UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20007
Summary Calendar
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HENRY J. HARRINGTON, JR.,
Plaintiff-Appellant,
versus
SUN LIFE ASSURANCE COMPANY OF CANADA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-1908)
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November 7, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIUM:1
Henry J. Harrington challenges an adverse judgment, following
a jury trial, in his age discrimination suit, grounding error on
the exclusion of statistical and anecdotal evidence. We need not
address his contention that the general category of statistical and
anecdotal evidence, which he sought to admit, is admissible in
ADEA2 cases, because we conclude that, even assuming error, it was
1
Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
2
Age Discrimination in Employment Act, 29 U.S.C. §621, et seq.
harmless in light of the minimal value of the evidence compared to
the overwhelming evidence that the employer's stated rationale for
dismissing Harrington was the true motivation for its actions.
Accordingly, we AFFIRM.
I.
Harrington was employed by Sun Life Assurance Company of
Canada. Since receiving a promotion in 1984, he served as the
Group Manager of the company's Houston Group Office, and was
responsible for hiring and training Sun's sales force in Houston
and for running the Houston Group Office.
Harrington was dismissed in June 1991 by Sun vice president
James McNulty, who told Harrington that the decision was based,
inter alia, on his poor performance and attitude. This was the
nondiscriminatory reason proffered by Sun at trial as well.
At trial, Harrington, who was 47 years of age when terminated,
sought to introduce statistical and anecdotal evidence purporting
to demonstrate at Sun a pattern of discrimination based upon age.
None of this evidence was based upon, or directly illustrative of,
Harrington's employment experience; and the court ruled it
irrelevant and prejudicial. Specifically, the court noted that it
was troubled by the fact that, among the 14 people to be
characterized as examples of a pattern of age-motivated dismissals,
were four to six who had taken early retirement. After visiting
the question several times, and extensively, during the trial, the
court noted that exclusion of unduly prejudicial evidence was
within its discretion and ruled that it would not admit it.
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At the conclusion of the five-day trial, the jury found, in
response to a special interrogatory, that Sun's stated
nondiscriminatory reason for terminating Harrington's employment
was not a pretext; judgment was entered for Sun.
II.
Harrington asserts that the trial court erroneously excluded
evidence.3 We review evidentiary rulings for abuse of discretion.
Harpring v. Continental Oil Co., 628 F.2d 406, 410 (5th Cir. 1980),
cert. denied, 454 U.S. 819 (1981); Fed. R. Civ. P. 103. Of course,
a finding of harmless error obviates the need to consider whether
error occurred. See Fed. R. Evid. 103; Fed. R. Civ. P. 61.
As is well known, the plaintiff in an age discrimination
action must first make a prima facie case; then, if the employer
articulates a legitimate nondiscriminatory reason for terminating
his employment, he must counter it with evidence that the reason is
untrue and a pretext for discrimination. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). The shifting
described in Burdine is useful primarily for considering judgments
as a matter of law. Once the jury was given the case, the question
was simply whether Harrington satisfied his burden of
demonstrating, by a preponderance of evidence, that his dismissal
was illegally motivated by age.
Upon review of the evidence and Harrington's arguments for
admitting the excluded evidence, we conclude that the excluded
3
The EEOC's motion for leave to file an untimely amicus brief
is GRANTED.
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evidence could not have meaningfully buttressed Harrington's case,
and that Sun's evidence that Harrington was dismissed because he
failed to live up to Sun's changing needs was overwhelming.
Therefore, as shown below, we conclude that the error, if any, was
harmless.
Some of the excluded evidence dealt with six ADEA actions
against Sun. Harrington asserted that, by introducing, inter alia,
Sun's answers to interrogatories filed in those actions, he could
establish willful or reckless disregard for the ADEA's
requirements. But, Sun, of course, was willing to stipulate its
awareness of the ADEA's provisions.
Harrington also attempted to enter evidence regarding the
above-noted early retirement agreements, which the court excluded
because none of them related directly to Harrington.
Finally, Harrington was not allowed to present testimony by
two witnesses concerning their employment at Sun and their belief
that it reflected age discrimination. The court ruled, after
hearing the testimony outside the jury's presence, that the
evidence was inadmissible; it had earlier so ruled.
Harrington did introduce evidence that his past performance
with Sun had garnered him awards and positive feedback from
supervisors. This evidence included a 1990 letter referring to his
effort to increase area sales, but which did not refer to his
personal sales.4 Harrington also offered evidence that profits in
4
According to Sun's evidence, Harrington had only one new case
in the third quarter of 1990.
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the Houston group increased in 1990, and presented testimony by a
former Sun employee that Harrington's attitude and work ethic were
praised at Sun.
But, Sun's position at trial was that Harrington's work ethic
and attitude, particularly regarding his personal sales
responsibilities, were poor at the time of his June 1991 dismissal.
Harrington's evidence, because it bore on his performance either
before McNulty was hired in March 1990 to improve Sun's
profitability, or on aspects of Harrington's performance other than
those McNulty found paramount in his effort to revamp Sun's
profitability, did not undermine Sun's proffered reason for
termination. Harrington's lack of success in meeting McNulty's
standards, adopted to make management more responsible for the
sales generated by their departments and for personal sales
performance, was not refuted by Harrington's evidence -- either the
admitted or the excluded.
By contrast, Sun introduced extensive evidence that
Harrington's work was not satisfactory at the time of his
dismissal. McNulty testified at length about his plan for the
company, and why Harrington's performance was unacceptable given
that plan to make Sun more profitable. Moreover, Harrington
admitted on cross that his personal sales had decreased; that his
office's proposal output had dropped, as had its generation of
prospects; that he had not considered making out-of-the-office
calls to be a significant priority; and that his supervisor was
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concerned about Harrington's low personal production, and had
notified Harrington of this concern.
III.
In sum, we conclude that, on the record from this jury trial,
the error, if any, was harmless. Accordingly, the judgment is
AFFIRMED.
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