United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3638
                                    ___________

Stephen L. Langlie,                      *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Onan Corporation,                        *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: June 18, 1999

                                   Filed: September 30, 1999
                                    ___________

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

LOKEN, Circuit Judge.

       In late 1995, Onan Corporation implemented a reduction in force and eliminated
the position of Stephen L. Langlie, a 62-year-old employee. Langlie commenced this
action, alleging unlawful age discrimination and retaliation. After trial, a jury found
that Langlie was not discharged on account of his age, and the district court1 found
insufficient evidence of unlawful retaliation. Langlie appeals, arguing there was
overwhelming evidence of age discrimination and retaliation for his years of informal

      1
        The HONORABLE JAMES M. ROSENBAUM, United States District Judge
for the District of Minnesota.
protests against adverse changes in Onan’s pension plan benefits. He also argues there
were prejudicial evidentiary and jury instruction errors by the district court. We affirm.

                    I. The Jury’s Age Discrimination Verdict.

       Langlie argues the district court erred in denying his post-trial motion for
judgment as a matter of law or a new trial because the jury verdict is contrary to the
great weight of evidence showing that age was a motivating factor in Onan’s decision
to eliminate Langlie’s position. We review the evidence in the light most favorable to
the jury’s verdict and affirm unless that evidence “is susceptible of no reasonable
inference sustaining the jury’s determination.” Jones Truck Lines, Inc. v. Full Service
Leasing Corp., 

, 257 (8th Cir. 1996). Our focus is primarily on the jury’s
resolution of the ultimate question of fact -- whether Onan intentionally discriminated
against Langlie on account of his age. See Ryther v. Kare 11, 

, 849 (8th
Cir.) (en banc) (Loken, J., writing for a majority on this issue), cert. denied, 

(1997).

       Onan presented evidence that, after its parent company mandated a ten percent
reduction in force, Onan decided to eliminate one engineering position in Langlie’s
department. Langlie was chosen after an objective evaluation of all the engineers
because he had a relatively low performance ranking, his projects were substantially
completed, and he lacked design and computer skills necessary for future work. There
was evidence that Langlie survived earlier reductions in force in 1985, 1989, 1992, and
1994 in which younger employees were terminated. In addition, when Langlie refused
to move with his department to Alabama in 1993, Onan transferred him to another
department rather than terminate him. Langlie presented evidence that he was qualified
to replace another engineer, his projects were not substantially completed, he had a
favorable performance review in April 1995, and Onan’s performance rankings for the
reduction in force were subjective. He also testified that Onan denied him computer
training it made available to younger employees and delayed providing updated

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computer equipment. Viewing the trial evidence as a whole, we agree with the district
court that the evidence was more than sufficient to permit the jury reasonably to find
in favor of Onan on Langlie’s age discrimination claim. See generally Holley v. Sanyo
Mfg., Inc., 

(8th Cir. 1985). His motion for judgment as a matter of law
or for a new trial was properly denied. See Jones Truck 

(denial
of new trial based on sufficiency of the evidence is “virtually unassailable on appeal”).

                    II. The Disparate Impact Directed Verdict.

       Langlie appeals the district court’s refusal to submit his disparate impact age
discrimination claim to the jury. Disparate impact claims challenge “employment
practices that are facially neutral in their treatment of different groups but that in fact
fall more harshly on one [protected] group . . . without adequate justification.”
Houghton v. SIPCO, Inc., 

, 958 (8th Cir. 1994). “To prove discrimination
under this theory, a plaintiff must identify . . . a facially-neutral employment practice,
demonstrate a disparate impact upon the group to which he or she belongs, and prove
causation.” Lewis v. Aerospace Community Credit Union, 

, 750 (8th Cir.
1997), cert. denied, 

(1998). To prove a prima facie case of causation,
“plaintiff must offer statistical evidence of a kind and degree sufficient” to raise an
inference that the practice in question has caused significant adverse effects on the
members of a protected group because of their membership in the group. Watson v.
Fort Worth Bank & Trust, 

, 994 (1988).

