*1 STOCKMAN, D.D.S., David Samuel
Plaintiff-Appellee, CENTER, P.C., DENTAL
OAKCREST Leonor, D.D.S., Individually,
Louis E.
Defendants-Appellants.
No. 05-1518.
United States of Appeals, Court
Sixth Circuit.
Argued: June 2006.
Decided and Filed: March *3 to work as a dentist at Oakcrest.
Stockman goal Dr. Leonor’s was to use this as to attract and retain Dr. opportunity parties set no patients. Stockman’s limit or date of termination. Dr. time began working at four Stockman Oakcrest days per week December Croall, Porter, T. David ARGUED: announcing Oakcrest sent out mailers Arthur, Cincinnati, Ohio, Wright, Morris & to remain patients move and invited old Morris, Morris Appellants. E. Michael him at his new location. New ever *4 Doherty, Birmingham, Michigan, for & came. Croall, BRIEF: David T. Appellee. ON Arthur, Porter, Wright, Morris & Cincin- began working he Dr. When nati, Ohio, Calligaro Meyering, & Clinton opted paid per Stockman had to be $32.00 Taylor, Michigan, Appel- for Meyering, percentage hour rather than receive a Morris, Do- lants. E. Michael Morris & production. his In Dr. Leonor herty, Birmingham, Michigan, Appel- for hourly agreed to increase Dr. Stockman’s lee. pay per gave hour and Dr. Stock- $35.00 benefits, including malprac- man additional SILER, CLAY, and Before: insurance, vacations, paid tice and some McKEAGUE, Judges. Circuit after, days long off. Not Dr. Stockman 806-15), per asked for a raise to hour be- CLAY, a (pp. $55.00 delivered J. average pay cause was the for den- dissenting opinion. separate rejected tists in the locale. Dr. Leonor OPINION because, claimed, the amount he Dr. producing billing Stockman was SILER, Judge. Circuit average disputed amount. It is wheth- Dental Center Defendants Oakcrest er this reason was communicated to Dr. (“Oakcrest”) appeal Dr. Louis Leonor Stockman, though he stated he “had the $479,491.63 a in favor of judgment of impression that Dr. Leonor could not af- Plaintiff Dr. Samuel Stockman. Defen- time, him give ford” to a raise. At the including allege dants several trial errors dentist, only one other Dr. Macunivieh the erroneous admission of settlement (“Dr.Mac”), paid per being $55.00 of FED. R. EVID. 408. offer in violation every But pay hour. his was recalculated agree that the district court Because we year upon prior year’s produc- based admitting discretion in the set- abused its tion. tlement offer and the record demonstrates prejudice, we REVERSE the substantial In October because of his low rev- to the district judgment and REMAND production, enue Dr. Stockman’s work court for a new trial. days week was scaled from four back give Dr. three. Leonor wanted
I. by Dr. occupied high- chair Stockman to revenue-producing er dentist. He hired agreed In late Dr. Stockman dentists, forty years two other Drs. Lavasseur and practice sell his dental of over Long, The sale was who were both their thirties. to Dr. Leonor and Oakcrest. However, very January Pursuant to a neither lasted at Oakcrest completed agreement, long. Dr. Leonor hired Dr. side
By early Dr. Leonor reduced Leonor asked whether Dr. June Stockman real- two, days Dr. from three to Stockman’s ized he “[was] oldest dentist” at Oak- pro- Dr. continued low citing Stockman’s crest. Dr. Stockman also cited Dr. Leo- went duction. Dr. Stockman home nor’s criticism of certain of his dental day claiming he ill. Dr. Leonor called practices they because were older meth- to Mrs. who spoke his home Stockman ods. Dr. Leonor that Dr. Stockman informed years Two later and a few weeks before symptoms. was in bed flu-like Dr. trial, attorneys for Dr. Leonor and Oak- expressed Leonor his relief that Dr. Stock- following crest sent the letter to Dr. Stock- man had not suffered heart attack. attorneys: man’s time, Bailey At the Drs. Mac and had Dear Ms. Adams: produced per between 50 cent and almost I by my have been authorized client to per cent more revenue over the same extend an offer of reinstatement of em- period, adjusting even the reduced ployment to Dr. Stockman. information, upon this hours. Based specifics of the are offer as follows: Leonor concluded that Dr. Stockman *5 Dr. Stockman would be rehired as an Dr. ought to be terminated. Leonor associate dentist under the terms of his claimed that he did not have the heart to employment. prior responsibilities His terminate Stockman himself because Dr. would be identical prior to those of his lot,” and guy he “liked the had someone employment as would be his benefits. upon else inform Dr. Stockman his return upon Dr. testimony Based Stockman’s in Dr. to the office. Leonor hired Dr. Don (see deposition page his 96 of the tran- Bui, replace to Dr. Stockman. script) compensate we will him on a Dr. in Stockman filed suit the Eastern percentage-based plan. pay 2003,1 in Michigan February District Further, my client is amenable to con- alleging Age violation of the Discrimina- ducting meetings may whatever be nec- (the “ADEA”), and Act Employment tion essary Dr. between Stockman and office seq., 621 et § Michigan 29 U.S.C. and the any staff to address concerns that Dr. (the Rights Elliott-Larsen Act “EL- Civil may Stockman have a smooth transition seq. et CRA”), 37.2201, § MiCH. L. Ann. employment. My to his return to his alleged years He that he was 73 old at the that, convey despite client wishes to its subject disparate time and was to treat- disagreement with Dr. respectful Stock- age. alleged ment because of his He he discrimination, man’s claims of there (rooms operatories
was afforded fewer animosity is no toward Dr. Stockman work); which to do dental was not he every and that effort will be made to given a and competent dedicated dental professional hospitable assure and work- assistant; patients required and new who ing conditions in the future. expensive more treatments were steered My willing client would be to have Dr. him, away from reducing potential thus his immediately. Stockman work generate per patient- more revenue your Please discuss this offer with client alleged hour. He also that on three occa- sions, culminating party position in a Christmas and advise us of his as soon as Oakcrest, right joined Dr. possible. after he charge right 1. Dr. Stockman filed a with the EEOC to sue letter. dismissed, which was and the EEOC issued Oakcrest; attorneys at later, younger Dr. dentists days Stockman’s Two an assistant experienced should have responded: Nevertheless, to him. Dr. available Dear Mr. Chiasson: accepted has the offer of rein- Stockman purposes is for settlement This letter statement, only granted even if he is one to the offer of response and is in given if operatory; and even he is your forth in letter of reinstatement set However, experienced assistant. unless 9, 2004. June changed, the dis- such conditions are accepts the offer of rein- Dr. Stockman criminatory conditions would workplace statement, he understands to be which remain an issue in the case. Your letter states unconditional. Next, know, you as the offer of rein- “... responsibilities Dr. Stockman’s all statement does not resolve claims prior of his would be identical those Among things, other the case. employment, as would be his benefits.” back-pay, eligible Stockman is still However, your then modifies the letter anguish damages, liquidated emotional employ- of Dr. Stockman’s prior terms attorneys’ damages and fees costs. pay Dr. Stockman by proposing ment course, open we will remain to dis- Of percentage-based pay plan.” “... on a any of all cussing settlement claims accept percentage- Dr. Stockman will However, time. such discussions remain 40%, namely indicat- pay plan, as based your separate apart from offer of deposition testi- pages ed on 94-96 of accepted reinstatement which has been Also, mony. any misunder- avoid by this letter. standings, you we refer to the terms of *6 pre-planned Dr. Stockman has a visit April employment contained family beginning his son’s June Application Employment. for For st, begin working but will be available to convenience, copy your we enclose on Please