United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 93-1069.

        EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

                                                   v.

               MANVILLE SALES CORPORATION, et al., Defendants-Appellees.

                                 Charles MITTE, Plaintiff-Appellant,

                                                   v.

                   MANVILLE SALES CORPORATION, Defendant-Appellee.

                                             Aug. 4, 1994.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

        GOLDBERG, Circuit Judge:

        Charles Mitte and the Equal Employment Opportunity Commission ("EEOC") brought the

instant lawsuit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34.

The plaintiffs alleged that Mitte had been discriminatorily discharged by his employer, Manville Sales

Corporation ("Manville"), in violation of the ADEA. After a jury trial, the district court entered

judgment in favor of Manville. The plaintiffs appeal. They contend that during the trial, the district

court improperly excluded, inter alia, evidence of age-related remarks uttered by the employer. The

plaintiffs also argue that the jury charge was erroneous in several respects. Our review convinces us

that the plaintiff's primary contentions are essentially correct, that the judgment of the district court

must be reversed, and, that this case must be remanded for further proceedings in the trial court.

                                            I. Background

        Mitte began his career with Manville in 1962. He worked as a sales representative selling

fiberglass insulation products. In the early 1980's, Manville encountered intense financial difficulties

related to increased competition in the insulation industry and massive tort liabilities incurred by the

company. As a result, Manville embarked on a series of cost-cutting measures. These measures
included the discharge of a significant number of sales representatives.

       In 1982, Lonnie Morris became District Manager of the district that included Mitte's territory.

Morris administered the restructuring of that district with the aim of enhancing productivity and

reducing costs. The district included two other territories in addition to Mitte's, each of which was

served by a separate sales representative. Morris recommended to Robert Bruntrager, the General

Sales Manager for the entire Fiberglass sales group, that Manville eliminate one of the sales

representatives in this district and divide his responsibilities between the two remaining

representatives. Morris also suggested that Bruntrager select Mitte as the employee who, as a result,

would be terminated. Morris mentioned Mitte's age at the time, 55 years, and contrasted him with

Lorin Lichten, age 32, whom Morris described as a "young aggressive sales rep".

       In January of 1986, Bruntrager, having made little follow up investigation into Morris'

recommendations, discharged Mitte and reapportioned his sales territory between Lichten and the

other sales representative in the district, Charles Hinton, age 41.

       Five months after his termination, Mitte began working with another insulation distributor.

Shortly thereafter, in August of 1986, Mitte moved to New Jersey for a short stint with an insurance

company. While in New Jersey, Manville offered Mitte the opportunity to interview for a sales

representative position which had become available in Chicago. Mitte refused this offer. In February

of 1988, he returned to Texas where he began working for a clothing store. In May of 1991, Mitte

interviewed for a sales position with Manville in San Antonio. Although he did not receive a job after

this interview, in December of 1992, Manville rehired him for a position in Dallas.

       On March 15, 1988, after his original discharge by Manville, Mitte filed the instant age

discrimination suit. The EEOC filed a separate action against Manville in December of the same year.

The two cases were subsequently consolidated. In their suit, the plaintiffs charged that in the years

leading up to Mitte's termination, he outsold the two younger sales representatives retained by

Manville and that he was terminated because of his age.1 Manville responded that its financial


   1
   It is evident from the record, however, that sales for all three sales representatives declined
consistently over the four year period prior to Mitte's discharge.
problems necessitated a reduction in the sales force and that it selected Mitte because he was the least

effective sales representative in the area. In particular, Manville contended that Mitte had problems

getting along with certain customers, that he could not handle large volume accounts, that his

expenses were too high, and that he was too inflexible to grasp the opportunities that had become

available in the field.

        During the trial, the judge granted the defendant's motion in limine and excluded any

testimony regarding age-related remarks made by Morris over the four years that he was Mitte's

District Manager. The court also granted the defendant's request to exclude a letter of violation

issued by the EEOC after an investigation of Mitte's claim. Mitte and the EEOC now assert that both

these evidentiary rulings were erroneous.

        The plaintiffs also contend that the jury instructions were faulty in various ways. The most

serious alleged error occurred in the first of five special interrogatories given by the court to the jury.

The interrogatory read:

        Do you find from a preponderance of the evidence that the defendants, through the conduct
        and statements of its officers, agents and employees, discriminated against the plaintiff on
        account of his age when the defendants realigned the Texas sales territories?

