NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0108n.06
Filed: February 10, 2009
No. 07-6050
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT BRYSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
CITY OF CLINTON, TENNESSEE, and JAMES S. ) THE EASTERN DISTRICT OF
JONES, Individually and as City Manager for Clinton, ) TENNESSEE
Tennessee, )
)
Defendants-Appellees. )
Before: BOGGS, Chief Judge; KETHLEDGE, Circuit Judge; and THAPAR, District Judge.*
KETHLEDGE, Circuit Judge. Former City of Clinton, Tennessee (“City”) police officer
Robert Bryson appeals the district court’s judgment following a defense verdict on his age-
discrimination claims. Bryson challenges various evidentiary rulings and jury instructions. We
affirm.
I.
A.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 07-6050
Bryson v. City of Clinton, Tennessee
On January 10, 2004, Bryson was on patrol when he encountered a bleeding and intoxicated
man, Michael Manford, who had apparently been involved in a car accident. Bryson did not arrest
Manford, but drove him to the police station to question him further about the accident.
There, Deputy Darryl Chapman asked Bryson whether he had any charges against Manford.
Bryson indicated that he did not. Chapman apparently decided, however, that Manford should be
charged with an unspecified offense. At that point, Manford became “extremely belligerent[,]”
swearing at the officers. Bryson then told Manford he was under arrest, but Manford resisted. Other
officers came to assist, spraying Manford with pepper spray and striking him in the back of his leg
with an asp. He was eventually subdued.
The City’s Chief of Police, Richard Scarbrough, later directed Sergeant Larry Miller to
conduct an internal-affairs investigation of the incident. Miller interviewed Bryson and asked,
among other things, whether Chapman had in fact asked Bryson prior to the arrest if Bryson had any
charges against Manford. Bryson said he did not recall whether Chapman had asked him that.
Miller thereafter prepared an investigation report in which he concluded, based solely on this
response, that Bryson had been “untruthful” in the interview. Scarbrough reviewed the report and
recommended to the City Manager, James Jones, that Bryson be terminated. Jones reviewed the
report and terminated Bryson.
B.
Bryson was 40 years old when the City fired him. He filed a complaint against the City and
Jones, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626 et seq.
(ADEA). The case thereafter proceeded to trial. The jury rejected the City’s proffered justification
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No. 07-6050
Bryson v. City of Clinton, Tennessee
for terminating Bryson—that Bryson lied to the internal-affairs investigator—and submitted the
following “statement” with its verdict form:
The Jury believes Robert Bryson told the truth during the Clinton Police
Department’s Internal Investigation and that his testimony during this case was
honest and forthcoming. The Members of the Jury urge Judge Varlan to enter this
statement into the Public Record of this trial as a first step toward restoring Mr.
Bryson’s credibility as a Police Officer.
Nonetheless, the jury found no age discrimination, and returned a verdict for the City.
This appeal followed.
II.
A.
Bryson challenges certain of the district court’s evidentiary rulings. We review those rulings
for an abuse of discretion. Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004).
Bryson argues that the district court erred in admitting evidence of Jones’s lack of
discriminatory intent. He asserts that Jones, the City Manager, “was not the actual decision-maker
but was merely a conduit for the recommendation” of Chief Scarbrough, who in turn relied on
Miller’s investigation report. Appellant’s Br. at 31. Bryson thus argues that Jones’s intent was
irrelevant. Id. at 34-35.
It is undisputed, however, that Jones was responsible for the hiring and firing of all City
employees. Jones was in fact the person who fired Bryson. Evidence of Jones’s intent, therefore,
was relevant. Bryson himself alleged in his complaint that Jones unlawfully terminated him because
of his age. That Scarbrough’s intent, or Miller’s, might have been more relevant does not change
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No. 07-6050
Bryson v. City of Clinton, Tennessee
the fact that Jones’s intent was relevant as well. The district court did not abuse its discretion on this
point.
Bryson next argues that the district court erred in admitting evidence that 64% of the City’s
employees were over age 40, and that the City hired a training-patrol officer over age 40 after
terminating Bryson. Bryson argues that the probative value of this evidence “was non-existent, and
the prejudice was overwhelming,” because, he says, these other employees were not similarly
situated to him as a patrol officer. Appellant’s Br. at 35.
