                                  ___________

                                  No. 95-1864
                                  No. 95-2003
                                  ___________

Donald A. Slathar,                     *
                                       *
        Appellant/Cross-Appellee,      *
                                       * Appeals from the United States
       v.                              * District Court for the
                                       * District of Minnesota.
Sather Trucking Corporation, an        *
Iowa corporation; Sather's,            *
Inc., a Delaware corporation,          *
                                       *
       Appellee/Cross-Appellant.       *

                                  ___________

                     Submitted:    December 13, 1995

                         Filed:   March 15, 1995
                                  ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

                                  ___________

JOHN R. GIBSON, Circuit Judge.


       Donald Slathar appeals the judgment entered following an adverse jury
verdict in his Age Discrimination in Employment Act claim, 29 U.S.C.
§§ 621-634 (1994), alleging he was wrongfully terminated because of his
age.   Slathar argues that the district court1 erred by (1) instructing the
jury on business judgment, (2) not allowing a former Sather's human
resource manager to testify,        and (3) refusing to strike part of the
company's closing argument.    We affirm.




       1
      The Honorable Donald D. Alsop, Senior Judge, United States
District Court for the District of Minnesota.
       Slathar was born in January 1935.          He began working for Powell's
Candies, Inc., a candy manufacturer, in 1976.           Slathar's duties included
supervising maintenance in the facility, keeping the equipment running,
designing equipment, and plant engineering.


       In November 1991, Sather's purchased the Powell's facility. Shortly
thereafter, the company began restructuring the Powell's organization to
more   closely   reflect      Sather's   organizational    structure.      Powell's
maintenance department had always designed and built equipment in-house.
In contrast, Sather's policy was to purchase equipment on the open market.


       In   January   1992,   Sather's   informed   Slathar   that   he   was   being
terminated in March.      The company claimed Slathar's position as a design
engineer was no longer needed, and his position was being eliminated.
Slathar believed he was being fired because of his age, and replaced as
maintenance supervisor by Ricky Vos, a Sather's employee in his thirties,
who was transferred to the former Powell's facility to serve as Maintenance
General Foreman.


       Slathar sued Sather's.        Following the pre-trial conference the
district court dismissed Sather Trucking as a defendant and dismissed
Slathar's tortious interference claim.         The jury returned a special verdict
on Slathar's Age Discrimination in Employment Act claim, finding that
Slathar's age was not a determining factor in the company's decision to
discharge Slathar.     Based on the verdict, the district court made a finding
of fact in Slathar's Minnesota age discrimination claim that the company
did not discriminate against Slathar on the basis of age.                 The court
entered judgment against Slathar and he appeals.




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                                       I.


        Slathar argues that the district court erred by instructing the jury
on business judgment.     He contends this instruction increased his burden
of proof and materially misstated the law.            He also argues that it was
error to refuse to instruct the jury that if it found he was discharged
because of his pay, they could consider that his pay was tied to his
experience and age.


        The district court instructed the jury that they must find for
Slathar if age was a determining factor in his termination, and age is a
determining factor only if the company would not have terminated Slathar
but for his age.     The court went on to instruct that an employer has the
right to make business decisions, absent intentional age discrimination,
"even if the factor motivating the decision to terminate is typically
correlated with age; such as pension status, salary or seniority."                 The
court    submitted   special   interrogatories   to    the   jury,    and   the   jury
specifically found that age was not a determining factor in Slathar's
discharge.


        "We review the district court's formulation of jury instructions for
abuse of discretion.      We must determine whether the jury instructions,
taken as a whole, fairly and adequately submitted the issues in the case
to the jury."    Transport Ins. Co. v. Chrysler Corp., 71 F.3d 720, 723 (8th
Cir. 1995) (citations and internal quotations omitted).              "[T]he form and
language of jury instructions are committed to the sound discretion of the
district    court so long as the jury is correctly instructed on the
substantive issues in the case."     Walker v. AT & T Technologies, 995 F.2d
846, 849 (8th Cir. 1993) (quoting Williams v. Valentec Kisco, Inc., 964
F.2d 723, 731 (8th Cir.), cert. denied, 506 U.S. 1014 (1992)).


