NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0737n.06
Filed: August 24, 2005
File Name: 05a0737n.06
Filed: August 24, 2005
Nos. 03-3797/03-3883
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT L. HUNTER, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
GENERAL MOTORS CORPORATION, ) NORTHERN DISTRICT OF OHIO
UAW LOCAL 549, and RON WILLIS, )
)
Defendants-Appellees. )
Before: NORRIS and DAUGHTREY, Circuit Judges, and MARBLEY,* District Judge.
PER CURIAM. The plaintiff, Robert Hunter, appeals from a jury verdict rejecting his
allegations of race and age discrimination made against General Motors Corporation (GMC), Local
549 of the United Automobile, Aerospace & Agricultural Implement Workers of America (UAW),
and Ron Willis, chairperson of Local 549's bargaining committee. On appeal, Hunter contests the
sufficiency of the evidence to support the verdict, the admissibility of certain evidence, and various
rulings regarding jury instructions. We affirm the judgment of the district court.
*
The Hon. Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
Nos. 03-3797/03-3883
Hunter v. GMC
FACTUAL AND PROCEDURAL BACKGROUND
In the early spring of 1999, Robert Hunter, an African-American male who was a member
of Local 549, was 54 years old and had been employed by General Motors Corporation for more than
13 years, most recently as a “blanker technician.” At that time, however, he and 84 of his co-workers
applied to become carpenter employees-in-training at GMC’s Mansfield, Ohio facility. Had Hunter
been accepted into the program, he would have been paid “approximately $3 more an hour than [the
$26 per hour he was earning.]”
In settling upon a process for selecting five individuals for the employees-in-training
program, GMC’s employment supervisor, Larry Ware, and the company’s personnel director, Jim
Mennier, “were looking for a joint process, one that involved both management and union.” In
accordance with that goal, the two parties were each given a set of the 85 completed applications and
asked to “come back with a recommended group to be interviewed.” The two lists of recommended
individuals were then combined and each of the 28 selected employees, including the plaintiff, were
interviewed for one-half hour.1 In each instance, the same committee of nine persons -- six union
representatives and three company representatives -- plus Ware, met together to interview the
candidates and asked the applicants the same 19 questions, focusing in part upon the applicants’
trade knowledge and experience.
1
Three of the 28 applicants selected for interviews were African-Americans.
-2-
Nos. 03-3797/03-3883
Hunter v. GMC
After each interview, the committee members, without consulting with each other, scored
the applicant on a form provided to them.2 Ware threw out each applicant’s high and low score,
averaged the remaining seven scores, and ranked the interviewees from high to low. In that ranking,
the plaintiff had the lowest score among the 27 applicants who actually completed the interview
process. Ware also ranked the interviewees according to seniority and allowed the committee to
compare the interview results with that seniority chart.
The company representatives on the committee expressed a desire to select the five highest
scoring individuals (Roberts, Craft, Shiplet, Baughman, and Coleman) for the employees-in-training
program. General Motors did indeed “promote” Roberts, Craft, and Coleman, but Shiplet and
Baughman were replaced in the program by two more-senior employees whose interview scores were
virtually identical to those of Shiplet and Baughman.
When Hunter learned of the adverse decision on his application for the employee-in-training
program, he filed a written complaint with the company’s Equal Employment Opportunity officer,
alleging racial and age bias in the decision-making process. In support of that charge, he noted that
all five of the employees eventually selected for the carpenter employees-in-training program were
both white and younger than Hunter.
While that complaint process was running its course, the plaintiff, as an alternate way of
entering the carpentry trade at the plant, sought from the union a journeyman carpenter’s card. Ron
Willis, however, harbored doubts about the plaintiff’s carpentry qualifications and relayed those
2
Ware merely conducted the interviews and did not include his impressions of the applicants
in any of his later tabulations.