advise whether June 28th. that document. Dr. should call the Oakcrest Stockman note that the offer of reinstatement We manager arrange office to recommenc- accepted based on those terms of Dr. is. ing work. prior employment which in- Stockman’s days per four or 32 hours week cluded Letters”). (Together, Believing “the know, you of work. As we have con- reply rejection Dr. was a Stockman’s tended that the reduction of Dr. Stock- counteroffer, Defendants withdrew their days man’s hours was discrimina- and/or offer of reinstatement and Dr. Stockman Hence, tory. accepted the offer is based sought to enforce the contract. The dis- presumption on the that Dr. Stockman trict court refused to enforce the contract guaranteed original will be his terms of (1) clearly because the offer was an offer except hourly rate employment, for exchange of reinstatement settle- pay. (2) action, ment of the entire Dr. Next, your rejection letter was a letter does not address other Stockman’s However, employ- of Dr. counteroffer.2 the district court conditions Stockman’s motion to have the ment which we have contended were denied Defendants’ discriminatory. By way precluded being Dr. document from admitted example, into evidence at trial under Fed.R.Evid. Stockman should have the same number him The district court ruled that the Let- operatories available to as the appealed. 2. This order is not Here, admitting clearly under Rule 408’s “an- the Letters was
ters were admissible a violation of Rule exception, they plain language. and that 408’s purpose” other Furthermore, the evidence at trial favoring if be read into evidence Defendants could Dr. Stockman was insufficient to overcome that Dr. Stockman presented evidence prejudice inheres in such submis- mitigate damages. failed to sions. trial, At Defendants cross-examined job about offers he received and Stockman A. following in the months his termi- refused Fed.R.Evid. 408 states: nation. The Letters were then read into (1) furnishing Evidence of or offering or
the record over defense counsel’s renewed (2) furnish, or promising accepting or objection. parties agreed both While offering promising accept, or a valu- limiting appropriate instruction was in compromising able consideration or time, give the district court did not one attempting compromise a claim which court jury charge. until the The district disputed validity as to either or request also refused defense counsel’s amount, is not prove admissible to liabil- instruction, give a “same actor” which in- ity invalidity for or of the claim or its jury may forms the that it infer a lack of amount. Evidence of conduct or state- intentional discrimination where the same ments in compromise negotiations made person accused of discrimination also made is likewise not admissible.... This rule the decision to hire the plaintiff-employee. require also does not when the exclusion The found Dr. Leonor and Oakcrest evidence is offered for purpose, another liable for discrimination and awarded such proving prejudice as bias or of a pay, pay, damages back front and other witness, negativing a contention of un- $479,491.63. totaling court district de- delay, proving due or an effort to ob- motion for a nied Defendants’ renewed struct investigation prose- a criminal or verdict or for a trial in directed new cution. alternative. argues Dr. Stockman that Rule 408 ex- *7 pressly require “does exclusion when
II. pur- the evidence was offered for another pose.” He contends that the district court appeal Defendants the adverse correctly regarding ruled that evidence ruling alleged Rule 408 other trial alleged mitigate failure to constitutes “an- errors, arguing they individually purpose” admissibility. other for cumulatively justify a trial. new We re view a district court’s admission of evi heretofore never addressed We have for an admitting dence at trial abuse of discretion. whether settlement terms or ne- 989, Talley, gotiations prove disprove See United States v. 164 F.3d thereof to or mit- (6th Cir.1999). An igation 998 abuse of discretion Rule 408. Other circuits violates if firmly exists we are convinced that the have found that such evidence is admissi- in admitting serving purpose” district court made a mistake ble as “another under challenged evidence. See United States v. Rule 408. See Bhandari v. First Nat’l (6th Cir.1996). Commerce, 602, 1082, Wiedyk, 71 F.3d 608 Bank 808 F.2d 1103 of (5th Co., However, Cir.1987); jury’s we will v. Parnell reverse Urico Oil (1st Cir.1983); 852, prejudicial. verdict if the error was See 708 F.2d 854-55 Orzel Inc., 743, Freight Sys., Dep’t, v. F.2d Polk Yellow 876 F.2d v. Wauwatosa Fire 697 Cir.1989). (7th Cir.1983). (6th 527, However, 532 757 n. 26 instead 798 Am., decisions, agree Mfg. Sys. Elec. Co. v. Toronado we following of those of (7th Cir.1982) Co., Inc., 182, Triplet F.R. & 687 F.2d 185 in Pierce v. holding (2d Cir.1992). There, 820, negotia (holding existence of settlement
955 F.2d 826-27 question. par a similar claim that addressed tions admissible to rebut the court employee suit); had knowledge a former Pruden employer ty An whom had no offered to reinstate for discrimination Am. v. Curt Bullock sued tial Ins. Co. of exchange Builders, Inc., 159, for dismissal of employee F.Supp. 626 165 (N.D.Ill.1985) The re- employee Id. at 824. the suit. set (holding occurrence of sought to admit employer fused and talks to establish tlement admissible rejection as evidence the offer and agency relationship); see also Bank The court mitigate. Id. failure Brussels Lambert v. Chase Manhattan holding rejected employer’s position, Bank, N.A., 1996 U.S. Dist. LEXIS “[ejvidence a fail- that demonstrates 1790, 8270, Nos. 93 Civ. 5298 and 93 Civ. mitigate damages goes to the ure to (S.D.N.Y. 71507, Feb.20, 1996 WL at *6 thus, if claim and the offer ‘amount’ of the 1996) (compelling discovery of terms of compromise in the course of was made Hunt, only); agreement Small plain under the negotiations, it is barred (allow (E.D.N.C.1994) F.R.D. Rule 408.” Id. at 827. language of discovery materials to ing of settlement circumstances”). “change show Indeed, federal and under both law, may Goodyear Tire & Rubber Co. v. Chiles raise the Michigan defendant Inc., mitigate plaintiff Supply, that the failed to Power 332 F.3d defense Cir.2003). by seeking accepting em have also viewed “another damages We purpose” including Fernald Envtl. as the use of settlement ployment. See Skalka v. Corp., agreements prove facts unrelated to the Mgmt. Restoration (6th Cir.1999); subject Chrysler negotiations Rasheed v. matter of the or upon 517 N.W.2d 27 where “the claim was based some Corp., 445 Mich. (1994). mitigation pre wrong is the that was committed the course of goal loss, discussions; libel, unnecessary e.g., economic see the settlement as- vention sault, contract, id., mitigation necessarily prac- breach of unfair labor and therefore tice, Uforma/Shelby amount of a claim. Because and the like.” See goes to the NLRB, mitigation cannot both be a Bus. Forms v. disproving (6th Cir.1997) (internal excluding quotation evidence under Rule 1293-94 purpose omitted). i.e., claim— and citation for “the amount” of the 408— and at the same time be admissible as Therefore, the district court posi purpose,” “another Dr. Stockman’s *8 “opened in finding erred that Defendants implausible. tion is the door” to the inclusion of the settlement the statute is harmonious reading
Our of by offering evidence evidence of Dr. Stock- recog- we have with those instances which Where, here, mitigate. man’s failure to as constituting purpose,” “another nized as party going a has raised an to the issue 408, in Rule but examples of those outside claim, validity or amount of a that is insuf validity amount go not to the or which do that admitting ficient for settlement offers of a claim. go to the issue because to do so same argue used to violates Rule 408 on its face. To exceptions have been
[T]he
pro
Rule 408’s
occurrence of settlement talks
otherwise would eviscerate
admit the
purpose.
