                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 09a0108n.06
                               Filed: February 10, 2009

                                         No. 07-6050

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


ROBERT BRYSON,                                         )
                                                       )
          Plaintiff-Appellant,                         )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
CITY OF CLINTON, TENNESSEE, and JAMES S.               )   THE EASTERN DISTRICT OF
JONES, Individually and as City Manager for Clinton,   )   TENNESSEE
Tennessee,                                             )
                                                       )
          Defendants-Appellees.                        )




          Before: BOGGS, Chief Judge; KETHLEDGE, Circuit Judge; and THAPAR, District Judge.*


          KETHLEDGE, Circuit Judge. Former City of Clinton, Tennessee (“City”) police officer

Robert Bryson appeals the district court’s judgment following a defense verdict on his age-

discrimination claims. Bryson challenges various evidentiary rulings and jury instructions. We

affirm.

                                               I.

                                              A.




          *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 07-6050
Bryson v. City of Clinton, Tennessee

       On January 10, 2004, Bryson was on patrol when he encountered a bleeding and intoxicated

man, Michael Manford, who had apparently been involved in a car accident. Bryson did not arrest

Manford, but drove him to the police station to question him further about the accident.

       There, Deputy Darryl Chapman asked Bryson whether he had any charges against Manford.

Bryson indicated that he did not. Chapman apparently decided, however, that Manford should be

charged with an unspecified offense. At that point, Manford became “extremely belligerent[,]”

swearing at the officers. Bryson then told Manford he was under arrest, but Manford resisted. Other

officers came to assist, spraying Manford with pepper spray and striking him in the back of his leg

with an asp. He was eventually subdued.

       The City’s Chief of Police, Richard Scarbrough, later directed Sergeant Larry Miller to

conduct an internal-affairs investigation of the incident. Miller interviewed Bryson and asked,

among other things, whether Chapman had in fact asked Bryson prior to the arrest if Bryson had any

charges against Manford. Bryson said he did not recall whether Chapman had asked him that.

Miller thereafter prepared an investigation report in which he concluded, based solely on this

response, that Bryson had been “untruthful” in the interview. Scarbrough reviewed the report and

recommended to the City Manager, James Jones, that Bryson be terminated. Jones reviewed the

report and terminated Bryson.

                                                B.

       Bryson was 40 years old when the City fired him. He filed a complaint against the City and

Jones, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626 et seq.

(ADEA). The case thereafter proceeded to trial. The jury rejected the City’s proffered justification

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No. 07-6050
Bryson v. City of Clinton, Tennessee

for terminating Bryson—that Bryson lied to the internal-affairs investigator—and submitted the

following “statement” with its verdict form:

       The Jury believes Robert Bryson told the truth during the Clinton Police
       Department’s Internal Investigation and that his testimony during this case was
       honest and forthcoming. The Members of the Jury urge Judge Varlan to enter this
       statement into the Public Record of this trial as a first step toward restoring Mr.
       Bryson’s credibility as a Police Officer.

Nonetheless, the jury found no age discrimination, and returned a verdict for the City.

       This appeal followed.

                                                II.

                                                A.

       Bryson challenges certain of the district court’s evidentiary rulings. We review those rulings

for an abuse of discretion. Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004).

       Bryson argues that the district court erred in admitting evidence of Jones’s lack of

discriminatory intent. He asserts that Jones, the City Manager, “was not the actual decision-maker

but was merely a conduit for the recommendation” of Chief Scarbrough, who in turn relied on

Miller’s investigation report. Appellant’s Br. at 31. Bryson thus argues that Jones’s intent was

irrelevant. Id. at 34-35.

       It is undisputed, however, that Jones was responsible for the hiring and firing of all City

employees. Jones was in fact the person who fired Bryson. Evidence of Jones’s intent, therefore,

was relevant. Bryson himself alleged in his complaint that Jones unlawfully terminated him because

of his age. That Scarbrough’s intent, or Miller’s, might have been more relevant does not change



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No. 07-6050
Bryson v. City of Clinton, Tennessee

the fact that Jones’s intent was relevant as well. The district court did not abuse its discretion on this

point.

         Bryson next argues that the district court erred in admitting evidence that 64% of the City’s

employees were over age 40, and that the City hired a training-patrol officer over age 40 after

terminating Bryson. Bryson argues that the probative value of this evidence “was non-existent, and

the prejudice was overwhelming,” because, he says, these other employees were not similarly

situated to him as a patrol officer. Appellant’s Br. at 35.