-3-
Nos. 03-3797/03-3883
Hunter v. GMC
concerns to individuals at the union’s headquarters in Detroit. In response, the Skilled Trades
Department of the UAW requested that Hunter provide them with earnings information from a prior
non-union job so that the union leaders could verify the plaintiff’s claimed previous carpentry
experience. Hunter not only did not respond to that request, but he also ignored a second letter from
the certifying branch of the union that sought the same necessary documentation. Consequently, the
union never issued the journeyman carpenter’s card to the plaintiff.
After exhausting his administrative remedies in his effort to overturn the company’s carpenter
employees-in-training selection decision, Hunter filed this action in federal district court against
General Motors, against Local 549, and against Ron Willis, the local’s shop chairperson. In his
complaint, he alleged that the actions of the defendants contravened relevant provisions of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e-17, and Ohio Revised Code § 4112.02. He further
asserted that the union breached its contractual duty to him to represent him fairly and protect his
best interests.
Following a period for discovery, the defendants moved for summary judgment in their favor
on all claims. The district court first noted that “Hunter has apparently abandoned” his breach of
contract claim and thus did not address that cause of action in its ruling. The court denied the
remainder of the summary judgment motions, however. At the ensuing trial, the parties adduced
evidence relating to the carpenter employees-in-training selection process and the plaintiff’s efforts
to obtain a journeyman carpenter’s card. In addition, Hunter and other African-American employees
of the Mansfield plant testified about race relations at the facility, highlighting instances of
-4-
Nos. 03-3797/03-3883
Hunter v. GMC
hangman’s nooses being placed around the plant and racially-insensitive graffiti and other slogans
being painted in the work and break areas.
At the conclusion of the trial testimony, the jury returned a verdict in favor of the defendants
on all claims. The district court then rendered judgment in accordance with that verdict, leading to
this appeal.
DISCUSSION
I. Racial Discrimination in the Employees-in-Training Selection Process3
Hunter first submits that the jury’s verdict on his racial discrimination claim regarding the
employees-in-training program “was against the great weight of the evidence.” We may not,
however, address this allegation of error because, as we stated explicitly in Pennington v. Western
Atlas, Inc., 202 F.3d 902, 911 (6th Cir. 2000), “[i]n order to preserve a challenge to a jury verdict
as being against the great weight of the evidence, the appellant must have made a motion for a new
trial in district court.” Because the appellate record offers no indication that Hunter filed such a
motion for new trial, this claim is not properly before the panel.
In any event, overwhelming evidence supports the conclusion reached by the jury in this
regard. The record establishes that Hunter was far from the most qualified individual for inclusion
in the carpenter employees-in-training program. The plaintiff’s own lack of qualifications, not
3
In his appellate brief, Hunter makes absolutely no argument or other mention of an age
discrimination claim. Any issue related to the plaintiff’s allegations of age discrimination has,
therefore, been abandoned. See United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002) (court
will consider claim abandoned if not adequately briefed on appeal).
-5-
Nos. 03-3797/03-3883
Hunter v. GMC
improper racial animus on the part of the defendants, prevented him from attaining the position he
desired.
II. Racial Discrimination in the Denial of a Journeyman Carpenter’s Card
Similarly, Hunter did not file a motion for new trial challenging the finding of the jury that
race played no factor in the decision of Local 549 and Ron Willis not to issue the plaintiff a
journeyman carpenter’s card. Thus, we are also precluded from addressing this issue on appeal. See
Pennington, 202 F.3d at 911. Even if we were to consider the claim, however, we would hold that
Hunter is entitled to no relief. The appellate record is uncontradicted that Hunter failed to comply
with repeated requests to provide information about his prior employment that the decision-maker
found necessary to determine the plaintiff’s qualifications for receipt of the journeyman carpenter’s
card.
III. Use of Hunter’s Income Tax Returns to Impeach Credibility
During cross-examination, Hunter testified that the atmosphere at the Mansfield plant was
permeated with racism and that such a situation posed a problem for him. Abruptly, counsel for
General Motors then asked, “Mr. Hunter, is it something that would be as significant to you as
declaring no income on your income tax?” Subsequently, the court admitted into evidence a copy
of the plaintiff’s 2000 federal income tax return on which Hunter claimed no income whatsoever.