for
tection and undermine its clear
agreement
the
itself
or
settlement
See,
a
expect party
Breuer
It would be unreasonable to
purpose.”
e.g.,
“another
doing
jury
easily
if
cause a
could
have misunder
offer
so
make a settlement
to ever
offer,
that the
made on the' eve of
choosing
conceding stood
it into
between
forced
trial,
liability
liability
implicit
dam-
was an
admission of
elements of
or
one or more
they
that
against
sign
thought
or a
Defendants
having the offer admitted
ages or
Contractors,
Thus,
“a
might lose at trial.
even under
v. Oceanic
it. See Griffin
575,
3245,
Inc.,
564,
probative
73 maximal view of the
effect of the
102 S.Ct.
458 U.S.
(1982)
unfairly
of a
evidence and a minimal view of its
(“Interpretations
L.Ed.2d 973
effect,”
v.
produce
prejudicial
absurd re-
United States
Sassa
statute which would
(6th
nelli,
495,
Cir.1997),
if alternative inter-
118 F.3d
are to be avoided
sults
legislative
district court’s admission of the Letters
with the
pretations consistent
available.”).
an
of
under Rule 403 was
abuse
discretion.
purpose are
Therefore, the
of
Letters
admission
Moreover,
inad
the evidence was
408,
violated Fed.R.Evid.
and the district
Fed.R.Evid. 403. That rule
missible under
concluding
court erred in
that Defendants
relevant,
states,
may
evidence
“[although
opened the door to
evidence or that it
such
probative
if its
value is sub
be excluded
was admissible under Rule 403.
outweighed by
danger
of un
stantially
Here,
probative
value
prejudice.”
fair
B.
nearly non-existent. The offer was
trial,
Defendants contend that the er
just
years
two
after
made
before
termination,
of the Letters caused
contingent
and was
on set
roneous admission
case,
damage to them at trial be
irreparable
whereas Defendants’ evi
tling the
exceedingly prejudicial nature
that Dr. Stockman
cause of the
dence established
received,
agree.
offer.
Gen
rejected
offers of of the settlement
We
sought,
erally, a non-constitutional
trial error is
in the months fol
equivalent employment
Thus,
it
than
probable
the Letters
harmless “unless
is more
lowing his termination.
materially affected the
mitigation
all
not that the error
were irrelevant to
issues
Fountain, 2
However,
verdict.” United States v.
except
pay.
for future
this mere
Cir.1993).
(6th
To make
further re F.3d
probative
value was
scintilla
determination,
we examine “the entire
by Defendants’ offer to concede the
duced
[alleged
if
tended
error]
record to see
proba
issue. A court must estimate
v.
prejudice
[party].”
United States
by “compar
of evidence ex ante
tive value
Cir.1995).
(6th
Wiedyk, 71 F.3d
ing evidentiary alternatives.”
See Old
States,
a
risk
By
we mean substantial
“prejudice,”
v.
519 U.S.
184-
United
Chief
(1997).
made a determination
377 F.2d
Indus., Inc.,
79,
F.2d
90
278
Schénley
CRA,
v.
employer may
discharge
an
(3d Cir.1960)).
employee’s age.
of the
employee because
623(a)(1);
§
See 29 U.S.C.
Mioh.Code. Ann.
1.
37.2202(1)(a). plaintiff
§
A
has the burden
Evidence,
Rules of
to the Federal
“Prior
in
proving
that the discrimination was
failure to exclude evidence of
a trial court’s
tentional.
See Reeves v. Sanderson
con
agreement
generally
a settlement
Prods., Inc.,
133, 143,
Plumbing
530 U.S.
sufficiently
prejudicial
warrant
sidered
(2000)
2097,
120 S.Ct.
ment employee may An establish a liability profound.” nation of is United by offering claim either direct or circum (5th Hays, 872 F.2d States v. stantial evidence discrimination. Cir.1989). Here, conciliatory the Letter is Auth., Valley See Kline v. Tenn. for Dr. quid pro quo and offers a Stock- Cir.1997). “Direct evidence It relinquish man his cause of action. which, of discrimination is that evidence if question that if Defen begs therefore believed, requires the conclusion that un meritorious, why dants’ case were would lawful discrimination was at least a moti him they why they rehire settle would vating employer’s factor actions. claim in their defense— if—as Defendants evidence, on the other Circumstantial unproduc was slow and Stockman hand, proof is that does not on its face Thus, suggests tive? the offer Defen animus, discriminatory establish but does they would lose at trial. “It dants believed a fact finder to draw a allow reasonable imagination does not tax the to envision inference discrimination occurred.” juror who retires to deliberate with Furniture, Wexler v. Fine White’s had done notion that if the defendants (6th Cir.2003). Here, there nothing wrong, they would not have [of cir was scant evidence at trial—direct or Thus, jury’s finding settle].” fered to Id. cumstantial—proving intentional discrimi liability it mistook the evidence because nation. certainly for a tacit admission would be a basis.” Mendez- “improper
decision on an
Ortiz,
stantial to overcome
801
age
just
and a
thy toward his
after
two
“[was]
that he
to Dr. Stockman
remarked
years.
at
There
half
dentist”
Oakcrest.
the oldest
alleged
the first two
no witnesses to
were
Second, the statement
lacks the
incidents,
pin
could not
and Dr. Stockman
nega
in
it
required “animus”
that
does not
But Dr.
nor context.
their location
point
tively
refer to Dr. Stock-
disparagingly
or
the
making the remark at
Leonor admitted
Rowan,
Douglas
(1973).
1817,
Thus,
Burdine,
450 U.S.
255 n.
