documented offers of proof are considered. Without a proper offer, the court applies a plain error standard, which is reserved for compelling cases, indicating that Dupre's situation does not meet this threshold for reversal.

The District Court did not abuse its discretion in excluding Weikart's testimony due to its temporal remoteness, occurring four years prior to Dupre's termination, and the potential for unfair prejudice outweighing its relevance. The court's decision aligns with Federal Rules of Evidence 402 and 403. Dupre's argument regarding cumulative errors affecting the verdict fails, as the alleged errors were either unpreserved or meritless. Consequently, the judgment of the District Court is affirmed. Dupre's counsel attempted to modify the record by filing an affidavit regarding off-the-record events, which was improper; a motion should have been filed with the District Court instead. Any ambiguity in jury instructions was addressed adequately within the instructions provided, despite not being perfectly clear. Ultimately, without a proper record of the reasons for excluding Weikart's testimony, reviewing the ruling is challenging.