                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 96-3614
                                   ___________

Arvin Buchholz,                        *
                                       *
            Appellant,                 *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   Northern District of Iowa.
Rockwell International Corporation,    *
                                       *
            Appellee.                  *
                                  ___________

                               Submitted: May 21, 1997

                                   Filed: July 23, 1997
                                   ___________

Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                       ___________


WOLLMAN, Circuit Judge.

       Arvin Buchholz appeals from the judgment entered by the district court1 on the
jury’s verdict in favor of Rockwell International Corporation (Rockwell). We affirm.




      1
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.
      Buchholz brought suit against Rockwell under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623(a)(1), alleging that Rockwell refused to
hire him as a test technician because of his age after he was terminated from his
previous position during a reduction in force.

        On appeal, Buchholz challenges the denial of his motion for a new trial, a ruling
which we review for abuse of discretion. See Gearin v. Wal-Mart Stores, Inc., 53 F.3d
216, 218 (8th Cir. 1995) (per curiam). “A new trial is required only when necessary
to avoid a miscarriage of justice,” id. at 219, and “inaccuracies or errors at this stage
of the proceeding should not form the basis for setting aside verdicts, unless prejudicial
error is shown.” Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968).

                                             I.

      Buchholz first argues that the district court should have granted his motion for
a new trial based on Rockwell’s failure to disclose certain items during discovery.

                                 A. The Hill Complaint
        Despite Buchholz’s request for information regarding age discrimination
complaints filed against Rockwell “at any time since January 1, 1985,” and a magistrate
judge’s order compelling an answer to that request, Rockwell failed to disclose an age
discrimination complaint filed with the Equal Employment Opportunity Commission
(EEOC) by John Hill, a former employee, in August of 1994. Counsel for Buchholz
first learned of the Hill complaint during the first day of trial. The district court ordered
Rockwell to produce the Hill file immediately and asked counsel for Buchholz what
other relief he sought. Counsel requested that Rockwell be ordered to provide the
name of a “mystery witness” mentioned in an EEOC questionnaire that Hill completed
in October of 1994. Rockwell complied. The court advised that it “would certainly
give the Plaintiff more than the usual reign [sic], so to speak, on rebuttal if something


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develops on this.” The court also expressed its willingness to recess the trial to resolve
the issue of the mystery witness.

       The district court granted Buchholz’s request that he be permitted to take the
deposition of the mystery witness. In a telephone conference following the deposition,
counsel for Buchholz informed the court that he did not intend to call the witness,
explaining that although the information, if available earlier, might have affected
Buchholz’s approach, “at this point given the fact that much of [the witness’s]
testimony is not directly relevant to the test tech position, but rather to other positions
at Rockwell,” Buchholz would not call the person as a witness at trial.

       Although Buchholz contends that had he known about the Hill complaint, he
might have altered trial preparation and strategy decisions, he had the opportunity to
review the witness’s testimony before the completion of the trial and to request relief.
See Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 997 (8th Cir. 1989)
(party’s ample opportunity at trial to examine belatedly disclosed evidence was factor
to consider in appeal from denial of new trial motion); compare Greyhound, 402 F.2d
at 144 (records were not given to defendant until after conclusion of trial). He received
all the relief he requested, chose to forego using the witness’s testimony, and did not
move for a continuance or mistrial or request any other form of relief the district court
might have fashioned to alleviate any possible harm. See Bunting v. Sea-Ray, Inc., 99
F.3d 887, 890 (8th Cir. 1996); Gearin, 53 F.3d at 219; Birchem v. Burlington Northern
R.R. Co., 812 F.2d 1047, 1050 (8th Cir. 1987).