101 S.Ct.
mate, nondiscriminatory reason that an
(1981).
burden
Second, Dr. Stockman conceded that he
discrimination. A legitimate and bona fide
“spillover” operato-
was allowed
use the
seniority system does not constitute an
say
ries when needed and could not
when
employment
unlawful
practice.
he was ever denied their use
See
except that
Hazen
i.e., Paper,
he was not allowed to double
because and Dr. Stockman also provided no evidence inup operatories ended other long so or even a theory as to “good how the interrupted it other doctors’ sched- patients” were away diverted from him. ules. Dr. typical- Mac also testified that he He claimed that there were meetings ly operated out of operatory one and used where sometimes new patient assignments spillover only occasionally. rooms were divided up, yet and he chose not to points These were never rebutted. Furthermore, go. repeated testimony es- non-credible, if Even deemed there was no tablished that patients new non-referral contrary evidence. If Dr. Stockman is assigned words, were blindly. In other correct that Oakcrest devoted fewer re- they assigned dentist, time were to a place, sources to him in the first this does no one knew what treatment a patient prove age intentional discrimination explanation would need. This went un- and does not rebut proffered justifica- countered as well. tion that per patient-hour his low revenue against dedicating militated opera- further Dr. heavily Stockman relies on the testi- discussed, tories or assistants. And as Unsworth, mony of Dr. an unaffiliated den- supra, allegedly fact that Dr. Mac manages practice. tist who his own Dr. many received as or more of these re- production reports Unsworth examined sources than Dr. Bailey casts serious prepared by summaries Dr. Stock- any doubt on inference that discrimi- man’s counsel. He testified that he be- nation priorities. motivated Defendants’ typical lieved it expensive most Third, there is little evidence to procedures patients, would come from new prove patient manipulation that Dr. thought and so he it odd that Dr. Stock- matter, alleges. Stockman As an initial man would have seen one fifth of the new complains Dr. Stockman it that was dis patients yet have less than a criminatory for Dr. Leonor to have hired expensive procedures: fifth of the Dr. Long they Lavasseur and Dr. because year In the Dr. Stockman received took patient some of his new allotment 21 percent patients. of the new You away. Though they younger were both far expect would that if receiving he was Stockman, than Dr. it firmly estab percent patients, of the new that he lished Dr. Stockman that there was a high percentage would have a down here general policy of giving the new dentists of procedures expensive, that are more patients new in order to fill their Therefore, they’re not, they’re less, they’re schedules. Dr. Lavasseur and Dr. Long new patients saw not because less. conceded these facts. Further- In each of these worth thing here.
Same more, no evidence that Dr. receiving the there was supposedly he is years, and, you, you’re had a smaller patients as I told Stockman’s new patients new procedures. to have a of the new you’re going pro rata share going to receive-— cases, who, in a lot of The variance between Mac’s numbers group patients *13 expensive to (percentage patients the dentist for 10 15 of new to haven’t been to by fact they require procedures) explained root canal thera- the years and (of pre-existing patients had very extensive work. that he py, Dr. had few to none of which Stockman that of time period Dr. Macunovich at own, for Dr. Mac’s and also accounted expect I would Dr. doing what visits). patient of total higher number do, far the relation- as as Stockman the total num- This would have affected expensive procedures ship between office, in the expensive procedures ber of In other patients. the numbers of and causing a concomitant decrease Dr. words, jive to me that Dr. just it doesn’t pro- percentage expensive of Stockman’s getting patients the new Stockman was Thus, it be a stretch for cedures. would receiving high yet he was not conclude, person a reasonable based procedures. percentage expensive Dr. upon foregoing, that Stockman However, conclusion Dr. Unsworth’s scraps.” saw the “table premises. If most does not follow from his Therefore, comparisons to Dr. Mac procedures generally expensive of the Bailey severely alle- percent- and Dr. undercut the patients, come from new then pretext, discrimination or expensive proce- gation of age of Dr. Stockman’s proffered explanation Dr. strongly correlate with the Stockman’s dures should largely unsupported revenue is patients the new he saw for his low percentage of trial, by raising thus exclusively almost saw new the evidence sub- because he admitting doubt as to whether patients. surprising it should not be stantial Thus, Dr. was harmless error. year, that in his first Stockman Letters patients and per saw 21 cent of the new expensive proce- per
had 16
cent of
(after allowing
period
for the natural
dures
When there has been an evi-
initial visits and later
delay
between
error,
jury
dentiary
we will vacate a
ver
variances); in
and other minor
procedures,
total
dict where the error so altered the
cent,
per
20.7
per
2001 it was 20.6
cent and
jury
mix
to the
of information submitted
per
in 2002 it was 16.2
respectively; and
substantially likely
it was
to have
cent,
per
respectively.
cent and 15
See, e.g.,
affected the verdict.
United
(6th
damaging
Wesley,
is that the docu- States v.
417 F.3d
622
Even more
Cir.2005);
Carr,
to do not
States v.
5 F.3d
ments Dr.
averted
United
Unsworth
(6th Cir.1993); Fountain,
2
per
Dr.
saw 21
993
establish that
Stockman
rather,
Here,
say
admission was
patients;
they
at 668.
the Letters’
cent of the new
substantially likely to have affected the
per
pa-
cent of the total
he had
“excep
they
there was no evi- verdict because
were of
tient visits. Because
tionally prejudicial
number of vis-
character” and were
stating
average
dence
way
prior
presenta
is
admitted
to the defense’s
per
patient,
its
new
there
no
Moreover, given
tion
the lack
percentage
pa-
what
of new
of its case.
determine
overwhelming
favor of liabil
saw without
direct
tients
Stockman
ity,
from consid-
figure
Letters’]
also absent. Dr. Uns-
withdrawal
“[the
which was
States,
(2d
expected
cannot be
to Manko v. United
87 F.3d
eration
Cir.1996)
omitted).
Carr,
(citation
at 993
Goodyear,
the harm.”
5 F.3d
In
remove
Wells,
v.
431 F.2d
(citing
public
United States
“strong
we held that the
interest” in
(6th Cir.1970)). Thus,
we resolve
encouraging
negotiations justi-
settlement
in a case like this in
any lingering doubt
an expanded privilege protecting
fied
them
Olitsky
favor of vacatur
remand.
discovery.
from
The district court’s
in
hypotheti-
Parties must be able to make
struction does not alter our conclusion.
concessions,
quid pro
cal
offer creative
Prejudicial
can overwhelm the ef
evidence
quos,
generally
make statements
An
ficacy
palliative jury
instructions.
litiga-
that would otherwise belie their
degree
instruction can lessen “to some
the
tion efforts.
nature of
evi
prejudicial
[inadmissible]
...;
not, however,
dence
it is
a sure-fire
Similarly, parties
likely
Id.
are no more
panacea
prejudice resulting
for the
from engage
negotiations
in settlement
under
admission of such evidence.”
the needless
just
the risk of their admission at trial
Haywood,
States v.
280 F.3d
United
because a curative instruction was read
(6th Cir.2002) (citing
United States v. during
jury charge.
the
the
While
instruc-
(1
Garcia-Rosa,
F.2d
st
Cir.
protection,
tion
re-
added
veneer
we
1989)). Here, the Letters were read into ject
any
the
amount of
proposition
fairly early during trial which
evidence
liability,
supporting
no matter
infecting
coloring
risked
the balance of
little, coupled
limiting
how
with a
instruc-
proceedings, especially
the
when no limit
any
during
tion read at
time
the trial is
ing
jury
instruction was read until the
wrongful
sufficient to cure the
admission
charge, making it all the more difficult to of Rule 408 evidence. To hold otherwise
Thus,
un-ring the
the district court’s
bell.
would render Rule 408 toothless.
contemporaneous
failure to issue a
instruc
III.
delay
doing
tion and its
in
so until the
charge opened Defendants’ case to the full
The district court abused its discretion
That,
injury.
coupled
brunt of the
admitting
the Letters
violation
overwhelming
the lack of
evidence of liabil FED. R.
