United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1049

___________ Kenneth L. Anderson, * * Appellant, * Appeal from the United States * District Court for the District of v. * Nebraska. * Genuine Parts Company, Inc., * * Appellee. *

___________ Submitted: September 10, 1997 Filed: November 14, 1997

___________ Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

___________ BRIGHT, Circuit Judge. Kenneth Anderson worked as an "outside" sales representative for G enuine Parts Company (GPC) until GPC demoted him to an "inside" sales po sition, at a significantly red ucedwage. Anderson initially accepted the demotion, but later resigned an d broug ht this action under the Age Discrimination in Employment Act, 29 U.S.C. § § 621- 34 (ADEA), and the Nebraska Act Prohibiting Unjust Discrimination i n Empl oyment

Because of Age, Neb. Rev. Stat. §§ 48-1001 to 1010 (1993). A jur y returned a verdict of dismissal in favor of GPC and the district co urt denied Anderson’s-2-

motions for a new trial and for judgment as a matter of law. Anderson then brought this appeal.
Anderson asserts the district court erred in: (1) excluding evidence of GPC’ s perso nnel policies and the jury verdict in the prior successful age discrimination sui t against GPC by another older outside sales representative of the company; (2) denying his motion for judgment as a matter of law based on the theory of issue preclusion; and (3) excluding instruction on general damages under the Nebraska age discriminatio n statute. We affirm.
I. BACKGROUND Genuine Parts Company (d/b/a NAPA Auto Parts) is engaged in the business of retail and wholesale sales of automotive replacement parts. In Omaha, Nebraska, GPC has a distribution center and six branch stores. Dale King serves as the local manager responsible for the GPC stores in Omaha, Nebraska and Council Bluffs, Iowa. King su pervises the store managers and outside sales force. Al Alexander, the genera l manager, oversees the sales and operation of the distribution center and GPC-owned stores for the Omaha operation. In mid-December, 1992, Alexander met with his sup ervisors in Atlanta, Georgia and was directed to elimi nate two positions from his "outside" sales force. Alexander testified that upon his return to Omaha he directed King to identif y and recommend two "outside" sales representatives for demotion. On January 7, 1993, Alexander and King met with Kenneth Anderson and Larry Maschka, in separate meetings, and advised them that GPC was removing them from the "outside" sales force and demoting them to "inside" sales positions at a substantially reduced pay. GPC gave both men several days to consider whether they wanted the “inside” positions. Both men accepted the new job assignments. GPC gaveGPC conceded that two recen tly-hired outside representatives, David Zenchuk 1 and D avid Muellner, had poorer sales performances than Maschka and Anderson

. Ho wever, GPC maintains that Zenchuk was quickly increasing his sales volume at a rate in w hich Zenchuk would soon surpass both Maschka and Anderson's sale s volumes. In addition, GPC claims that it did not consider Muellner for demotio n because Muellner was an automotive paint specialist and GPC had set a goal o f expanding its sales in the automotive paint market. -3- "reduct ion-in-force" reasons for the demotion and asserted reasons for selectin g Anderson and Maschka as the most appropriate persons to be removed from the outside sales fo rce. Specifically, GPC claimed that Maschka and Anderson's sale s performances were not as promising as other outside sales representatives. 1
Anderson and Maschka were the two oldest and most senior of the nine outside sales re presentatives. Anderson and Maschka began working for GPC in 1959 an d 1956, respectively. In 1991, GPC added two ne w outside sales representatives, David Muellner and David Zenchuk, both of whom are less than forty years old. Maschka resigned his employment with GPC in April 1993 and went to work for Art’s Auto Parts as an outside sales representative. Anderson re signed his employment with GPC in May of 1993 and also went to work for Art’s Auto Parts as an outsid e sales repre sentative. In his resignation letter to GPC, Anderson claimed that h e c o nsidered his termination of employment to be a constructive discharge, stating that he was forc ed to leave the company or suffer a substantial decrease in retiremen t benefits. Both A nderson and Maschka filed separate age discrimination actions

. Maschka's age discrimination action was tried in March of 1996, resulting in a verdict in Maschk a’s favor. Specifically, the jury found GPC liable for age discrimination , determined that GPC's action was wilful, and found that GPC construc tively discharged-4-

Maschka from his employment. We affirmed the judgment in Maschka

. Maschka v. Genuine Parts Co. , 122 F.3d 566 (8th Cir. 1997).
Follow ing the jury's verdict in the Maschkacase and shortly before trial i n Anderson's case, GPC filed a motion in limine, req uesting exclusion of certain portions of the GPC personnel manual regarding layoffs and termination from employment. The distri ctcourt conditionally granted GPC’s motion based on the district court’ s concl usionthat the parties had stipulated in the uncontroverted facts of the Pretria l Or der that Anderson was demoted. The district court reasoned that only provision s regardi ng demotions in the personnel manual would be relevant to Anderson's case