The plaintiffs timely objected to this interrogatory on the grounds that the question incorrectly

focused on the decision to realign the territories rather than on the decision to select Mitte as the

employee to be discharged. The jury was instructed that a negative answer to this interrogatory

terminated their decision process and that, should they return such an answer, they need not answer

any further questions.

        The jury answered the above interrogatory "We do not". The trial court therefore entered

judgment for the defendants.

                                               II. Analysis

        The EEOC and Mitte contend that the district court improperly excluded evidence of

age-related remarks made by Morris and the EEOC's letter of violation. Further, the plaintiffs

contend that the jury instructions misled the jury, improperly stated the law, and therefore provide

an additional basis for reversal. We address each contention in turn.
A. Exclusion of Evidence

        We begin by reco gnizing that the "trial court's discretion to admit or exclude evidence is

generally broad, but competent evidence cannot be excluded without a sound and acceptable reason."

Davidson Oil Country Supply Co. v. Klockner, Inc., 

, 1245 (5th Cir.1990); see also

Folks v. Kirby Forest Ind. Inc., 

, 1181 (5th Cir.1994). Courts of Appeals are to review

a district court's evidentiary rulings "only for abuse of discretion." Johnson v. Ford Motor Co., 

, 578 (5th Cir.1993). Federal Rule of Civil Procedure 61 requires that an error in the

exclusion of evidence by the trial court should not be the basis for setting aside a verdict, "unless

refusal to take such action appears to the court inconsistent with substantial justice." In order to

vacate a judgment based on an error in an evidentiary ruling, "this court must find that the substantial

rights of the parties were affected." Carter v. Massey-Ferguson, Inc., 

, 349 (5th

Cir.1983). With the standard of review before us, we proceed to an analysis of the district court's

decision to exclude the age-related remarks and the EEOC letter of violation.

i. Age-Related Remarks

        Morris made the excluded age-related statements over the four year period during which he

was the District Manager in charge of Mitte's territory. The excluded testimony (heard by the district

court outside of the presence of the jury) was that Morris remarked that Mitte was incapable; that

he was old and inflexible; that Morris had bragged about "how he jumped that old man about

smoking his pipe"; that he pulled down Mitte's hat and said "old man hat." The plaintiffs offered

additional testimony, also excluded from the jury's consideration, that the above remarks exemplified

the general tone of Morris' statements on the subject of age.

       The precise reason why the lower court determined that this evidence should be excluded is

not clear. "We may not disturb the district court's exclusion of the evidence, however, if that ruling

can be upheld on other grounds, regardless of whether the court relied on those grounds."

Metallurgical Industries, Inc. v. Fourtek, Inc., 

, 1207 (5th Cir.1986). We will

therefore uphold the exclusion if the evidence is excludable on any defensible ground.

       The possible bases for excluding the evidence are limited. We note that "[a]ll relevant
evidence is admissible in a jury trial, F.R.Evid. 402, unless its probative value is outweighed by, for

example, the danger of unfair prejudice or confusion of the issues, F.R.Evid. 403." Davidson 

. The issue in this case, therefore, is whether Mo rris' age-related remarks were

excludable as irrelevant or as causative of undue prejudice.

       The standard for relevance is a liberal one. " "Relevant evidence' means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. There can

be no question that the excluded statements meet this standard. They are obviously relevant to a

showing of age bias on the part of a key figure in the decision to terminate Mitte and as such are

admissible.

       The defendant's argument, construed in its best light, is that the evidence was not relevant

because the remarks were made over a four year period and because the plaintiffs failed to assign a

date certain to their utterance. In addition, Manville argues that the statements were not relevant

because they were not made by the person who was ultimately responsible for deciding to terminate

Mitte. We cannot agree with either contention.2

       The long period of time over which the remarks were made does not suggest that the evidence

is not relevant. To the contrary, t he long time period may indicate a pattern of discriminatory

comments and as such are directly relevant to showing the existence of discriminatory motive on the

   2
     The cases cited by Manville are not to the contrary. In all the "stray remark" cases referred to
in the defendant's brief, the court merely held that remarks remote in time or made by those down
the employer's hierarchy are alone insufficient to establish age discrimination. See Atkin v.
Lincoln Property Co., 

, 272 (5th Cir.1993) (evidence that employer told employee
that the employee was "getting up there in years" and that it would be good idea for him to retire
is, without more, insufficient to allow a jury to find age discrimination); Waggoner v. City of
Garland, 

, 1166 (5th Cir.1993) ("mere stray remarks, with nothing more, are
insufficient to establish a claim of age discrimination."). Manville's cases are distinguishable from
the instant decision in that they are sufficiency of the evidence cases that did not address the
question of admissibility of stray remark evidence.