        "The ADEA is not intended to be used as a means of reviewing the
propriety of a business decision."      Gaworski v. ITT Commercial




                                      -3-
Fin. Corp., 17 F.3d 1104, 1110 (8th Cir.), (quoting Jorgensen v. Modern
Woodmen of Am., 761 F.2d 502, 505 (8th Cir. 1985)), cert. denied, 115 S.
Ct. 355 (1994).   In Walker, 995 F.2d at 849, we held that, on the record
there before us, the employer was entitled to have the jury instructed
"that an employer may exercise business judgment in making personnel
decisions."   An employer has the right to make business decisions, so long
as they are made in a nondiscriminatory manner.       See Walker, 995 F.2d at
849-50.


     Even if Slathar was terminated because of his high salary, age
discrimination cannot necessarily be inferred.     See Bialas v. Greyhound
Lines, 59 F.3d 759, 763 (8th Cir. 1995).          Slathar's "status as an
experienced and thus higher paid employee [ ] does not in itself permit an
inference of age discrimination."    Serben v. Inter-City Mfg. Co., 36 F.3d
765, 766 (8th Cir. 1994) (per curiam), cert. denied, 115 S. Ct. 1402
(1995).   Age discrimination may exist when an employer terminates an
employee based on a factor such as experience or salary when the employer
presupposes a correlation with age and uses that factor as a proxy for age.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 612-13 (1993).          However, a
decision to terminate an employee solely because of salary or length of
service is not age discrimination.      Id. at 611.      Age and these other
factors are analytically distinct.    Id.


     Relying on St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993),
Slathar argues that the court's instruction confused the substantive issues
that the jury was supposed to decide, somehow injecting procedural issues
into the jury's decision and effectively increasing his burden of proof.
St. Mary's Honor Center, 113 S. Ct. at 2746, was a Title VII case tried to
the court.    The Court's discussion of McDonnell Douglas burden shifting
offers no support for Slathar's argument.     Reading the instructions as a
whole, it is evident that the jury's consideration was directed to whether
age was the determining factor in the decision to discharge Slathar, and
Slathar had the burden of proving that he




                                     -4-
was discharged because of his age.        While the instruction dealt with
business judgment, pension status, salary, and seniority, the instruction
plainly stated the ultimate issue for the jury's determination.         See
Walker, 995 F.2d at 849; Hazen Paper Co., 507 U.S. at 611-613.          The
district court did not abuse its discretion by giving the proffered
instruction.


     Furthermore, the district court did not abuse its discretion by
refusing to instruct the jury that if it found that Slathar was discharged
because of his pay, it could consider that his pay is tied to his
experience and age.   In proposing this instruction, Slathar misconstrues
the Court's statement in Hazen Paper Co., 507 U.S. at 612-13, which noted
that age discrimination may exist when an employer uses another factor as
a proxy for age.   The Age Discrimination in Employment Act requires that
an employer not discriminate based on age.   It does not require an employer
to ignore an employee's other characteristics.       The ultimate test is
whether the company discriminated against Slathar because of his age, and
the district court properly instructed the jury on this question.


                                    II.


     Slathar next argues that the district court should have admitted the
testimony of Anita Darnell, a former human resources manager at Sather's,
regarding a phone conversation she had with Douglas Pendgraft, the Sather's
Corporate Director of Personnel.   Darnell said that she did not participate
in the decision to terminate Slathar.   Upon learning that Slathar had been
terminated, Darnell telephoned Pendgraft and informed him that she believed
terminating Slathar was a risky decision because Slathar was in a protected
group based on his age and perhaps his disability.      Pendgraft responded
"that Sather's would take care of it."