       Moreover, we agree with the district court that the witness’s deposition
testimony was not as indicative of discrimination as initially anticipated and thus would
not have been as helpful as expected. Accordingly, we conclude that the district court
did not abuse its discretion in declining to grant Buchholz a new trial on this ground.
                                B. The Courtier Notes


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        Buchholz requested “[a]ll documents that set out or reflect why Plaintiff was not
hired . . . .” Despite this request, Rockwell failed to disclose notes taken by human
resources specialist Lynn Courtier during her interviews with the supervisors who failed
to hire Buchholz. The notes were referred to on the third day of the five-day trial when
human resources specialist Charlene Boardman (testifying in place of Courtier) stated
that she had reviewed them in preparation for testifying. On the fourth day of trial, the
district court ordered Rockwell to produce the notes. Buchholz asserts that the notes
could have been used as a discovery tool and to impeach the testimony of several
Rockwell employees.

       We conclude that the district court did not abuse its discretion in denying
Buchholz’s motion for a new trial on this ground. Counsel for Buchholz became aware
of the notes on February 2, 1994, more than a year prior to trial, when during her
deposition Courtier responded to several questions by saying, “I would have to refer
to my notes,” and disclosed that the notes were stored in her office. Counsel for
Buchholz replied, “I would assume that we are going to be requesting those.”
Buchholz’s awareness of the existence of the notes more than a year prior to trial
erodes his claim that he was prejudiced by their belated disclosure. See Birchem, 812
F.2d at 1050 (new trial not warranted where moving party was aware of substance of
unavailable witness’s testimony months before trial and failed to depose witness or to
move for continuance); cf. Myers v. Norfolk Livestock Mkt., Inc., 696 F.2d 555, 558
(8th Cir. 1982) (no abuse of discretion in denying motion for continuance where party
knew of documents two months prior to trial and made no effort to obtain them).

      Furthermore, the notes were ultimately disclosed, and Buchholz had the
opportunity to use them at trial, which he declined. Compare Greyhound, 402 F.2d at
144 (undisclosed records not made available to defendant until after trial). Moreover,
Buchholz did not call any of several witnesses who could have testified regarding their
knowledge of the events mentioned in the notes, nor did he move for a continuance,


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mistrial, or any other relief. See Gearin, 53 F.3d at 219; Birchem, 812 F.2d at 1050.
Finally, as the district court noted, it is possible that Buchholz’s decision not to use the
notes was a tactical decision, as the notes contained information detrimental to
Buchholz’s case.
                                               II.

        Buchholz next argues that he is entitled to a new trial based on the district
court’s refusal to give a mixed motive jury instruction. Under the mixed motive
analysis of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), once the plaintiff
adduces evidence showing that the employer’s decision was motivated by an
illegitimate criterion, the burden shifts to the employer to establish that it would have
taken the same action in the absence of discrimination. See Philipp v. ANR Freight
Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995). To merit a Price Waterhouse instruction,
Buchholz must adduce evidence “‘showing a specific link between the discriminatory
animus and the challenged decision,’ ‘sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the challenged decision.’”
Id. (quoting Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 201 n.1,
202 (8th Cir. 1993)). Stray remarks by nondecisionmakers and statements by
decisionmakers unrelated to the decisionmaking process are insufficient to establish this
necessary link. See id.

       Buchholz contends that when he inquired as to why he was not hired for a test
technician position, the hiring supervisor commented to the effect that the “young kids”
whom he hired “sure were sharp.” Buchholz argues that this comment showed a
specific link between a discriminatory animus and the supervisor’s decision not to hire
him. In our view, however, this comment alone, if in fact made, would not entitle
Buchholz to a Price Waterhouse instruction. Although purportedly made by a
decisionmaker, the comment did not link Buchholz’s nonselection with a discriminatory
animus suggesting that the decisionmaker considered improper factors. Rather, it


                                            -5-
constituted an innocuous comment on the abilities of the new hires, whom the sixty-
two-year-old supervisor simply described as “young kids.” See Merrick v. Farmers
Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990) (decisionmaker’s comment that he
chose another applicant because he was “a bright, intelligent, knowledgeable young
man” was nothing more than a stray comment). The district court therefore did not err
in declining to give a Price Waterhouse instruction.