               Importantly, these cases did admit the stray remarks as relevant. The only
       remaining question for the court was whether the stray remarks supported a finding of
       discrimination. This is a question of fact and by excluding the evidence of stray remarks
       as a matter of law, the trial court improperly usurped the role of the fact finder. The cases
       cited by Manville, therefore, do not support the district court's decision to exclude the
       stray remarks in the case before us today.
part of Manville. The amount of time that had passed since their utterance is only pertinent to the

weight to be assigned the evidence. This decision is for the finder of fact alone.

          The defendant's other contention, that Morris was not a decisionmaker, simply contradicts

the facts of this case. Manville argues that "Morris' sole involvement in Mitte's separation was his

recommendation to Bruntrager that certain sales territory be eliminated." That this is a blatant

misstatement of the record is demonstrated by a memorandum from Morris to Bruntrager which

advocates the elimination of territories and specifies that "regrettably, I recommend that we offer

Charles Mitte early retirement.... I regret having to force early retirement on anyone." Bruntrager

acknowledged considering Morris' recommendations and independently performing only a

perfunctory analysis of the various employees in making the decision to terminate Mitte. Although

it is true that Morris did not formally make the final decision to discharge Mitte, the evidence makes

clear that Morris recommended his discharge and that Bruntrager relied, to some degree, on that

recommendation in making his decision. In Wilson v. Monarch Paper Co., we held that age-related

comments by various supervisors of the plaint iff would support a finding of discrimination even

though a higher level official made the final decision to terminate him. 

, 1146 (5th

Cir.1991).      Thus, the argument that the evidence is irrelevant because Morris was not a

decisionmaker must also fail since it is clear that, regardless of his final authority, Morris was a

significant participant in the decision to terminate Mitte.

           Manville also asserts that the evidence was properly excluded because its "probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury." F.R.Evid. 403.3 Manville has, however, failed to make any showing of prejudice or

confusion that could arise out of the admission of evidence of Morris' age-related remarks. "Merely

because the testimony is adverse t o the opposing party does not mean it is unfairly prejudicial."


   3
       Fed.R.Evid. 403 reads in full:

                  Although relevant, evidence may be excluded 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 cumulative evidence.
Davidson 

(emphasis in original). We therefore find that Rule 403 cannot

provide a basis for excluding Morris' remarks.

         Having determined that the age-related remarks were improperly excluded, we must now

address whether the exclusion effected the "substantial rights" of the plaintiffs. Munn v. Algee, 

, 573 (5th Cir.), cert. denied, --- U.S. ----, 

, 

(1991)

("[C]ourts of appeals should not reverse on the basis of erroneous evidentiary rulings unless a party's

"substantial right' is affected."). This circuit has "stated repeatedly that "[a]n error is harmless if the

court is sure, after reviewing the entire record, that the error did not influence the jury or had but a

very slight effect on its verdict.' " 

(quoting Pregeant v. Pan Am. World Airways, Inc., 

, 1249 (5th Cir.1985)).

        The excluded remarks in this case are directly relevant to Mitte's age discrimination claim.

Their exclusion from the jury's consideration could directly impact the ability of Mitte to enforce his

rights in this trial. In fact, the exclusion of this testimony would be a potent weapon possessed by

employers intent on the destruction of the program posited and supported by the ADEA.

        The plaintiffs' presented evidence that the excluded remarks, including Morris' use of the term

"old man", and comments that Mitte was "old and inflexible", were reflective of the overall negative

tone Morris employed in speaking about age. It is not necessary that the plaintiffs present videotapes

of explicit exclamations that "we don't want old people in our company" to prove age discrimination.

Evidence of vocalizations and verbalizations of the anti-age based feelings of a supervisor can be, and

often are, used to prove unlawful discrimination.

        In Bienkowski v. American Airlines, Inc., this court held that with regards to various "stray"

remarks made by the employer, "we are unwilling to assume that indirect comments about [plaintiff's]

age and adaptability are not possibly probative of an unlawful discriminatory intent." 