. Howe ver, the manual did not contain any provision specifically applicable t o demotions.
A n derson’s case came to trial in October of 1996. After the close of all of the evidence and prior to the submission of the case to the jury, Anderson requested that the district court enter judgment for plaintiff Anderson, as a matter of law consisten t with the judgment entered in Maschka’s action against GPC. Anderso n’s motion relied upo n the doctrine of issue preclusion, asserting that GPC, having lost on the ag e discrimination claim in Maschk a , should be bound to that determination in Anderson's ca se. The district court denied Anderson's motion. The jury returned a verdict o f dismissal in favor of GPC. Anderson moved for a new trial and renewed his motion for judgment as a matter of law, both of which the district court denied. Anderson then brought this appeal from the adverse judgment.
II. DISCUSSION
A. Exclusion of GPC’s Personnel Policies and Judgment in Maschka
Ande rson contends that the district court erred by not allowing Anderson t o submit evidence of GPC’s personnel policies and the judgment entered in the Maschka-5-

case. We revi ew the district court's denial of a motion for a new trial and it s evidentiar y rulings under an abuse of discretion standard. Schultz v. McDonnel l Doug las Corp. , 105 F.3d 1258, 1259 (8th Cir. 1997). Additionally, the standard fo r consid ering a request for a new trial is whether the exclusion of the evidence was i n error and "affected the substantial rig hts of any party sufficient to warrant a new trial." O'Dell v. Hercules, Inc. , 904 F.2d 1194, 1200 (8th Cir. 1990).

1. GPC's personnel policy manual in its entirety, GPC's layoff policy, and GPC's termination policy and checklist T he district court found that because Anderson’s claim involved a “demotion” rath er than a “termination” or “layoff,” the jury should only consider those policie s dealing with demotion. The district court based this determination on the parties ' stipulations in t

he Pretrial Order. Specifically, in paragraph 7 of the “Uncontroverted Facts” of the Pretrial Order, the parties stipulated t o the following statement: “Plaintiff was notified by the Defendant effective January 1, 1993 [that] Plaintiff was demoted to the position of a Counter Employee. . . .” Jt. App. at 61. Furthermore, during trial, the following exchange occurred: THE COURT: . . . Are we talking ab out demotion, are we talking about -- just what are we talking about? . . . MR. YOUNG: I agree, your Honor. The position of the plaintiff is this: We agreed that there was a demotion. Jt. App. at 469. Anderson argues that notwithstanding this exchange and the Pretrial Order, the par ties’ pleadings made it clear that this case involved the issues of termination an d layoff, as well as demotion. Also, Anderson submits that Alexander and King both testified that Anderson was merely offered the i nside sales position rather than ordered-6-

to acc ept the new position. According to Anderson, this testimony shows tha t Anderson was terminated and then offered a new position, rather than demoted. Anderson further argues that the exclusion of this evidence undu ly prejudiced his ca se. Anderson argues that the termination policy and termination checklist woul d have shown that GPC did not follow their own termination policy . Anderson notes that the personnel manual contained a voluntary and involuntary layoff policy that required GP C to terminate first those with the least seniority. Anderson maintains that thi s layoff p olicy in the personnel manual sets the general objective criteria to determin e which pe rsons should be removed during a layoff. According to Anderson, had thi s policy been followed, the two least senior sales representatives, Ze nchuk and Muellner, would have been removed (Zenchuk and Muellner are both in their thirties and had the lowest dollar sales volumes for 1991 and 1992).
In our view, the district court's ruling did not constitute an abuse of discretion. The P retrial Order supersedes all previous pleadings and “control[s] the subsequen t co urse of the action unless modified by a subsequent order.” Fed. R. Civ. P. 16(e)

. This court has previously ruled that, “'[t]he pretrial order measures the dimensions of a lawsuit.'" Hale v. Firestone Tire & Rubber Co. , 75 6 F.2d 1322, 1335 (8th Cir. 1985) ( quoting S eneca Nursing Home v. Secretary of Social & Rehabilitation Servs. o f Kans as , 604 F.2d 1309, 1314 (10th Cir. 1979)). "Accordingly, a party may not offer evidence or advance theories during trial which violate the terms of a pretrial order.” Hale , 756 F.2d at 1335 ( citing United States v. First Nat'l Bank of Circle , 652 F.2d 882, 886 (9th Cir. 1981)). We therefore conclude that the district court did not err in relying on the Pretrial