                                           III.

       Buchholz argues that there was insufficient evidence to support a verdict in favor
of Rockwell, contending that Rockwell failed to offer any evidence rebutting
Buchholz’s prima facie case of discrimination. Under the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), after the plaintiff
establishes a prima facie case, the defendant must articulate a legitimate,
nondiscriminatory reason for its adverse action. See Ryther v. KARE 11, 108 F.3d
832, 836 (8th Cir. 1997) (en banc), cert. denied, 65 U.S.L.W. 3854 (U.S. June 27,
1997). “This burden is not onerous,” Hayes v. Invesco, Inc., 907 F.2d 853, 855 (8th
Cir. 1990), and the explanation need not be demonstrated by a preponderance. See id.
“The defendant need not persuade the court that it was actually motivated by the
proffered reasons.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981). Rather, “[i]t is sufficient if the defendant’s evidence raises a genuine issue of
fact as to whether it discriminated against plaintiff,” id. at 254-55, that “would allow
the trier of fact rationally to conclude that the employment decision had not been
motivated by discriminatory animus.” Id. at 257. If the defendant offers a facially
nondiscriminatory explanation, regardless of its persuasiveness, the presumption in
plaintiff’s favor evaporates and it is left for the trier of fact to determine whether the
plaintiff has proven that the defendant’s action was motivated by discrimination. See
Ryther, 108 F.3d at 836.




                                           -6-
       In explaining why they failed to hire Buchholz, the supervisors to whom his
resume was routed testified that they did not remember ever receiving his resume and
therefore did not consider him for a test technician position. Relying on Turnes v.
AmSouth Bank, N.A., 36 F.3d 1057 (11th Cir. 1994), Buchholz argues that because
the managers testified that they could not remember seeing Buchholz’s resume,
Rockwell failed to rebut Buchholz’s prima facie case with specific evidence of why he
was not hired. In Turnes, AmSouth admitted the plaintiff was interviewed, but the
interviewer could not recall why she did not recommend hiring him. The Eleventh
Circuit held that because AmSouth “came forward with no explanation of why it
rejected Turnes based on what it knew when it rejected him,” the plaintiff’s prima facie
case remained unrebutted. Id. at 1062.

       Buchholz’s reliance on Turnes is misplaced, for Rockwell’s hiring supervisors
did not claim that they could not remember why they considered but did not hire
Buchholz. Rather, they explained that they did not even remember receiving his
resume and that this was the reason they did not consider him. This explanation
constituted an articulation of a specific, nondiscriminatory reason for Rockwell’s failure
to hire Buchholz that raised a question of fact regarding Rockwell’s motivation. See
Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1364 (10th Cir. 1994) (hiring
manager’s testimony that he was unaware plaintiffs had applied for positions raised
question of fact regarding whether failure to hire plaintiffs was motivated by
discrimination and thus satisfied employer’s burden of production).

                                           IV.

       Buchholz argues that the district court abused its discretion in admitting his
applications for various positions at Rockwell and the reasons for his nonselection for
those positions, contending that this evidence was irrelevant because it pertained to
positions other than that of test technician. Buchholz, however, opened the door to this
evidence by mentioning that he had applied for positions other than test technician, by

                                           -7-
describing his past experience at Rockwell and introducing favorable evaluations that
he had received in previous positions, and by recounting his conversation with a hiring
supervisor in which he expressed his dismay at not being hired as a test technician
despite “everything [he] did.” The district court therefore did not abuse its broad
discretion in admitting the applications and the reasons for Buchholz’s nonselection for
the other positions. See Paul v. Farmland Indus., Inc., 37 F.3d 1274, 1277 (8th Cir.
1994).

      The judgment is affirmed.

      A true copy.

             Attest:

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




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