,

1507 (5th Cir.1988). Because t his sort of remark evidence can be highly probative of unlawful

discriminatory intent, we cannot say with conviction that this evidence would not have affected the

jury's determination. The decision to exclude testimony as to these remarks affected the plaintiffs'

substantial rights and was an abuse of discretion that requires us to reverse the judgment of the trial
court. See Dartez v. Fibreboard Corp., 

, 469 (5th Cir.1985).

ii. EEOC Letter of Violation

        As to the exclusion of the EEOC letter of violation, Manville argues that this evidence was

properly excluded under Fed.R.Evid. 403 because of the danger of unfair prejudice. In Gilchrist v.

Jim Slemons Imports, Inc., the Ninth Circuit held that an EEOC letter of violation is excludable

because it "suggests that preliminarily there is reason to believe that a violation has taken place" and

therefore results in unfair prejudice to defendant. 

, 1500 (9th Cir.1986). In response,

the EEOC notes that this circuit considers EEOC determinations of reasonable cause (as opposed to

the letter of violation at issue in Gilchrist ) to be presumptively admissible because they are "so highly

probative of [discrimination] "that [their probity] outweighs any possible prejudice to defendant.' "

McClure v. Mexia Independent School District, 

, 400 (5th Cir.1985) (quoting Smith

v. Universal Services, Inc., 

, 157 (5th Cir.1972)).

        The problem with the EEOC's argument is that in the instant case the lower court considered

a letter of violation, similar to the letter involved in Gilchrist rather than the letters of reasonable

cause which were evaluated in the McClure and Smith cases. This difference is significant because

a letter of reasonable cause is more tentative in its conclusions whereas a letter of violation states the

categorical legal conclusion that a violation has taken place. Additionally, we have held that the

McClure and Smith decisions should not "be read as leaving district courts without discretion under

Rule 403 to exclude such reports if their probative value is substantially outweighed by prejudicial

effect or other considerations enumerated in the rule." Cortes v. Maxus Exploration Co., 

, 201-02 (5th Cir.1992). We agree with the Ninth Circuit's holding in Gilchrist that a letter of

violation "represents a determination by the EEOC that a violation of the Act has occurred and thus

results in a much greater possibility of unfair prejudice" and that "[t]he probative value of a letter of

violation may not, in every case, outweigh the potential for 

. In the de

novo adjudication conducted by the trial court in discrimination cases, the task of weighing a letter

of violation's probity versus its possibility for prejudice is best left to the trial judge. Because the

plaintiffs have failed to show that the exclusion of the letter of violation was an abuse of discretion,
we let this ruling stand.4

B. Special Interrogatories

        The plaintiffs argue that the trial court erred in submitting a special interrogatory to the jury

that required the jury to determine whether the defendants "discriminated against the plaintiff on

account of his age when [they] realigned the Texas sales territories?"5 According to the EEOC and

Mitte, this interrogatory misdirects the jury's investigation from an inquiry into Manville's decision

to discharge Mitte in particular to an exploration of the general business decision of Manville to

initiate the reduction in force and realignment of sales territories.

        The district court's instructions to the jury and special interrogatories are reviewed for abuse

of discretion. Le Boeuf v. K-Mart Corp., 

, 334 (5th Cir.1989). Although we afford

broad discretion in fashioning jury instructions, the trial court must nevertheless "instruct the jurors,

fully and correctly, on the applicable law of the case, and ... guide, direct, and assist them toward an

intelligent understanding of the legal and factual issues involved in their search for truth." Bender v.

Brumley, 

, 276 (5th Cir.1993) (quoting 9 Wright & Miller, Federal Practice and

Procedure § 2556 (1971)). "On appeal, the charge must be considered as a whole, and so long as

the jury is not misled, prejudiced, or confused, and the charge is comprehensive and fundamentally

accurate, it will be deemed adequate and without reversible error." Davis v. Avondale Industries,


   4
    The EEOC observes that the paragraphs stating the legal conclusion would be excised prior to
the admission of the letter of violation thereby neutralizing the letter's prejudicial effect. Other
paragraphs in the letter make the EEOC's conclusion inescapable, however, that Manville had
violated the ADEA. The letter, for example, still reads, "the Commission will begin conciliation
now with respect to the ADEA violation findings."
   5
    The EEOC and Mitte also argue that the jury charge erroneously requires the plaintiffs to
show that Mitte was "clearly better qualified" than those employees retained during the
reduction-in-force at Manville. (emphasis in original). A showing that a discharged employee
was clearly better qualified than younger retained employees is merely one of many ways that a
plaintiff can show that a reduction-in-force was a mere pretext for age discrimination. See
Uffelman v. Lone Star Steel Co., 