The plaintiff now contends that admission of that evidence was improper because he was unfairly
surprised by the fact that the defendants had obtained such information, because the evidence was
more prejudicial than probative, because the evidence was irrelevant to the issue of Hunter’s
-6-
Nos. 03-3797/03-3883
Hunter v. GMC
character, and because use of the information violated the plaintiff’s Fourth and Fifth Amendment
rights.
We review allegations of error in the evidentiary rulings of a trial judge only for an abuse of
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). We find no such abuse present
here. Hunter’s assertions that he was unfairly surprised by the cross-examination and that the
defense’s possession of the information contravened constitutional principles are without merit.
Indeed, General Motors’s attorney, without objection or contradiction from the plaintiff, indicated
that he received the contested documents from Hunter himself during the discovery process in
response to the defense’s request for production of documents. Additionally, despite any prejudicial
effect that the introduction of the tax return might have had upon the jury, the district judge correctly
ruled that the evidence also was probative of Hunter’s truthfulness. Pursuant to the provisions of
Federal Rule of Evidence 608(b), cross-examination may delve into specific instances of conduct
of the witness if probative and if that conduct concerns “the witness’ [sic] character for truthfulness
or untruthfulness.” Because Hunter knew that he had received a substantial salary during the
relevant tax year, yet failed to claim such a taxable source of income, the return did indeed reflect
upon the plaintiff’s truthfulness and was, therefore, admissible at trial.
IV. Jury Instructions Not Given to the Finders of Fact
In multiple allegations of error, Hunter also contends that the district judge erred in failing
to give certain instructions to the jury. Specifically, he asserts that the court should have informed
the finders of fact about the legal elements of claims involving a hostile work environment, a union’s
refusal to represent its members, and an employment decision based upon mixed motives.
-7-
Nos. 03-3797/03-3883
Hunter v. GMC
Hunter, however, either explicitly or tacitly abandoned both his hostile work environment
and breach of duty of fair representation claims. A court need not deliver instructions relevant to
claims that are not raised or prosecuted by the litigants.
Moreover, our prior decisions make clear that no reversible error was committed by the
failure of the district judge to offer a mixed motive jury instruction. When alleging that mixed
motives were involved in an employment decision:
[T]he plaintiff must produce direct evidence that the employer considered
impermissible factors when it made the adverse employment decision at issue. Once
the plaintiff has shown that the unfavorable employment decision was made at least
in part on a discriminatory basis, the burden shifts to the employer to prove by a
preponderance of the evidence that it would have taken the same adverse action even
if impermissible factors had not entered into its decision.
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 571 (6th Cir. 2003) (en banc) (emphasis added)
(citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). In this case, the only direct evidence
of discrimination to which Hunter points is the alleged statement of Ron Willis prior to the
interviews for the employees-in-training program “that five whites had retired, and he was going to
put five whites back in.” Focusing upon that comment, Hunter argues that his attempt to gain entry
into the coveted program was sabotaged, at least in part, by improper racial animus. Willis’s
comment cannot, however, support a mixed motive cause of action against General Motors, the
ultimate decision-maker for the employees-in-training program, because Willis was acting as a
representative of the union, not the company, in his participation in the interviewing process.
V. McDonnell Douglas Jury Instruction
-8-
Nos. 03-3797/03-3883
Hunter v. GMC
In a final appellate issue, Hunter argues that the district court erred in instructing the jury
regarding the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The plaintiff himself, however, requested that such an instruction be given at trial.
Except when, in the discretion of the appellate court, the interests of justice demand otherwise, a
party will not be heard to complain about any action that he invited. See United States v. Barrow,
118 F.3d 482, 490-91 (6th Cir. 1997). This appeal presents no such justification for abandonment
of the invited error doctrine.
CONCLUSION
This appellate record establishes that the plaintiff was excluded from desirable carpentry
programs at General Motors’s Mansfield plant because he was the least qualified of the applicants
and because of his own failure to comply with requests for production of necessary information, not
because of his race or age. Finding no reversible error in any of the issues presented by the plaintiff,
we AFFIRM the judgment of the district court.
-9-