Order in defining the parameters of this trial and excluding termination policies as irrelevant. Moreover, Anderson offered no foundation evidence to sho w that GPC had previously foll owed termination policies when making other demotions. Thus, GPC's termination policies may well have been unduly prejudicial. See Fed. R. Evid. 403. Thus, the district court's determination to exclude this evidence did no t constitute prejudicial error.Anderson's contention with respect to GPC's discip linary policy differs from his 2 other evidentiary arguments because the distri ct court ultimately did allow him to enter the policy into evidence. However, Anderson argues t hat because the district court did not allow him to introduce the disciplinary policy until the end of his rebuttal case, he suf feredprejudice because he could not use the policy to more effectively cross

examine King. -7-

2. GPC's performance appraisal policy and GPC's disciplinary policy GPC's performance appraisal policy requires management to evaluate an d document each employee's performance and to establish an "action plan," which i s agreedupon by management and the employee. Similarly, GPC's disciplinary policy als o sets forth a progressive systematic method for correcting employee deficiencies. Anderson argues that GPC's performance appraisal policy and GPC's discipli nary policy would have discredited King's testimony of Anderson's alleged performanc e

2 deficiencies, since King had never documented any significant d eficiency in Anderson's perform ance. In addition, Anderson asserts that GPC never documented any attempt to improve Anderson's performance.
Ander son's argument that these policies were relevant for the purpose o f challengi ng King's assertions has some merit. Nevertheless, the theory of GPC' s defense and the focus of King's testimony, which apparently the jury accepted, wer e that Anders on was demoted as part of a reduction-in-force. To implement th e reduction-in- force, GPC assessed Anderson's performance and potential performance in relation to other ou tside sales representatives rather than GPC's sales requirements. Th erefore, Anderson's performance as compared to company goals and requirements is arguably irrelevant. Accordingly, we conclude that the district court's rulings with res pectto the performance appraisal policy and the disciplinary policy did no t constitute reversible error.GPC's Affirmative Action Program requires "each operating unit" to maintain 3 certain minority status information regarding its employees. Jt. App. at 265-66

. However, t he policy requires each operating unit to keep information on onl y app licants, recently-hired employees, recently-promoted employees, and recently

terminated employees. Furthermore, with respect to those four categories, th e affirma tive action program requires each operating unit to only record data that i s relevant to race, sex, disability, and veteran status. Id. Accordingly, we do no t consider this policy to require GPC's management to be fully aware of the age of each of its employees before implementing a demotion. -8- 3. GPC's anti-discrimination policies
The distri ct court did not allow Anderson to enter into evidence GPC’s anti

discriminationpolicies. GPC has three separate anti-discrimination policies, whic h consist of an equal employment opportunity policy, an affirmative action policy, and an affirmative action program. GPC's anti-discrimination policies, for the most part , profess GPC's commitment to follow the requirements and restrictions of federal and state an ti-discrimination statutes. Anderson argues that GPC’s policy would hav e 3 discredited Alexander's testimony that he never rea lized that King had selected the two oldest and most senior em

ployees for demotion. In our view, this contention does not amoun t to prejudicial error. GPC's decision to profess its willingness in its polic y manu al to follow federal and state anti-discrimination laws would not necessaril y indicate that one of its managers was aware of the fact that the two oldest outside sales people were being demoted. We therefore conclude that the district court's ruling did not constitute reversible error.

4. Verdict in the Maschka caseWh en using the former testimony from the Maschkacase for impeachmen t 4 purposes, Anderson was only allowed to refer to the case as “another proceeding.” -9- At trial, the district court allowed Anderson to use prior testimony from th e Maschka case only for the purpose of impeac hing GPC's witnesses. Anderson argues 4 that he should have been allowed to inform the jury that the Maschkajury found that GPC committed age discrimination against Maschka. Anderson asserts that prior acts of discrimination by an employer are relevant evidence in discrimination actions