, 408 (5th Cir.), cert. denied, 

, 

, 

(1989) (employee may prove pretext in reduction-in-force case by
showing preferential treatment of younger employees prior to discharge of older employee);
Walther v. Lone Star Gas. Co., 

, 124 (5th Cir.1992) (statistical information
sufficient to prove pretext and support verdict for plaintiff in reduction-in-force context). The
EEOC and Mitte may prevail without a showing that he was clearly better qualified than those
employees who were not terminated.
Inc., 

, 173-74 (5th Cir.1992). The plaintiffs properly objected below and now complain

on appeal about the alleged error in the special interrogatories.

        The EEOC and Mitte complain that the allegedly erroneous interrogatory requires the jury

to find for the plaintiffs only if it finds discrimination in the general decision to realign the territory

instead of in the specific decision to terminate Mitte.6 We agree. As we explained in Thornbrough

v. Columbus and Greenville Railroad Co., the trial court in reduction in force cases is to "focus not

on why employees, in general, were discharged, as the district court did, but instead why the plaintiff

rather than another employee was discharged." 

, 644 (5th Cir.1985). Under the case

law of this circuit, therefore, the instruction was improper.

         Manville argues that the jury charge required Mitte to show that he was "clearly better

qualified" than Hinton or Lichten and thus the charge focused the jury on the issue of whether the

decision to discharge Mitte in particular was discriminatory. Manville concludes that the jury charge

mitigated any mistake in the interrogatory. As pointed out by Manville, special verdict questions are

to be reviewed "as a whole and in conjunction with the general charge." Le 

(quoting Dreiling v. General Electric Co., 

, 774 (5th Cir.1975)). In context, they

argue, the jury was properly instructed.

        Le Boeuf is not, however, analogous to the instant case. The jury charge in that case clarified

issues left out of the 

. In the present case, the jury charge simply

stands in contradiction to a misstatement of the law in the interrogatory. Manville's argument loses

even more force when we consider that the erroneous interrogatory focused the many issues in the

trial into a single jury question which determined whether or not Manville would be held liable.

Further, the impact of the interrogatory's particular misstatement of the law was enhanced by the fact

that a negative answer to the question terminated the jury's inquiry and obliged the trial court to enter

   6
     Manville contends that the special interrogatory does not "require Mitte to prove that the
reduction-in-force was discriminatory." It argues that the interrogatory instead requires Mitte to
prove that the defendant's conduct "at the time of the realignment manifested age discrimination."
The text of the question, "Do you find from a preponderance of the evidence that the defendants
... discriminated against the plaintiff on account of his age when the defendants realigned the
Texas sales territories?" makes clear that the record does not support Manville's argument as to
this point.
judgment for the defendants.

        We are compelled to reverse where "t he charge as a whole leaves us with substantial and

ineradicable doubt whether the jury has been properly guided in its deliberations." Pierce v. Ramsey

Winch Co., 

, 425 (5th Cir.1985). We find that this is such a case and therefore vacate

the judgment on the basis of this error as well as the evidentiary problems described above.7

                                          III. Conclusion

       The errors committed by the trial court in excluding evidence of age-related remarks made

by Mitte's manager and in misstating the law in the special interrogatories require this court to

REVERSE the decision of the district court and to REMAND this case for further proceedings in

accordance with this opinion.




   7
     We also note that the district court erred in its damages instruction to the jury. The court
instructed the jury that it could not award backpay for any period after Mitte declined to interview
for a position if the jury found the position to be substantially equivalent. This is a misstatement
of the well-known rule that an employer may toll the accrual of backpay liability if the defendant
offers the claimant an "unconditional offer of the job originally sought" Ford Motor Co. v. EEOC,

, 232, 

, 3066, 

(1982). An offer of an interview is not
tantamount to an unconditional job offer and therefore the plaintiff's refusal to interview does not
automatically toll the plaintiff's accrual of damages. See Kilgo v. Bowman Transp., Inc., 

, 879 (11th Cir.1986) ("Since the plaintiffs were not offered employment, but simply the
opportunity to apply for an unspecified number of jobs, we conclude that Bowman's offer did not
satisfy the requirements of Ford Motor Co."); Rasimas v. Michigan Dept. of Mental Health, 

, 625 (6th Cir.1983), cert. denied, 

, 

, 

(1984).