“it is
EVID. 408
403 because
ity
“particular
is of
concern” to us and we
than not that
probable
more
admis-
[their
accordingly.
Wesley,
reverse
See
materially affected the verdict.”
sion]
at 622.
Fountain, 2
we
668. Because
alone,
reverse on the Rule 408 issue
we do
holding
Our
is further buttressed
not
reach the balance of Defendants’
underlying Rule
purpose
the
which
appeal.
on
claims
promotion
public policy
of the
fa
is “the
voring
compromise
and settlement of
and REMANDED to
REVERSED
trial
disputes that would otherwise be discour
district court for a new
consistent
with this decision.
aged with the admission of such evidence.”
CLAY,
Judge, dissenting.
gate damages. Nagarajan v. Tenn.
Circuit
State
Univ.,
(Table),
98-5169,
I. claims; upon the release of Plaintiffs Age in Em sought Under Discrimination Plaintiff then an order to enforce 90-902, reinstatement, Act of ployment Pub.L. 81 Defendants’ offer of which (“ADEA”) (codified 602 Stat. as amended the district court denied. The district § 29 621 et. it seq.), at U.S.C. is “unlawful court construed Defendants’ offer as a offer, employer any for an ... to discharge response indi settlement and Plaintiffs rejection-and-counter-offer. vidual ... because of such individual’s as a Plaintiff that, § age.”1 plaintiff alleg argued 29 U.S.C. 623. A also the event that ing required a claim under the ADEA is to Letters agreement, did not constitute an mitigate damages. See Skalka v. Fernald he should be allowed to introduce evi- Mgmt. Corp., Envtl. Restoration 178 F.3d dence of the respond withdrawn offer to (6th Cir.1999). defendant, 426 The to Defendants’ claim that miti- he failed to however, gate damages; bears the burden of demonstrat argued Defendants that ing that the plaintiff mitigate failed to evidence of the Letters barred damages. Express See Shore Fed. Federal Rule of Evidence 408. The dis- (6th Cir.1985) Corp., 777 F.2d trict court denied Plaintiffs motion as (sex discrimination); premature, that, v. Nabors Drill stating West “as a tactical de- USA, Inc., cision,” ing might argue Defendants not that Cir.2003). An offer from the defendant to Plaintiff mitigate damages. failed to J.A. plaintiff previous position rehire the in his at 58. After it become clear that Defen- mitigation; argue is relevant to the issue of if the dants intended to that Plaintiff unconditional, offer is can mitigate damages, defendant use failed to the district plaintiffs accept refusal to the offer as court held Defendants had a choice— plaintiff they argue mitigation, evidence that the failed to miti- could in which case sought Michigan’s discharge 1. Plaintiff also relief under ... an individual ... because of ... Act, Rights Comp. Civil Elliot-Larson Mich. age.” simplicity, For the sake of the discus- seq. § Law 37.2101 et. Section 37.2202 sion in this dissent focuses on federal law. "employer [to] makes it unlawful for an ... properly admitted Rule to dem- of the Letters could be admitted under evidence willing claim that Plaintiff failed to onstrate that Plaintiff was to miti- to rebut the they gate damages, gave in the event did and the district court mitigate damages, or limiting the evidence of the an instruction the use of the evi- argue mitigation, not purpose. If the evi- dence to that Letters would be excluded. admitted, the district court dence was analogous case to the most matter to) (and agreed Plaintiff an in-
proposed Co., at hand Parnell is Urico v. Oil to the issue limiting struction the evidence (1st Cir.1983). There, 853-54 mitigation. of upheld the First Circuit the district court’s trial, put At Defendants the issue of admission settlement offered mitigation play by arguing purpose mitigation. into that Plain- for the Id. at 854- employment tiff offers 55. The case involved an auto accident accept refused (“Parnell”) him Parnell truck available to where Oil Co.’s were reasons April truck on pretextual were or unreasonable. Defen- rear-ended the Uricos’ theory mitigation part rested 1977. Id. at 853. The Uricos had leased dants’ convincing party; that Plaintiff was their truck to a third as a conse- on working quence, they as a den- did not learn about the acci- disposed to continue August, dent until June of 1977. Id. In tist. As Defendants summarized evi- closing, repaired, Plaintiff made when the had dence at “excuses” truck been insurer, finding employment, and did not demanded that Parnell’s for not Uricos (“B Shippers “the of a man who wants to Bankers and Insurance Co. have attitude S”), pay repairs & to them the cost of the get back to work.” J.A. $1,000 to the truck plus per week dam- The district court did not abuse dis- its ages resulting from their loss of the use that, pursuant *16 it to Rule cretion when held refused, B the truck. Id. at 853-54. & S by the door opened Defendants offer- pay repairs but offered to for the if the evidence, Plaintiff ing mitigation and hence dropped Uricos their loss-of-use claim. Id. willing could offer evidence that he was to trial, sought at 854. At the Uricos to to an uncon- accept interpreted what he be offer that introduce the settlement to show Although of employment. ditional offer pay repairs B to for the & S’s refusal “[ejvidence of Rule 408 the admission bars mitigate damages. in its failure to resulted ... offering of ... a valuable consider- Id. at 854-55. The court reasoned that the attempting compromise ation in ... to a duty a clear to take reasonable Uricos had prove claim ... ... [the claim’s] mitigate damages, and the settle- steps to amount,” require the Rule “does not exclu- admissible to demon- ment evidence was is offered for an- sion when evidence B “unreasonably strate that & S held [the purpose.” party other seeks to When hostage.” truck Id. Because Uricos’] admit evidence of a settlement offer made only offered on the issue of evidence was by opposing party opposing to rebut the mitigation, unlikely it is the Urico party seeking claim that the admis- party’s court would have allowed the evidence to of the settlement offer failed to miti- sion mitigation be admitted had not been at gate damages, that evidence is offered for issue. purpose” under Rule “another 408. Co., case immediately Tripler that Plaintiff Pierce v. F.R. & evidence by majority, strongly upon with Defen- relied ready employment to resume most contrary. not to the 826- unquestionably dants was relevant to the is (2d Cir.1992). Pierce, In the Second mitigation. issue of This evidence was plaintiff mitigate damages. the district court’s refusal has failed to upheld Circuit mitigation Where, here, evidence for opens to admit settlement as the defendant Id. at 823. The case evidence, under Rule 408. to mitigating door no such un- discrimination suit where involved an fairness occurs. that, May in he Pierce claimed In being addition to consistent with Uri- posi- to the passed promotion over for Pierce, disposition co and the the dis- Manager tion of General favor of holding trict court’s evidence of the —that younger September, candidate. Id. In only Letters if if was admissible De- another financial defendant offered Pierce opened by arguing fendants the door position, although it was unclear whether damages-is Plaintiff failed to mitigate also required a accepting position release examples consistent with the of “other of all of Pierce’s claims. Id. at 824. purposes” set forth in the text of Rule accept the offer at the Pierce declined to Specifically, holding this accords expense of his claims. Id. The district with Rule 408’s allowance of settlement court refused to the defendant allow “negat[e] evidence offered to a contention evidence, the court ap- admit this delay.” of undue The fact that Rule 408
