Hоward M. Sherman appeals the jury’s verdict in favor of his employer, Chrysler Corporation, on age discrimination and retaliation claims brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Michigan’s Elliot-Larson Civil Rights Act (ELCRA), Mich. Comp. Laws Ann. § 37.2101. Sherman appeals as well the district court orders dismissing several of his claims prior to trial and various of the court’s evidentiary rulings before and during the trial. We affirm.
I.
Sherman, who was born in 1945, was hired by Chrysler in July, 1988, as a product engineer assigned to work in the steering group on the small vehicle platform. At that time he had approximately fifteen years of engineering experience. During his years at Chrysler, Sherman received positive performance reviews.
In February, 1994, Sherman applied for a promotion to a newly opened senior engineer positiоn. The position went to thirty-one year old Ron Huszarik. In light of what he viewed as the unfair promotion of a younger, less qualified person Sherman filed a complaint with the Equal Opportunity Employment Commission (EEOC) on April 8, 1994, charging that Chrysler had discriminated against him based on his age when it promoted Huszarik instead of him. Sherman attached an affidavit to his complaint stating:
I believe there is a youthing movement happening at Chrysler. About two-and-a-half years ago, I was passed over for a similar promotion in favor of a younger candidate, Scott Kunselman (approximately age 28 at the time of selection). In fact, the position was created for Hadrian Rori when he was not selected for the initial posting. There was only one Product Engineer Senior, but a second slot was created for Rori. He was about 29 years old at the time.1
J.A. 681.
Cliff Davis, one of Sherman’s supervisors, was informed of the complaint on April 12, 1994. On April 18, Davis wrote two pages of notes detailing what Davis believed were Sherman’s past errors; the following day Davis made further notes, this time concerning his selection of Huszarik.
On May 25, 1994, Mark Pedersen, Sherman’s immediate supervisor, reprimanded Sherman for his failure to test a vehicle as Pedersen had instructed. Sherman’s 1994 performance review, given on January 24, 1995, was lower than previous reviews. Although Chrysler had a practice of giving interim performance reviews, Sherman had not received any interim review during 1994 that would have alerted him to his deficient performance.
On February 1, 1995, Sherman filed a second charge with the EEOC alleging that the 1994 review was in retaliation for his having filed a complaint with the EEOC. In the attached affidavit, Sherman detailed the nature of his 1994 review, the
In February 1997, the EEOC issued a letter of violation stating that Chrysler had violated the ADEA by awarding the 1994 position to Huszarik. In an undated letter relating to Sherman’s second charge, the EEOC held that Chrysler had violated the ADEA “on the basis of age and retaliation, for the unsatisfactory performance evaluation, denial of an Interim evaluation, and promotions.” Shermаn applied in June 1997, for a lateral transfer to a product engineer position, but thirty-three year old Dan Moy was selected. On June 23, 1997, Sherman filed a complaint in the Eastern District of Michigan alleging age discrimination and retaliation in violation of the ADEA and the ELCRA. In January 1998, he applied for a lateral transfer to a product engineer position that was given instead to twenty-five yeаr old Anna Schultz.
After several months of the parties’ skirmishing over discovery matters, Chrysler filed a motion for summary judgment. The district court granted the motion as to Sherman’s claim of age discrimination (both ADEA and ELCRA) with regard to the 1994 performance review because Sherman failed to show that similarly situated people outside of the protected class were treated differently. The court grantеd the motion as to Sherman’s ELCRA claims based on incidents that had occurred prior to June 23, 1994, holding that those claims were barred by the three-year Michigan statute of limitations. The court denied the motion as to the remaining claims.
Prior to trial on the remaining claims, Chrysler filed motions in limine to exclude evidence of those incidents of age discrimination as to which the court had granted summary judgment and to exclude the records and findings of the EEOC. The district court excluded the EEOC determinations on Sherman’s charges; a letter from Sherman’s prior counsel to Chrysler warning Chrysler not to retaliate against Sherman for filing the first EEOC charge; and evidence in EEOC records relating to Sherman’s charges. The court did not exclude the charges themselves. The court also granted Chrysler’s motion to exclude the evidence of alleged incidents of discrimination dismissed on summary judgment.
On March 20, 2000, the district court issued an amended order on Chrysler’s motion for summary judgment, dismissing all of Sherman’s age discrimination claims under the ADEA as to which he had failed to exhaust his administrative remedies; this order therefore dismissed Sherman’s claims as to all incidents except the Huszarik 1994 promotion. The court then granted summary judgment on Sherman’s EL-CRA аge discrimination claims concerning the positions given to John Tache, Daniel Moy, and Anna Schultz, holding that because in each of these incidents, he was denied only a lateral transfer, Sherman had not established that he had suffered an adverse employment action.
The case went to trial on Sherman’s
Before us, Sherman argues that the district court erred in (1) granting summary judgment on those claims of age discrimination as to which Sherman had failed to exhаust his administrative remedies or which were barred by the statute of limitations, because those acts were a part of a continuing violation; and in granting summary judgment on the lateral transfers; (2) excluding from the jury’s consideration evidence surrounding the claims dismissed on summary judgment; (3) excluding from the jury’s consideration the EEOC records; (4) permitting the jury to hear testimony regarding his unrelated litigation; and (5) denying his motion for a nеw trial.
II.
We review de novo the district court’s order granting summary judgment. Bush v. Dictaphone Corp.,
Sherman claims that the district court erred because his allegations of discrimination revolved around a continuing course of age discrimination, beginning in 1991 and lasting to the present, and thus the district court erred in dismissing of some of the instances of allegedly discriminatory conduct for failure to exhaust or because the statute of limitations had expired.