       On appeal, Langlie relies upon the trial testimony of his expert statistician, who
analyzed Onan’s terminations between 1992 and 1997 and opined that older engineers
were involuntarily terminated more often than would be expected compared to Onan’s
younger engineers. However, Langlie failed to link this testimony to a facially neutral
employment practice. He refers in his brief generally to Onan’s reduction-in-force
decisions, citing Thomas v. First Nat’l Bank of Wynne, 

, 66 (8th Cir.
1997). But he was terminated in the 1995 reduction. Statistics based upon all

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terminations from 1992 to 1997 do not measure the impact on Onan’s work force of
that specific reduction, and Langlie has not cited evidence that the 1995 reduction in
force had a disparate impact on Onan’s older employees. To the extent that he also
relies on the distinct argument he made to the district court -- that Onan’s use of
performance improvement plans had a disparate impact on its older workers -- we
agree with the court that he did not prove a substantial statistical disparity. Thus, we
agree with the district court that Langlie failed to present a prima facie case of disparate
impact discrimination.

                         III. The ERISA Retaliation Claim.

       In the late 1980's, Onan made changes to its pension plan. Langlie filed a
complaint with the Minnesota Department of Human Rights and then became a leader
of a group of employees who complained internally to Onan management that these
changes would reduce the pension benefits that Onan previously led its older workers
to expect. When Onan did not rescind the changes, the group took their complaints to
the United States Department of Labor, the Internal Revenue Service, the EEOC, and
members of Congress. These protest activities continued into 1995, the year of
Langlie’s termination. He claims that the termination violated § 510 of the Employees
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, which provides that it
is unlawful “to discharge . . . a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee benefit plan.”

       It is an open issue in this Circuit whether § 510 protects informal complaints or
protests relating to plan changes that a participant reasonably believes to be illegal. See
Rath v. Selection Research, Inc., 

, 1089 (8th Cir. 1992). After
considering Langlie’s evidence at trial, the district court assumed that § 510 provides
a claim for retaliation based on informal protests and ruled that Langlie’s claim fails
because there is insufficient evidence Onan retaliated against Langlie for his years of
protesting Onan’s pension plan changes. “[I]t beggars the imagination,” the court

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explained, “that it took [Onan] years to get rid of a troublemaker if the troublemaker
they were unhappy about was complaining about an ERISA plan.”

        On appeal, Langlie argues that § 510 encompasses retaliation against informal
complaints and protests and therefore his retaliation claim should have been submitted
to the jury. However, there is no right to a jury trial under ERISA. See 

. The district court found that Langlie was not terminated in retaliation for
his complaints about pension plan changes. This finding is not clearly erroneous given
the evidence that Langlie began to question pension changes in 1988 and survived
numerous reductions in force in the ensuing years despite continuing his informal but
vigorous protests. See Figgous v. Allied/Bendix Corp., 

, 362 (8th Cir.
1990) (standard of review). Accordingly, without reaching the issue of law we left
open in Rath, we affirm the dismissal of Langlie’s ERISA retaliation claim.

                        IV. Instruction and Evidence Issues.

       Langlie argues the district court erred in instructing the jury, “You may not return
a verdict for plaintiff just because you might disagree with defendant’s conduct or
believe it was harsh or unreasonable.” This is Instruction 5.94 from the MANUAL OF
MODEL CIVIL JURY INSTRUCTIONS FOR THE EIGHTH CIRCUIT (1998), the Business
Judgment instruction. We have expressly held that, in employment discrimination and
retaliation cases, “a business judgment instruction is crucial to a fair presentation of the
case, and the district court must offer it whenever it is proffered by the defendant.”
Scamardo v. Scott County, 

, at *3 (8th Cir. Aug. 17, 1999). The
district court did not abuse its discretion in giving this instruction and in declining to
give additional instructions proposed by Langlie.

      Langlie argues the district court abused its discretion by limiting employee
testimony about adverse treatment by Onan, excluding charts prepared by Langlie
showing the adverse impact of Onan’s practices on employees over forty, excluding

                                            -5-
evidence of Onan’s hiring and firing of employees in 1996, and restricting his testimony
relating to pension plan protesting. However, with the exception of one letter to a
United States Senator, which was excluded as cumulative or irrelevant hearsay, Langlie
does not cite to the record where he offered this evidence, as Fed. R. App. P. 28(a)(7)
requires. Therefore, he has not established that the court committed a clear and
prejudicial abuse of discretion. See Hastings v. Boston Mut. Life Ins. Co., 

, 510 (8th Cir. 1992) (standard of review).

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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