peals affirmed. Id. at 826-28. The court that, “negate” suggests uses the word that the went to appeals held may while evidence of a settlement be damages, the “amount” of the and there- relevant to rebut evidence that a party by although fore Rule was barred engaged delay, in undue this evidence can- engaged cursory court the most not be admitted unless the door is first discussion of what constituted “another opened party raising the issue of purpose” for which evidence is admissible delay. undue Alan Wright See Charles Thus, under Pierce is distin- the Rule.2 Id. Graham, Jr., and Kenneth W. 23 Fed. case, In guishable on its facts. the instant (“[T]he § Prac. (supp.2006) & Proc. party the admission of settle- opposing offeror cannot himself raise issue of ment evidence had raised the issue of the delay justification aas for the admission duty mitigate damages by contending evidence.”). of the party Evidence that a contrast, By that Plaintiff to do so. failed mitigate damages analogous failed to is Pierce, opposing party the admis- party’s evidence that a claim is invalid put sion of the settlement evidence had not *17 delay. Although because of undue duty damages the into both mitigate play. to types ultimately go of evidence to the “va- something deeply troubling There is about lidity” claim, a or the “amount” of the using defendant Rule 408 settlement ne- nei- gotiations plaintiff type any to the in a ther of evidence “does via place [ ] lose- so situation, in part lose as occurred Pierce: Ac- inference as to the belief the [on of cept the in plaintiff validity offer and the must sacri- arising offeror] [the claim’s] claims; fice his decline the offer and the from compromise.” the offer to Id. Since rejected require testimony 2. The Pierce also the defen- would court often rebuttal from dant's a al- contention that defendant should the offeree. The offeror could force offer- ways allowing be able to introduce his own settlement ee to face the choice of the offeror's that, party testimony go forcing offer. The court were a reasoned unrebutted or offers, forgo allowed to introduce his this rule could offeree to counsel of his choice. Id. The “bring disqualifi- advisory explicitly with it a rash of motions for committee has affirmed party’s cation counsel who would of chosen Pierce’s rationale to the extent that it forbids likely presenting at trial.” Id. become witness at 828. an offeror from his own offer. attorney try testify An advisory cannot a case and as a Fed.R.Evid. 408 committee’s note (2006 amendment). testimony witness because from the offeror (2) by failing to acted in bad faith does had purpose this using the evidence delaying investigate Athey’s claims his imper- engage the factfinder not ask In of support Id. at 360. the defen- settlement. reasoning missible —“because claim, in- settle, Athey was allowed to must be bad-faith he the offer to dant made Farmers had at- to ne- evidence that evidence troduce using settlement liable”— him his bad- tempted require to release plaintiff failed that the gate a contention of its offer to “another faith claim as condition damages mitigate constitutes of claim. Id. at permissi- settle his breach contract is for which evidence purpose” majority’s “plain lan- 362. Under the ble. guage” approach, the evidence should be the flaw also analogy This demonstrates excluded: Because the settlement evidence that the majority’s claim simplistic in the clearly to” the issue of Farmer’s “went evi- 408 excludes language” of Rule “plain faith, liability the evidence would for bad of mitigation relevant to dence is the evidence is “of- be excluded because goes to the this evidence damages because liability.” prove fered to See [Farmer’s] According to the the claim. “amount” of reading 408. This Rule Fed.R.Evid. is the goal mitigation majority, “[t]he correct. district court did cannot be loss unnecessary economic prevention concluding not abuse its discretion necessarily goes mitigation ... therefore a claim evidence offered to rebut Majority Op. at of a claim.” to the amount damages mitigate Plaintiff failed to has Although argument this some 798. “another purpose.” offered for Rule appeal, a close examination surface of the reading that this demonstrates II. does not rejected. Rule 408 must be Rule agree- evidence of settlement all exclude 408 should not have though Even Rule majority’s reading of Under ments. that Dr. Stockman the evidence barred delay would of undue Rule Defen to work for willing to return inadmissible, it to “liabili- goes because be dants, still must clear the such evidence claim.” 408. ty for ... a Fed.R.Evid. of Evidence 403. hurdle of Federal Rule may court Rule the district Likewise, reading of Rule Under majority’s probative if “its relevant evidence or all of the exclude inconsistent with most 408 is by substantially outweighed is defining law other value body of formidable case Fed.R.Evid. danger prejudice.” of unfair body of law purposes. This permissible judge’s that a trial “It well settled years that is thirty-plus in the developed has effect, balancing probative value these discretion 408 has been in Rule for unfair potential against of evidence its approved recently were purposes very broad.” United States prejudice is note to the 2006 advisory committee’s *18 (6th Bilderbeck, 971, 978 Cir. adviso- 408 See Fed.R.Evid. amendment. 1999). amendment). the district court’s (2006 reviewing In note ry committee’s 403, under Rule the evidentiary decisions Take, Athey example, for case the “ (8th give ‘the evidence its Exch., trial court must F.3d 362 Ins. Farmers probative force and in maximum Cir.2000), approval reasonable with which was cited val prejudicial minimum reasonable to the 2006 its note advisory committee’s the ” Bank, 295 F.3d Flagstar Paschal v. Ath- ue.’ Athey, plaintiff, In amendment. Cir.2002) (6th United (quoting alia, that the defendant ey, alleged, inter (1) Schrock, (“Farmers”) States v. Co. Insurance Farmer’s Cir.1988)). contract; Athey to for breach liable analysis work, conducting In its under Rule that he did desire which lends credi rule, majority ignores bility above proffered to his reasons for refusing value of the trivializing probative Let- employment. other Contrary to the ma ignoring the district court’s ef- ters and contention, jority’s testimony this is rele prejudice forts to minimize whatever only vant pay, not to future but to the might have from their admission. resulted mitigation period issue of over the entire “accepted” that Plaintiff De- evidence subsequent to Plaintiffs termination. Ma fendants’ offer was relevant on at least 799-800; see Morris v. Claw jority Op. at (1) three different theories: the evidence Co., son Tank 459 Mich. 587 N.W.2d (2) pay; was relevant to the evi- future (1998) (trier 253, 258 n. 5 of fact must directly dence was relevant to whether determine plaintiff whether the refused to attempted mitigate Plaintiff his dam- accept employment aof “like nature” and ages period for the time brief between work, can type consider “the the hours date of the settlement counter-offer and worked, compensation, job securi trial, month; approximately the end of one conditions, ty, working and other condi (3) the evidence was relevant employment” making tions of the deter rejecting whether Plaintiffs reasons for mination). employment pretextu- other offers of were Moreover, majority while the is correct majority al or unreasonable. While the possibility there is a prejudice (1) may proba- be correct that is of limited admitting evidence aof settlement offer force, tive it completely ignores the other trial, shortly made majority’s before two bases of relevance. The fact that the analysis fails to consider the factors ame- settlement counter-offer was relevant liorating potential this prejudice. In his sincerity of Plaintiffs refusal to accept closing, Plaintiff addressed the settlement other employment highly sig- offers of is only in the damages, context.of During nificant. Plaintiffs cross-examina- gave and the district court in- limiting tion, again at closing, Defendants at- struction, stating that the evidence was tempted to demonstrate that Plaintiff did for, considered, “received and is to be accept employment other offers of for purpose jury’s] the limited of [the de- pretextual reasons that were or unreason- ciding plaintiff mitigate whether failed to able. Plaintiff testified on cross-examina- damages, and is not to be considered job tion that pursue he declined to several jury] in making [the a determination as opportunities, for reasons that included the to whether the defendants discriminated philosophy of the dental the fact practice, against plaintiff age.” on the basis of up one dental office was set for left- J.A. at 558. This factor is relevant to the dentists, handed fact and the that one proper weight potential prejudice of the dental practice was too far from his home. the Rule 403 balance. Fed.R.Evid. attempted impeach Defendants Plaintiff (1972 advisory committee’s note proposed by demonstrating professed that his mo- rule). motives, tives were not his true and ar- truly considering WThen gued during the evidence closing his efforts to mitigate reasonable, the maximum damages were not reasonable view of the truth, probative and in genu- Plaintiff did not have a value and the minimum reason- *19 ine potential desire to work. The fact that Plaintiff able view of the prejudice —rath- immediately the er than accepted ignoring probative “offer” to return sources of value to work for Defendants tends undermine and factors that potential decrease the argument, by this supporting prejudice an inference cannot be said that the dis- —it