The ADEA prohibits discrimination in the “compensation, terms, conditions or privileges of employment” based on age. 29U.S.C. § 623(a). The ELCRA prohibits age discrimination in a similar manner. Mich. Comp. Laws Ann. § 37.2101 et seq. Federal law requires that a person aggrieved by a discriminatory act first exhaust his administrative remedies with the EEOC by filing a charge of discrimination. 29 U.S.C. § 626(d)(2). Michigan law has no exhaustion requirement, see Rogers v. Bd. of Educ. of the Buena Vista Sch.,
The Supreme Court recently greatly limited the viability of a continuing violations theory. In National Railroad Passenger Corp. v. Morgan, — U.S. -,
[Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clоck for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts аre independently discriminatory and charges addressing those acts are themselves timely filed.
Id. at 2072. Consequently, each alleged discrete act of discrimination and retaliation must be exhausted and a plaintiff cannot rely on a continuing violations theory. We can find no principled basis upon which to restrict the Court’s holding to Title VII, and we therefore conclude that the Court’s reаsoning must be applied to the ADEA.
In his first EEOC charge, filed on April 8, 1994, Sherman referred only to the Huszarik promotion, although in his affidavit accompanying the charge he averred that the denial of two promotions into positions that went to Kunselman and Rori was discriminatory. However, since the Kunselman and Rori promotions took place in September of 1991, and Sherman did not file an EEOC charge with rеgard to them within the 300 day statutory period, he failed to exhaust his administrative remedies as to them. In his second charge and affidavit, filed on February 1, 1995, Sherman alleged retaliation regarding his 1994 review, the lack of an interim review in 1994, and the Smolarek promotion. The district court correctly found that these claims of retaliation were exhausted. Those retaliation claims based on aсts subsequent to the filing of that charge, however, were never the subject of an EEOC charge, and therefore were not exhausted. See Morgan,
Sherman’s second assignment of error with regard to the grant of summary judgment centers around whether Chrysler’s failures to grant Sherman the lateral transfers he sought were adverse employment actions. To establish that he suffered an actionable adverse employment action Sherman must show that there was a “materially adverse change in the terms of h[is] employment.” Kocsis v. MultiCare Mgmt., Inc.,
We agree with the district court that Sherman failed to introduce evidence to show that the denials of his requests for lateral transfer resulted in materially adverse changes in thе terms of employment.
III.
We review for abuse of discretion the district court’s decision to exclude evidence of those incidents dismissed on summary judgment. Robinson v. Runyon,
Sherman argues that the district court, by excluding the evidence of the other alleged incidents of discrimination, prevented him from presenting to the jury the full pattern or practice of discrimination perpetrated by Chrysler. Federal Rule of Evidence 403 permits a court to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of сumulative evidence.” Unfair prejudice is the “undue tendency to suggest a decision based on improper considerations; it does not mean the damage to a defendant’s case that results from legitimate probative force of the evidence.” Doe v. Claiborne County,
We find that the district court abused its discretion when it determined that jury confusion and wasted time would result from the introduction of evidencе relating to alleged discrimination that was not central to the incidents tried to the jury. There was little potential for jury confusion and the evidence of other incidents of discrimination had probative value on the question of whether Chrysler discriminated against Sherman when it denied him promotions to those positions. FED. R. EVID. 401. As noted by the Supreme Court in Morgan,
We also review for abuse of discretion the district court’s decision to exclude various EEOC evidentiary records (including Sherman’s affidavits and letters to the EEOC), EEOC letters of violation, and Sherman’s letter to Chrysler warning it not to retaliate, on the grounds that such evidеnce would tend to confuse the issues or the jury and result in unfair prejudice.
We find no abuse of discretion with regard to these records. An EEOC letter of violation is presumptively inadmissible “because it ‘suggests that preliminarily there is reason to believe that a violation has taken place’ and therefore results in unfair prejudice to defendant.” Williams v. The Nashville Network,
IV.
We review for abuse of discretion the district court’s evidentiary ruling allowing Chrysler to cross-examine Sherman on other litigation in which he was involved. United States v. Frost,
Here, Sherman admitted on cross-examination that he was involved in other litigation. This evidence was probative because it tended to rebut Sherman’s claim that the primary cause of his еmotional and familial stress — and hence his emotional damage — was his ongoing difficulty with Chrysler. And the probative value of the prior litigation evidence was not substantially outweighed by any prejudice. The district court did not abuse its discretion.
V.
We review for abuse of discretion a district court’s denial of a motion for a new trial. Barnes v. Owens-Corning Fiberglas Corp.,
In his motion for a new trial, Sherman argued that the jury’s finding in favor of Chrysler on his clаim of retaliation was against the clear weight of the evidence. The district court, after reviewing the evidence relating to that claim, held that
Sherman’s detailed arguments in support of a new trial on his retaliation claim do no more than marshal the evidence presented at trial in a light most favorable to him and ask the Court to find the reasons the supervisors and managers gavе for certain of the performance reviews and choice of others over*724 him for promotion were simply not credible .... Essentially, Sherman is asking the Court to retry the case and come to a conclusion different than that of the jury. That is not the Court’s function when ruling on a motion for a new trial. Rather, the Court must determine whether, viewing the evidence in a light most favorable to defendant, the jury’s verdict was against the weight of the evidence. The Court concludes that it was not.
Sherman makes the same arguments before us on appeal. We cannot improve upon the district court’s ruling on the motion.
CONCLUSION
For all of the foregoing reasons, we affirm the judgment of the district court.
Notes
. The events surrounding Rori and Kunselman occurred in September, 1991.
. The district court incorrectly stated that the ELCRA claim was still viable because it had earlier granted summary judgment on the claim as barred by the three-year statute of limitations.