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. *

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Submitted: September 10, 1997

Filed: November 14, 1997

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Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Kenneth Anderson worked as an "outside" sales representative for Genuine Parts

Company (GPC) until GPC demoted him to an "inside" sales position, at a significantly

reduced wage. Anderson initially accepted the demotion, but later resigned and

brought this action under the Age Discrimination in Employment Act, 29 U.S.C. §§

621-34 (ADEA), and the Nebraska Act Prohibiting Unjust Discrimination in

Employment Because of Age, Neb. Rev. Stat. §§ 48-1001 to 1010 (1993). A jury

returned a verdict of dismissal in favor of GPC and the district court denied Anderson’s
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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

personnel policies and the jury verdict in the prior successful age discrimination suit

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 discrimination

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

supervises the store managers and outside sales force. Al Alexander, the general

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 supervisors in Atlanta, Georgia

and was directed to eliminate two positions from his "outside" sales force. Alexander

testified that upon his return to Omaha he directed King to identify 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 gave
GPC conceded that two recently-hired outside representatives, David Zenchuk 1

and David Muellner, had poorer sales performances than Maschka and Anderson.

However, GPC maintains that Zenchuk was quickly increasing his sales volume at a

rate in which Zenchuk would soon surpass both Maschka and Anderson's sales

volumes. In addition, GPC claims that it did not consider Muellner for demotion

because Muellner was an automotive paint specialist and GPC had set a goal of

expanding its sales in the automotive paint market. 

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"reduction-in-force" reasons for the demotion and asserted reasons for selecting

Anderson and Maschka as the most appropriate persons to be removed from the outside

sales force. Specifically, GPC claimed that Maschka and Anderson's sales

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 representatives. Anderson and Maschka began working for GPC in 1959 and

1956, respectively. In 1991, GPC added two new 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 resigned his employment

with GPC in May of 1993 and also went to work for Art’s Auto Parts as an outside

sales representative. In his resignation letter to GPC, Anderson claimed that he

considered his termination of employment to be a constructive discharge, stating that

he was forced to leave the company or suffer a substantial decrease in retirement

benefits. 

Both Anderson and Maschka filed separate age discrimination actions.

Maschka's age discrimination action was tried in March of 1996, resulting in a verdict

in Maschka’s favor. Specifically, the jury found GPC liable for age discrimination,

determined that GPC's action was wilful, and found that GPC constructively discharged
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Maschka from his employment. We affirmed the judgment in Maschka. Maschka v.

Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997).

 

Following the jury's verdict in the Maschka case and shortly before trial in

Anderson's case, GPC filed a motion in limine, requesting exclusion of certain portions

of the GPC personnel manual regarding layoffs and termination from employment. The

district court conditionally granted GPC’s motion based on the district court’s

conclusion that the parties had stipulated in the uncontroverted facts of the Pretrial

Order that Anderson was demoted. The district court reasoned that only provisions

regarding demotions in the personnel manual would be relevant to Anderson's case.

However, the manual did not contain any provision specifically applicable to

demotions. 

Anderson’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 consistent

with the judgment entered in Maschka’s action against GPC. Anderson’s motion relied

upon the doctrine of issue preclusion, asserting that GPC, having lost on the age

discrimination claim in Maschka, should be bound to that determination in Anderson's

case. The district court denied Anderson's motion. The jury returned a verdict of

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

Anderson contends that the district court erred by not allowing Anderson to

submit evidence of GPC’s personnel policies and the judgment entered in the Maschka
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case. We review the district court's denial of a motion for a new trial and its

evidentiary rulings under an abuse of discretion standard. Schultz v. McDonnell

Douglas Corp., 105 F.3d 1258, 1259 (8th Cir. 1997). Additionally, the standard for

considering a request for a new trial is whether the exclusion of the evidence was in

error and "affected the substantial rights 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

The district court found that because Anderson’s claim involved a “demotion”

rather than a “termination” or “layoff,” the jury should only consider those policies

dealing with demotion. The district court based this determination on the parties'

stipulations in the Pretrial Order. Specifically, in paragraph 7 of the “Uncontroverted

Facts” of the Pretrial Order, the parties stipulated to 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 about 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

parties’ pleadings made it clear that this case involved the issues of termination and

layoff, as well as demotion. Also, Anderson submits that Alexander and King both

testified that Anderson was merely offered the inside sales position rather than ordered
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to accept the new position. According to Anderson, this testimony shows that

Anderson was terminated and then offered a new position, rather than demoted.