811 that the defen- discretion,” to show plaintiff to the its “broad court abused trict pretext a for was proffered dant’s reason a have reached jurists would if other even at Browning, 436 F.3d de discrimination. the issue if faced different outcome 695. was not evidence Accordingly, the novo. under Rule
inadmissible showing this can make plaintiff prof- that the defendant’s demonstrating III. (2) “(1) fact, no basis reason has fered the defendant’s actually motivate cer did trial was not at adduced The evidence (3) conduct, was or insufficient challenged to find for the tainly sufficient conduct.” See challenged the to warrant succeed A can plaintiff favor. Plaintiffs Furniture, 317 Fine v. White’s by pre Wexler for discrimination a claim on Cir.2003) banc) (6th (en F.3d 576 age dis senting circumstantial evidence Co., F.3d v. A.B. Dick 231 Dews (quoting familiar burden- under crimination Cir.2000)). (6th type “The first 1021 in McDonnell outlined shifting model con- easily recognizable and showing is Green, 93 of 411 U.S. Corp. v. Douglas proffered bases (1973). that the sists evidence Coom 668 36 L.Ed.2d S.Ct. hap- discharge never plaintiffs Inc., for the 370 F.3d Hosp., er v. Bethesda i.e., ‘factually false.’ they are Cir.2004). that (6th pened, a In order to establish easily recogniz- showing is also prove The third case, must plaintiff a prima facie evidence and, ordinarily, consists of “(1) able years old at least that: he was employ- (2) particularly discrimination; employees, other alleged time of the class, protected in the were ees not employ subjected to adverse he was in sub- they engaged though (3) fired even action; qualified he was otherwise ment which conduct to that (4) stantially identical after he was the position; its dis- contends motivated employer applicant substantially younger rejected, a v. Dia- Manzer plaintiff.” of the Burzyn charge (citing Id. at selected.” was Co., 29 F.3d (6th mond Shamrock Chems. Cohen, Cir. ski v. Cir.1994) (citation (6th omit- 1078, 1084 Army, 2001)); Browning Dep’t ted). showing, “the Cir.2006). the second Under 692, 695 credibility indict the attempts to plaintiff tri- Here, presented evidence at Plaintiff by showing explanation employer’s of his elements of all the al that established that an prove tend to which circumstances seventy- .was case. Plaintiff prima facie than likely more motivation was illegal the time of his termi- old at years three In other defendant. by the that offered terminated; quali- he was nation; he was sheer words, argues plaintiff he re- dentistry; and practice fied to evidence weight of the circumstantial Bui, thirty-three who was placed by likely than it ‘more makes discrimination a established Because Plaintiff years old. is a explanation employer’s not’ that case, shifted the burden prima facie Id. coverup.” pretext, or legitimate, nondis- proffer Defendants most light in the favorable legiti- Defendants’ Viewed criminatory reason. have Plaintiff, jury could reasonable mate, nondiscriminatory reason was that, that Plaintiff was extent pro- found of his fired low Plaintiff because other Defendants’ than less Douglas productive ductivity. Under McDonnell not mo- dentists, did productivity his lower framework, produces after a defendant to terminate decision Defendants’ for a tivate nondiscriminatory reason legitimate First, adduced Plaintiff him. back discharge, burden shifts plaintiffs *20 from which a could conclude that receiving De- were dental care in past), purported legitimate fendants’ reason patients was new a group require as tended to an concoction. expensive after-the-fact Plaintiff tes- more procedures than returning tified that he was never informed that his patients.3 Dr. Unsworth compared then (includ- productivity problem. awas Plaintiff also the total patient number visits put suggesting forth evidence that nega- ing new and returning patients), expressed tive regarding productivity comments his percentage by dentist, as a to the total only personnel were added to his file after expensive number procedures, again ex- Defendants made the decision to pressed terminate as a percentage by dentist. The that, him. idea is if a dentist assigned more pro than his rata share of patients, new Second, Plaintiff submitted evidence (and the evidence showed that it was De- prove that tended to that Defendants ham- policy fendants’ to assign patients new pered productivity by not providing dentist), the newest then that fact would Plaintiff with his fair share of dental re- by be reflected that having dentist a share presented sources. Plaintiff evidence that expensive procedures that exceeded his given he was not a operatory second share of total patient visits. This is be- of, that, work out after his full-time patients cause number of new assistant left in October of Plaintiff up made that dentist’s share of pa- total given experienced was not and dedicat- tient visits greater, would be and hence And, ed replace assistant to her. impor- percentage of expensive procedures tantly, presented Plaintiff evidence that would be greater. The suggested patients needing the new expensive proce- that Plaintiff was not being allocated dures away were channeled from him and greater-than-pro-rata share of pa- new to the Plaintiff proved other dentists. this example, tients. For when Plain- point through testimony of Theresa dentist, tiff was the newest Plaintiff had 21 LeClerc, who worked at the front desk of visits, patient % of but 16% of the office, the dental who testified that she expensive procedures. Dr. Unsworth tes- given patients directive to steer new tified that had Plaintiff assigned been dentists, to other new given but was never patients, new Plaintiffs percentage share respect directive with to Plaintiff expensive procedures would have been when he was the newest dentist. Plaintiff range of 40% to 50% of expen- proved by also point expert this testi- procedures. sive mony of Dr. Unsworth. Dr. Unsworth that, higher Third, testified because a percentage produced Plaintiff evidence of re- patients of new had not been receiving by marks that, made Defendant Leonor (as past dental care in the opposed to while not direct evidence of discrimina- who, returning patients, by definition, tion,4 suggested that Defendant Leonor patients, example, may These not have Plaintiff's evidence does not constitute direct care, engaged preventative may or have minimum, requires, evidence because it at the been induced to come to the dentist the inference that Defendants’ concerns about specific onset of a ailment. Plaintiff’s motivating were a factor in Defendants' decision to terminate Plaintiff. which, 4. Direct evidence "evidence is if be- The evidence proba- nonetheless constitutes lieved, requires [age the conclusion that dis- tive tending circumstantial evidence to show motivating was at crimination] least factor purported legitimate Defendants’ reason employer's Jacldyn in the actions.” See pretextual. for Plaintiff's termination was Schering-Plough Healthcare Prods. Sales Corp., Cir.1999).
