UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GENE E. TRITCHLER,

Plaintiff-Appellant,

v. No. 95-2679

CONSOLIDATION COAL COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Richard L. Williams, Senior District Judge, sitting by designation.

(CA-95-11-1)

Argued: May 7, 1996

Decided: June 28, 1996

Before HALL, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brent E. Beveridge, BEVERIDGE LAW OFFICES, Fairmont, West Virginia, for Appellant. Roger Allen Wolfe, JACKSON

& KELLY, Charleston, West Virginia, for Appellee. ON BRIEF:

W. Warren Upton, JACKSON & KELLY, Charleston, West Virginia; Julia M. Chico, JACKSON & KELLY, Morgantown, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gene E. Tritchler appeals a judgment entered on a jury verdict in

favor of his former employer, Consolidation Coal Company (Consol),

in Tritchler's action alleging claims of age and disability discrimination under the West Virginia Human Rights Act, W.Va. Code §§ 5-

11-1 through 5-11-19 (1994 & Supp. 1995). We affirm.

I.

Tritchler began working for Consol in 1971. In 1979, he was given

a supervisory job as a section foreman. In 1989, because of the closure of the Pursglove mine in Monongalia County, West Virginia,

Tritchler was transferred to the Loveridge Mine in Marion County.

His job performance deteriorated at Loveridge, at least in the eyes of

his superiors.

In late 1991, Tritchler suffered a back injury and was off work for

a while. In the meantime, because of a downturn in business, Consol

decided to lay off seven of the 88 salaried employees at Loveridge.

Tritchler, who had had the lowest performance evaluation among the

salaried employees at Loveridge for two years running, was among

those laid off. The laid-off employees were somewhat younger on

average than those remaining. Tritchler was medically cleared to

return to work on April 1, 1992, but no job was waiting. He was 44

years old at the time.

Nearly two full years later, Tritchler filed this suit in state court

against Consol and two individual mine officials. He alleged state

statutory claims for age and disability discrimination. When the individual defendants (who, like Tritchler, were West Virginia residents)

were voluntarily dismissed, Consol removed the suit to district court

based on diversity of citizenship.

 2
During discovery, plaintiff requested "all job performance evaluations for all [Northern West Virginia] employees for the period of

1987 through 1992." Consol responded, "None." This response can be

narrowly read to be literally true. Pursuant to company policy, performance evaluation forms are discarded after a year.

Nonetheless, Consol's response may have sailed a bit too close to

the wind. The original pieces of paper were gone, but some of the

information from the discarded evaluations had been preserved. The

numerical performance ratings of all of the Loveridge miners had

been incorporated into a document that was used to decide whom to

lay off. The columns on this document under which the ratings were

listed were labeled "EVAL," obviously for"evaluation."

On the other hand, in response to interrogatories, Consol stated,

As plaintiff's performance rating reflects, he was among the

worst performers at Loveridge Mine. He made a number of

errors and was repeatedly dilatory and failed to produce. He

was perceived as an employee who would find excuses for

lack of performance[,] rather than finding a way to get the

job done. He was also perceived as unreliable and acted like

he had a "chip on his shoulder."

Moreover, Consol identified seven persons with knowledge of

Tritchler's performance. Tritchler did not conduct depositions concerning his performance or performance ratings.

Before trial, Tritchler moved in limine to exclude a proposed

exhibit (the lay-off document containing comparative performance

ratings) and to prohibit Consol from offering any evidence about performance ratings. The district court concluded that the proposed

exhibit was the functional equivalent of what Tritchler had requested,

and the exhibit was excluded. However, the court permitted Consol

to offer testimony from those familiar with the layoff and the performance ratings underlying it, as well as exhibits bearing the ratings

sponsored by the supervisor of personnel at Loveridge, John Bihun.

At trial, Consol established that Tritchler was the worst salaried

employee at the mine; that the displaced miners were younger, as a

 3
group, than those remaining; and that several employees with medical

conditions worse than Tritchler's were retained.

The jury returned a verdict for the defense. Tritchler moved for

judgment as a matter of law or for a new trial, which the district court

denied. Tritchler appeals.

II.

Fed. R. Civ. P. 37(c)(1) provides that a party who fails to provide

evidence in discovery "without substantial justification" may be precluded from introducing the evidence at trial. Generally, preclusion is

considered a drastic remedy, and it is not imposed unless the party's

conduct is in bad faith or callous disregard of the discovery rules.

This court reviews the district court's decision on a Rule 37 issue for

abuse of discretion. Stillman v. Edmund Scientific Co., 522 F.2d 798,

801 (4th Cir. 1975). "The Rule is flexible in its nature and the [district

court] has broad discretion in its choice of the type and degree of the

sanctions to be imposed." Id.

Here, the district court shaped its remedy to fit the violation it perceived. The court excluded a document that was not but should have

been produced, and it permitted testimony from witnesses whose

knowledge of the facts was properly disclosed.

The exhibits sponsored by Bihun also contained the numerical performance ratings. Tritchler objected that these exhibits were derived

from the excluded exhibit. The witness then testified that the data

came from a "worksheet" he had prepared for Robert Omear, the General Superintendent of the Loveridge mine, at the time of the lay-off.

The district court admitted the Bihun exhibits without further

inquiry.*

_________________________________________________________________

*It could be, though it is not certain from the record, that Bihun's

"worksheet" and the excluded exhibit were one and the same. Any error

in admitting Bihun's exhibits would nevertheless be clearly harmless.

The fact of Tritchler's dismal performance was properly (and abundantly) in evidence, and it is that fact -- be it expressed orally, on a

chalkboard, or on a "worksheet" -- that sinks Tritchler's case.

 4
The district court did not abuse its broad discretion.

III.

For the first time on appeal, Tritchler suggests that Consol's discarding of the original performance evaluations constituted "destruction of evidence." We do not ordinarily consider arguments not raised

below.

Because of the seriousness of the charge, however, we must note

that there is no support for it in the record. Consol did not destroy

"evidence." It destroyed its own business records pursuant to a routine

schedule. The 1991 Loveridge evaluation forms were discarded

before this case was filed. As far as we are aware, employers have no

duty to even evaluate employees, let alone maintain records of the

evaluations for some lengthy period for the convenience of prospective litigators.

The jury decided that Tritchler was not laid off on account of age

or disability discrimination. Its findings are supported by an abundance of evidence, and the district court's challenged rulings were not

an abuse of discretion. The judgment of the district court is affirmed.

AFFIRMED

 5