Anderson further argues that the exclusion of this evidence unduly prejudiced his

case. Anderson argues that the termination policy and termination checklist would

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

GPC to terminate first those with the least seniority. Anderson maintains that this

layoff policy in the personnel manual sets the general objective criteria to determine

which persons should be removed during a layoff. According to Anderson, had this

policy been followed, the two least senior sales representatives, Zenchuk 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 Pretrial Order supersedes all previous pleadings and “control[s] the subsequent

course 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., 756 F.2d 1322, 1335 (8th Cir. 1985)

(quoting Seneca Nursing Home v. Secretary of Social & Rehabilitation Servs. of

Kansas, 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 show

that GPC had previously followed 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 not

constitute prejudicial error. 
Anderson's contention with respect to GPC's disciplinary policy differs from his 2

other evidentiary arguments because the district court ultimately did allow him to enter

the policy into evidence. However, Anderson argues that because the district court did

not allow him to introduce the disciplinary policy until the end of his rebuttal case, he

suffered prejudice because he could not use the policy to more effectively crossexamine King.

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2. GPC's performance appraisal policy and GPC's disciplinary

policy

GPC's performance appraisal policy requires management to evaluate and

document each employee's performance and to establish an "action plan," which is

agreed upon by management and the employee. Similarly, GPC's disciplinary policy

also sets forth a progressive systematic method for correcting employee deficiencies.

Anderson argues that GPC's performance appraisal policy and GPC's disciplinary

policy would have discredited King's testimony of Anderson's alleged performance

2

deficiencies, since King had never documented any significant deficiency in Anderson's

performance. In addition, Anderson asserts that GPC never documented any attempt

to improve Anderson's performance. 

Anderson's argument that these policies were relevant for the purpose of

challenging 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, were

that Anderson was demoted as part of a reduction-in-force. To implement the

reduction-in-force, GPC assessed Anderson's performance and potential performance

in relation to other outside sales representatives rather than GPC's sales requirements.

Therefore, Anderson's performance as compared to company goals and requirements

is arguably irrelevant. Accordingly, we conclude that the district court's rulings with

respect to the performance appraisal policy and the disciplinary policy did not

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, the policy requires each operating unit to keep information on only

applicants, recently-hired employees, recently-promoted employees, and recentlyterminated employees. Furthermore, with respect to those four categories, the

affirmative action program requires each operating unit to only record data that is

relevant to race, sex, disability, and veteran status. Id. Accordingly, we do not

consider this policy to require GPC's management to be fully aware of the age of each

of its employees before implementing a demotion. 

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3. GPC's anti-discrimination policies

The district court did not allow Anderson to enter into evidence GPC’s antidiscrimination policies. GPC has three separate anti-discrimination policies, which

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 anti-discrimination statutes. Anderson argues that GPC’s policy would have

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discredited Alexander's testimony that he never realized that King had selected the two

oldest and most senior employees for demotion. In our view, this contention does not

amount to prejudicial error. GPC's decision to profess its willingness in its policy

manual to follow federal and state anti-discrimination laws would not necessarily

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 case
When using the former testimony from the Maschka case for impeachment

4

purposes, Anderson was only allowed to refer to the case as “another proceeding.”