. Ander son relies on Hawkins v. Hennepin Tech. Ctr. , 900 F.2d 153 (8th Cir.), cer t denied , 498 U.S. 854 (1990). In Hawkins , this court stated that “[b]ecause a n employer’ s past discriminatory policy and practice may well illustrate that th e empl oyer’s asserted reasons for disparate treatment are a pretext for intentiona l discrimination, this evidence should normally be freely admitted at trial .” Id. at 155-56 (citations omitted). We fully endorse what this court has stated in Hawkins and in other c ases, which is that allowing evidence of past discrimination is necessary to assist plaintiffs in the difficul t burden of proving intentional discrimination. An employer's prior acts o f discriminationmay show the employer's state of mind at the time of the advers e employment action in question.
However , a jury verdict does not constitute evidence. Rather, a jury's verdic t simply represents findings of fact, based on the evidence presented to it. Upo n rev iewing the trial record, we note that the district court allowed Anderson ampl e opportunities to present to the jury facts surrounding GPC's demotion of Maschka. In fact, Masc hka testified at Anderson's trial about GPC's adverse treatment of both Anderson and Maschka. Furthermore, the district court allowed Anderson to cross

exa mineGPC's witnesses about GPC's treatment of Maschka. Accordingly, w e conclude that the district court did not commit reversible error by excluding the jury's verdict in the Maschkacase.-10-

B. Issue Preclusion
And erson argues that the district court erred in not granting his motion fo r judgment as a matter of law based on the d octrine of issue preclusion. The doctrine of issue preclusion, which was formerly known as collateral estoppel, provides that "when an issue of ulti mate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in another lawsuit.” United States v. Brekke , 97 F.3d 1043, 1049 (8th Cir. 1996) (citations om itted). Under this doctrine, a court must examine

the following five factors to determine whether issue preclusion applies to a particular case: (1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit; (2) the issue sought to be precluded must be the same as the issue involved in the prior action; (3) the issue sought to be precluded must have been actually litigated in the prior action; (4) th e issue sought to be precluded must have been determined by a vali d and final judgment; and (5) the determination in the prior action must have been essential to the prior judgment.
Tyus v. Schoemehl , 93 F.3d 449, 453 (8th Cir. 1996).
An derson maintains, and GPC does not dispute, that four of the five factors-

- na mely factors 1, 3, 4, and 5--unquestionably weigh in favor of Anderson's claim t o issue preclusion in the present case.-11-

An derson further argues that factor 2 also weighs in favor of issue preclusio n because the issues determined by the jury’s verdict in Maschkaare essentially identical to the issues in Anderson’s case. In support o f his argument, Anderson cites the Tenth Circuit opinion of Meredith v. B eech Aircraft Corp. , 18 F.3d 890 (10th Cir. 1994). In Mere dith , the Tenth Circuit applied issue preclusion to prevent Beech Aircraft fro m asser ting that its actions in promoting a male were motivated by nondiscriminatory reasons because a jury, in a prior suit by another female co-employe e, found that Beech Aircraft had discriminated by promoting the male in question. Id. at 894.
We determine that M eredith is distinguishable. In the initial sex discrimination case against Beech Airc raft, the jury found in favor of the female plaintiff because the ju ry determined Beech Aircraft had promoted, in a discriminatory manner, on e particul ar male over other female employees. Id. Therefore, Beech Aircraft' s discrimination in promoting the male employee over femal e employees was established by the jury in the first trial. Consequently, in the second proceeding where a second fe male employee sued over the same promotion decision, Beech Aircraft could no t reliti gate the issue of its discrimination in promoting the male employee over femal e employees. In contrast, the jury's finding of age discrimination in Masc hka's demotion would not nec essarily eliminate any nondiscriminatory reasons GPC could assert or the jury could find relating to the separate decision to demote Anderson. Although w e recognize the numerous similarities between the present case and the Maschkacase, and the d istinct possibility that GPC demoted both men for the same reason, w e nevertheless conclude that the district judge, who presided at both trials, did not abuse his discretion in finding that the two cases were different. We agree with the district court's asses sment that "[d]iscrimination claims are in and of themselves very factual, and, consequently, . . . applying the doctrine of issue preclusion to situations such as that in Anderson is inappropriate." See Jt. App. at 189.-12-

C. Exclusion of General Damages Jury Instructions
Anderson raises a final issue relating to the district court's refusal to submit to the jury, or even allow evidence, of Anderson’s claim for general damages under the Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age. This very ar gument, however, was rejected by this court in Maschka's appeal. Maschka , 122 F.3d at 5 68. For the reasons stated in Maschka , we similarly reject Anderson' s contention.
IV. CONCLUSION
The exclusion of evidence noted in t his opinion falls into the realm of discretion by th e district court. We recognize that another trial judge might have admitted th e questioned evidence over objection. Indeed, some of the excluded evidence wa s admitted in the Maschka

case by the same district judge. N evertheless, under an abuse of discretion standard o n evidentiary matters such as presented in this appeal, the trial judge po ssesses the prerogative to admit or not admit the evidence. Accordingly, we affirm. A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.