                                    -5-
     The district court refused to allow Darnell's testimony on this
subject, finding it was irrelevant under Federal Rule of Evidence 401
because Darnell had not participated in the employment decision, the
conversation took place after the decision to terminate Slathar had been
made, and it amounted to nothing more than her opinion regarding the
company's potential exposure.      Further, the court found that the value of
the proposed testimony was far outweighed by its prejudicial impact.             See
Fed. R. Evid. 403.


     "Admission    of   evidence   is   a     matter   for   the   district   court's
discretion and we will defer to the district court's ruling absent an abuse
of discretion."    Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir.
1990).    Stray remarks and statements by nondecisionmakers are not direct
evidence of discriminatory motive.      See Beshears v. Asbill, 930 F.2d 1348,
1354 (8th Cir. 1991).   Darnell's testimony that she told a senior manager
that Slathar was in a protected class is not evidence of discrimination.
See Bashara v. Black Hills Corp., 26 F.3d 820, 823-24 (8th Cir. 1994)
(holding that human resources manager's expression of concern over possible
age discrimination claim was the "equivalent of a stray remark" and did
"not constitute evidence of discriminatory animus").


     Darnell was not involved in the decision to terminate Slathar, and
she did not offer her opinion of the decision until after it had been made.
Pendgraft's response is much too ambiguous to be considered any sort of
admission by company management, and it is not evidence of discriminatory
intent.


     The impact of Darnell's testimony would have been quite prejudicial.
"Although it had no direct bearing on the issue to be decided . . . this
testimony embellished the circumstantial evidence directed to that issue
by adding `smoking gun' type evidence," the opinion of a company manager.
Schrand v. Federal




                                        -6-
Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988).                 Such prejudice
substantially outweighs any probative value the proposed testimony might
have.     The district court did not abuse its discretion by excluding
Darnell's testimony.


                                         III.


        Slathar contends that the district court erred by not striking a
portion of the company's closing argument.        Addressing the issue of damages
and referring to the testimony of Slathar's expert Varns, the company
argued:


        [L]adies and gentlemen, you'll recall Mr. Varns stated Mr.
        Slathar drew nine to eleven weeks of unemployment compensation.
        He worked 46 out of the 52 weeks that year, and yet he's
        drawing unemployment compensation, making $21.00 an hour, 32 to
        40 hours a week. Take a look at the exhibit when you get back
        there. Ladies and gentlemen, that's a fraud against the State.


The district court overruled Slathar's objection to this argument.
Slathar now argues that we should grant a new trial because this argument
was based on evidence not contained in the record.


        "[C]losing arguments are made under the direct control of the trial
court.        We will not disturb the court's ruling unless an abuse of
discretion occurred.       To constitute reversible error, statements made in
closing argument must be plainly unwarranted and clearly injurious."
Pearce v. Cornerstone Clinic for Women, 938 F.2d 855, 859 (8th Cir. 1991)
(citations omitted).


        The    company's   argument   addresses   both   damages   and   Slathar's
credibility as a witness.        Both parties argue the substantive issue of
whether Slathar violated Minnesota law and actually committed fraud on the
state.    Whether Slathar committed fraud on the state is certainly not a
question for us to decide here, and it was not an issue for the jury in
this age discrimination case.         Counsel's




                                         -7-
conclusion that Slathar committed a fraud against the state, in our view,
exceeds the bounds of zealous advocacy.


     However, the district court instructed the jury several times that
statements of counsel were not evidence in the case.   Further, in denying
Slathar's motion for a new trial, the court stated that the comment of
defense counsel "was clearly not outcome determinative."        We cannot
conclude that this one sentence in the midst of the entire trial is so
egregious as to warrant reversal.   See Moses v. Union Pac. R.R., 64 F.3d
413, 417 (8th Cir. 1995) (holding that "[a]lthough we strongly disapprove
of defense counsel's closing argument, we decline to reverse because
plaintiff has failed to make a showing of prejudice").


     We affirm the decision of the district court.   Because we affirm, we
need not reach the issues raised in the company's cross appeal.


     A true copy.


           Attest:


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




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