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At trial, the district court allowed Anderson to use prior testimony from the

Maschka case only for the purpose of impeaching GPC's witnesses. Anderson argues 4

that he should have been allowed to inform the jury that the Maschka jury found that

GPC committed age discrimination against Maschka. Anderson asserts that prior acts

of discrimination by an employer are relevant evidence in discrimination actions.

Anderson relies on Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153 (8th Cir.), cert

denied, 498 U.S. 854 (1990). In Hawkins, this court stated that “[b]ecause an

employer’s past discriminatory policy and practice may well illustrate that the

employer’s asserted reasons for disparate treatment are a pretext for intentional

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 cases, which

is that allowing evidence of past discrimination is necessary to assist plaintiffs in the

difficult burden of proving intentional discrimination. An employer's prior acts of

discrimination may show the employer's state of mind at the time of the adverse

employment action in question. 

However, a jury verdict does not constitute evidence. Rather, a jury's verdict

simply represents findings of fact, based on the evidence presented to it. Upon

reviewing the trial record, we note that the district court allowed Anderson ample

opportunities to present to the jury facts surrounding GPC's demotion of Maschka. In

fact, Maschka testified at Anderson's trial about GPC's adverse treatment of both

Anderson and Maschka. Furthermore, the district court allowed Anderson to crossexamine GPC's witnesses about GPC's treatment of Maschka. Accordingly, we

conclude that the district court did not commit reversible error by excluding the jury's

verdict in the Maschka case.
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B. Issue Preclusion

Anderson argues that the district court erred in not granting his motion for

judgment as a matter of law based on the doctrine of issue preclusion. The doctrine of

issue preclusion, which was formerly known as collateral estoppel, provides that "when

an issue of ultimate 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 omitted). 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) the issue sought to be precluded must have been determined by a valid

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). 

Anderson maintains, and GPC does not dispute, that four of the five factors--

namely factors 1, 3, 4, and 5--unquestionably weigh in favor of Anderson's claim to

issue preclusion in the present case. 
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Anderson further argues that factor 2 also weighs in favor of issue preclusion

because the issues determined by the jury’s verdict in Maschka are essentially identical

to the issues in Anderson’s case. In support of his argument, Anderson cites the Tenth

Circuit opinion of Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994). In

Meredith, the Tenth Circuit applied issue preclusion to prevent Beech Aircraft from

asserting that its actions in promoting a male were motivated by nondiscriminatory

reasons because a jury, in a prior suit by another female co-employee, found that Beech

Aircraft had discriminated by promoting the male in question. Id. at 894.

We determine that Meredith is distinguishable. In the initial sex discrimination

case against Beech Aircraft, the jury found in favor of the female plaintiff because the

jury determined Beech Aircraft had promoted, in a discriminatory manner, one

particular male over other female employees. Id. Therefore, Beech Aircraft's

discrimination in promoting the male employee over female employees was established

by the jury in the first trial. Consequently, in the second proceeding where a second

female employee sued over the same promotion decision, Beech Aircraft could not

relitigate the issue of its discrimination in promoting the male employee over female

employees.

In contrast, the jury's finding of age discrimination in Maschka's demotion would

not necessarily eliminate any nondiscriminatory reasons GPC could assert or the jury

could find relating to the separate decision to demote Anderson. Although we

recognize the numerous similarities between the present case and the Maschka case,

and the distinct possibility that GPC demoted both men for the same reason, we

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 assessment 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.
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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 argument, however, was rejected by this court in Maschka's appeal. Maschka,

122 F.3d at 568. For the reasons stated in Maschka, we similarly reject Anderson's

contention. 

IV. CONCLUSION

The exclusion of evidence noted in this opinion falls into the realm of discretion

by the district court. We recognize that another trial judge might have admitted the

questioned evidence over objection. Indeed, some of the excluded evidence was

admitted in the Maschka case by the same district judge. Nevertheless, under an abuse

of discretion standard on evidentiary matters such as presented in this appeal, the trial

judge possesses the prerogative to admit or not admit the evidence. Accordingly, we

affirm. 

A true copy.

Attest:

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