We disagree with Bryson’s assessment of this evidence. That a majority of the City’s
workforce is over age 40 does suggest, at least as a general matter, that the City does not discriminate
against people over that age. So too does the fact that the City hired a training-patrol officer over
age 40. It is true that other evidence might be more probative of whether the City discriminated
against Bryson. But under the broad definition of relevance in Rule 401—“evidence having any
tendency to make the existence of any fact . . . more probable or less probable than it would be
without the evidence”—this evidence was relevant. Moreover, its prejudice was minimal. Bryson
cross-examined Jones with the very criticisms he advances here, and introduced evidence of the age
composition of the police force generally and its patrol officers specifically. The district court’s
admission of the cited evidence therefore did not violate Rule 403.
B.
Bryson next challenges two jury instructions. We review instructions “as a whole to
determine whether they fairly and adequately present the issues and applicable law to aid the jury
in making its determination.” Micrel, Inc. v. TRW, Inc., 486 F.3d 866, 880-81 (6th Cir. 2007). The
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No. 07-6050
Bryson v. City of Clinton, Tennessee
“correctness of jury instructions is a question of law, which we review de novo,” id. at 881, but “[w]e
review for abuse of discretion a district court’s refusal to give requested jury instructions.” Williams
v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir. 2005).
Bryson argues that the district court erred in instructing the jury that “the plaintiff has the
burden of establishing by a preponderance of the evidence . . . that age played a determining factor
in the defendant’s decision to terminate his employment[.]” He argues that the district court instead
should have instructed the jury that he could recover if age was a “motivating factor.” Appellant’s
Br. at 50.
The district court’s instruction was correct. The cases Bryson cites in support of a
motivating-factor instruction applied a different statute—42 U.S.C. § 2000e-2(m)—than the one at
issue here, which is the ADEA. To recover under the ADEA, a plaintiff “must prove that age was
a determining factor in the adverse employment action that the employer took against him.” Phelps
v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993) (emphasis added); see also Allen v. Highlands
Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008). The district court’s jury instructions were entirely
consistent with that rule.
Bryson next argues that the district court erred in rejecting his proposed pretext instruction.
He argues the instruction should have made clear to the jury that “it was free to find for the Plaintiff
based solely upon its disbelief of the non-discriminatory justifications offered by the Defendant.”
Appellant’s Br. at 49. The proposed instruction read as follows:
Proof that an employer’s explanation for an employment decision is unworthy of
belief is one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.
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No. 07-6050
Bryson v. City of Clinton, Tennessee
Once an employer’s justification has been eliminated, discrimination may well be the
most likely alternative explanation, especially since the employer is in the best
position to put forth the actual reason for its decision.
When all legitimate reasons for an employment decision have been eliminated as
possible reasons for the employer’s actions, it is more likely than not that the
employer, who it is generally assumed acts with some reason, based its decision on
an impermissible consideration.
This language is lifted largely verbatim from the Supreme Court’s opinion in Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But judicial opinions and jury
instructions are two different things. An opinion excerpt, taken out of context, might well be
understood by a jury to tell them what they must do, and not simply whether they may do it. Such
is the case here: Reeves held “it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation.” 530 U.S. at 147 (emphasis in
original). But Bryson’s proposed instruction suggests the jury would have been compelled to make
that finding.
The district court instead instructed the jury that, if it found “that the reasons given by the
defendant for plaintiff’s discharge were a pretext for age discrimination, then your verdict should
be for the plaintiff.” (Emphasis added.) The court explained that Bryson could prove pretext for age
discrimination “by showing: that the reasons have no basis in fact; that the reasons have a basis in
fact, but they were not the actual factors motivating the defendant’s decision to discharge the
plaintiff; or, that if the articulated reasons were factors, these reasons are insufficient to have
motivated the defendant’s conduct.” The court’s instructions thus did precisely what Reeves
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requires: they permitted, but did not compel, the jury to infer age discrimination from a finding of
pretext.
We sympathize with Bryson’s plight in this case. The jury indeed found the reasons for his
dismissal to be pretextual; specifically, it “believe[d] Robert Bryson told the truth during the Clinton
Police Department’s Internal Investigation[.]” The reason offered for Bryson’s termination, in other
words, was a pretext for something; but the jury chose to find that the something was not age
discrimination. The jury was entitled to know that it could make that choice.
The district court’s judgment is affirmed.
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