         We disagree with Bryson’s assessment of this evidence. That a majority of the City’s

workforce is over age 40 does suggest, at least as a general matter, that the City does not discriminate

against people over that age. So too does the fact that the City hired a training-patrol officer over

age 40. It is true that other evidence might be more probative of whether the City discriminated

against Bryson. But under the broad definition of relevance in Rule 401—“evidence having any

tendency to make the existence of any fact . . . more probable or less probable than it would be

without the evidence”—this evidence was relevant. Moreover, its prejudice was minimal. Bryson

cross-examined Jones with the very criticisms he advances here, and introduced evidence of the age

composition of the police force generally and its patrol officers specifically. The district court’s

admission of the cited evidence therefore did not violate Rule 403.

                                                   B.

         Bryson next challenges two jury instructions. We review instructions “as a whole to

determine whether they fairly and adequately present the issues and applicable law to aid the jury

in making its determination.” Micrel, Inc. v. TRW, Inc., 486 F.3d 866, 880-81 (6th Cir. 2007). The

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No. 07-6050
Bryson v. City of Clinton, Tennessee

“correctness of jury instructions is a question of law, which we review de novo,” id. at 881, but “[w]e

review for abuse of discretion a district court’s refusal to give requested jury instructions.” Williams

v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir. 2005).

        Bryson argues that the district court erred in instructing the jury that “the plaintiff has the

burden of establishing by a preponderance of the evidence . . . that age played a determining factor

in the defendant’s decision to terminate his employment[.]” He argues that the district court instead

should have instructed the jury that he could recover if age was a “motivating factor.” Appellant’s

Br. at 50.

        The district court’s instruction was correct. The cases Bryson cites in support of a

motivating-factor instruction applied a different statute—42 U.S.C. § 2000e-2(m)—than the one at

issue here, which is the ADEA. To recover under the ADEA, a plaintiff “must prove that age was

a determining factor in the adverse employment action that the employer took against him.” Phelps

v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993) (emphasis added); see also Allen v. Highlands

Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008). The district court’s jury instructions were entirely

consistent with that rule.

        Bryson next argues that the district court erred in rejecting his proposed pretext instruction.

He argues the instruction should have made clear to the jury that “it was free to find for the Plaintiff

based solely upon its disbelief of the non-discriminatory justifications offered by the Defendant.”

Appellant’s Br. at 49. The proposed instruction read as follows:

        Proof that an employer’s explanation for an employment decision is unworthy of
        belief is one form of circumstantial evidence that is probative of intentional
        discrimination, and it may be quite persuasive.

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No. 07-6050
Bryson v. City of Clinton, Tennessee

       Once an employer’s justification has been eliminated, discrimination may well be the
       most likely alternative explanation, especially since the employer is in the best
       position to put forth the actual reason for its decision.

       When all legitimate reasons for an employment decision have been eliminated as
       possible reasons for the employer’s actions, it is more likely than not that the
       employer, who it is generally assumed acts with some reason, based its decision on
       an impermissible consideration.

       This language is lifted largely verbatim from the Supreme Court’s opinion in Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But judicial opinions and jury

instructions are two different things. An opinion excerpt, taken out of context, might well be

understood by a jury to tell them what they must do, and not simply whether they may do it. Such

is the case here: Reeves held “it is permissible for the trier of fact to infer the ultimate fact of

discrimination from the falsity of the employer’s explanation.” 530 U.S. at 147 (emphasis in

original). But Bryson’s proposed instruction suggests the jury would have been compelled to make

that finding.

       The district court instead instructed the jury that, if it found “that the reasons given by the

defendant for plaintiff’s discharge were a pretext for age discrimination, then your verdict should

be for the plaintiff.” (Emphasis added.) The court explained that Bryson could prove pretext for age

discrimination “by showing: that the reasons have no basis in fact; that the reasons have a basis in

fact, but they were not the actual factors motivating the defendant’s decision to discharge the

plaintiff; or, that if the articulated reasons were factors, these reasons are insufficient to have

motivated the defendant’s conduct.” The court’s instructions thus did precisely what Reeves




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Bryson v. City of Clinton, Tennessee

requires: they permitted, but did not compel, the jury to infer age discrimination from a finding of

pretext.

       We sympathize with Bryson’s plight in this case. The jury indeed found the reasons for his

dismissal to be pretextual; specifically, it “believe[d] Robert Bryson told the truth during the Clinton

Police Department’s Internal Investigation[.]” The reason offered for Bryson’s termination, in other

words, was a pretext for something; but the jury chose to find that the something was not age

discrimination. The jury was entitled to know that it could make that choice.

       The district court’s judgment is affirmed.




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