813 that majority concludes the ber of age. On of Plaintiffs conscious highly was did have Dr. Stockman occasions, “the assistants more possibly and three at least Ma- all times.” to him at dedicated were that he Plaintiff told Leoner Defendant is inconsistent at 803. This jority Op. that [Defendants] dentist “the oldest was did not testimony that he Plaintiffs with at 296. J.A. had at Oakcrest.” ever have assis- experienced a dedicated have that, testified Leonor also Defendant assis- experienced tant. Dedicated Plaintiff, he terminating context maintaining pro- important are to tants plans Plaintiffs about wife asked Plaintiffs anticipate they can ductivity, because to allow a factfinder could to retire-which needs, up thereby speeding dentist’s that, thought Leonor Defendant infer that that Plaintiff testified dentist’s work. for it was time age, Plaintiffs because of to him were provided were assistants that employment. his discontinue Plaintiff to not remain and did inexperienced, summary of the evi- This non-exhaustive Plaintiff of time. long periods for him at trial dem- Plaintiff by presented dence re- Defendants were that also testified a cohe- presented that Plaintiff onstrates assistants, and hiring his sponsible for his termination: sive, story plausible hiring process. part no he had that grow- to invest not want did Defendants discredit attempts to majority next The age, his because of practice ing Plaintiffs to restriction that his evidence Plaintiffs him of resources deprived they so instead productivity. his impeded operatory one way for him to make terminated and then not Plaintiff was claims that majority The believed, be- who Defendants a dentist because operatories two to book allowed busi- make better age, his would cause of slow, “Dr. Mac[unovich] and that he was this long-term. Were over the ness sense out typically operated that he ... testified could jury happened in fact what —and spillover and used operatory one would that it did—Defendants easily find at Majority Op. occasionally.” rooms the ADEA. have violated the rec- ignoring majority, again The 803. denial facts viewing trial court’s reviewing the inappropriately When ord Defendants, to not “free trial, is most favorable light this Court in the a new contrary evi- no and set aside “there was avers that reweigh the evidence over- This jury Majority Op. at 803. because dence.” merely jury verdict Bailey testimony that Dr. or looks Plaintiffs inferences drawn different could have [opera- “had two each that and Macunovich judges feel or because conclusions I one.” and had apiece, two apiece, tories] more reasonable.” results are other chosen have juryA could at 290. J.A. Fiberglas Owens-Corning v. Barnes Dr. Macuno- that Cir.2000) Plaintiffs credit (6th 815, 821 F.3d Corp., 201 and disbelieved operatories, had two vich Duncan, F.2d Duncan (quoting typi- he testimony that Dr. Macunovich’s Cir.1967)). Instead, jury’s Moreover, in out of one. cally operated reason if it upheld could be verdict must Defen- light of Plaintiffs evidence jury. a reasonable by reached ably be slower worked that Plaintiff dants’ claim majority, Duncan, The at could believe pretext, was a in the considering the facts instead of allowed to double-book not Plaintiff was Plaintiff, in draws favorable light most discrimination, because operatories of Defendants for the benefit ferences slow. than because he rather testimony Plaintiffs Despite every turn. that, if even next asserts majority hampered performance resources fewer did dedicate Defendants Octo- assistant after having a full-time Plaintiff, prove added), “this does not intentional (emphasis clearly Dr. Uns- *22 age discrimination and does not rebut the merely worth made an in speaking. error proffered justification that low [Plaintiffs] He later stated that the numbers he was per patient-hour against revenue militated referring to were “the total number of dedicating operatories further or assis- visits,” patient and reading his testimony Majority Op. tants.” at 803. This state- whole, as a it is clear that Dr. Unsworth ment demonstrates utter failure to un- was never laboring under a misunder- derstand Plaintiffs claim: Plaintiff claims standing as point.5 to this As the newest that, to the extent that his revenue per dentist, Plaintiff supposed was to be allo- patient-hour low, was it was because De- pro cated more than his rata share of new devoting fendants were not resources to patients fact that percentage —the jury him. A could have credited ex- this expensive procedures is approximately planation. equal to or less than his percentage of patient total strong visits is evidence that Finally, majority’s statement occur, this did given unchallenged Plaintiff theory had “no evidence or even a patients, assertion that new as a group, ‘good patients’ as to how the were diverted frequently more tended require to more away from him” patently Majori- is false. expensive procedures. ty Op. at Dr. Unsworth majority 803. The tes- admits that that, tified if Plaintiff policy place truly there was a were give getting new patients the new patients, to the he new dentists. Yet it should have had ig- 40% that, nores to 50% of testimony despite expensive LeClerc’s procedures.6 The fact that majority she was instructed to steer simply disregards new this testimony. dentists, patients to other new she was When the evidence is considered in the never patients instructed to direct new light Plaintiff, most favorable to it is clear Plaintiff. troubling, majority More ap- that a reasonable could find Plain- pears to pre- misunderstand the evidence tiffs Contrary favor. to the majority’s sented Dr. Unsworth. majority contention, substantial supports evidence states that “it should not be surprising jury’s verdict. that in ... per Stockman saw 21 cent of patients per the new and 16 cent of expensive ...; procedures in 2001 it IV. cent, per per 20.6 cent and 20.7 re-
spectively; Because represents and in 2002 it this case per was 16.2 cent the unusu- cent, per and 16 al respectively.” situation which Majority aof settle- added). Op. at (emphasis agreement ment Although was properly admitted, Dr. Unsworth did state that Plaintiff saw and there was substantial evidence sup- percent “21 patients,” of the new J.A. at porting jury verdict, I uphold would realizes, majority 5. As the the documents to percentage should exceed his share of total which Dr. patient Unsworth referred discussed the visits. Dr. Unsworth testified that this patient total Majority Op. number of visits. would mean that Plaintiff should have had about a expensive share of proce- 40% dures, go with his pa- share of total 20% point simply 6. The is that if Plaintiff were tient visits. The fact that Plaintiff did not assigned patients supposed the new he supports the conclusion that Plaintiff was not receive, patients and if new frequently more in fact patients; allocated the new or if he was, expensive procedures, needed then Plaintiff’s he was scraps.” allocated the "table percentage expensive procedures share of Majority Op. See at 804. I Accordingly, re- below. judgment spectfully dissent. *23 Plaintiff-Appellant, MADAY,
Anna SAGINAW, OF LIBRARIES
PUBLIC
Defendant-Appellee.
No. 05-2637. Appeals, Court States
United Circuit.
Sixth 13, 2007.
Argued: March 28, 2007. March Filed:
Decided and