                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 97-1049
                                    ___________

Kenneth L. Anderson,                     *
                                         *
             Appellant,                  * Appeal from the United States
                                         * District Court for the District of
      v.                                 * Nebraska.
                                         *
Genuine Parts Company, Inc.,             *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: September 10, 1997
                                  Filed: November 14, 1997
                                   ___________

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

BRIGHT, Circuit Judge.

       Kenneth Anderson worked as an "outside" sales representative for Genuine Parts
Company (GPC) until GPC demoted him to an "inside" sales position, at a significantly
reduced wage. Anderson initially accepted the demotion, but later resigned and
brought this action under the Age Discrimination in Employment Act, 29 U.S.C. §§
621-34 (ADEA), and the Nebraska Act Prohibiting Unjust Discrimination in
Employment Because of Age, Neb. Rev. Stat. §§ 48-1001 to 1010 (1993). A jury
returned a verdict of dismissal in favor of GPC and the district court denied Anderson’s
motions for a new trial and for judgment as a matter of law. Anderson then brought this
appeal.

       Anderson asserts the district court erred in: (1) excluding evidence of GPC’s
personnel policies and the jury verdict in the prior successful age discrimination suit
against GPC by another older outside sales representative of the company; (2) denying
his motion for judgment as a matter of law based on the theory of issue preclusion; and
(3) excluding instruction on general damages under the Nebraska age discrimination
statute. We affirm.

I.    BACKGROUND

        Genuine Parts Company (d/b/a NAPA Auto Parts) is engaged in the business of
retail and wholesale sales of automotive replacement parts. In Omaha, Nebraska, GPC
has a distribution center and six branch stores. Dale King serves as the local manager
responsible for the GPC stores in Omaha, Nebraska and Council Bluffs, Iowa. King
supervises the store managers and outside sales force. Al Alexander, the general
manager, oversees the sales and operation of the distribution center and GPC-owned
stores for the Omaha operation.

        In mid-December, 1992, Alexander met with his supervisors in Atlanta, Georgia
and was directed to eliminate two positions from his "outside" sales force. Alexander
testified that upon his return to Omaha he directed King to identify and recommend two
"outside" sales representatives for demotion.

       On January 7, 1993, Alexander and King met with Kenneth Anderson and Larry
Maschka, in separate meetings, and advised them that GPC was removing them from
the "outside" sales force and demoting them to "inside" sales positions at a substantially
reduced pay. GPC gave both men several days to consider whether they wanted the
“inside” positions. Both men accepted the new job assignments. GPC gave

                                           -2-
"reduction-in-force" reasons for the demotion and asserted reasons for selecting
Anderson and Maschka as the most appropriate persons to be removed from the outside
sales force. Specifically, GPC claimed that Maschka and Anderson's sales
performances were not as promising1 as other outside sales representatives.

       Anderson and Maschka were the two oldest and most senior of the nine outside
sales representatives. Anderson and Maschka began working for GPC in 1959 and
1956, respectively. In 1991, GPC added two new outside sales representatives, David
Muellner and David Zenchuk, both of whom are less than forty years old.

       Maschka resigned his employment with GPC in April 1993 and went to work for
Art’s Auto Parts as an outside sales representative. Anderson resigned his employment
with GPC in May of 1993 and also went to work for Art’s Auto Parts as an outside
sales representative. In his resignation letter to GPC, Anderson claimed that he
considered his termination of employment to be a constructive discharge, stating that
he was forced to leave the company or suffer a substantial decrease in retirement
benefits.
       Both Anderson and Maschka filed separate age discrimination actions.
Maschka's age discrimination action was tried in March of 1996, resulting in a verdict
in Maschka’s favor. Specifically, the jury found GPC liable for age discrimination,
determined that GPC's action was wilful, and found that GPC constructively discharged




      1
       GPC conceded that two recently-hired outside representatives, David Zenchuk
and David Muellner, had poorer sales performances than Maschka and Anderson.
However, GPC maintains that Zenchuk was quickly increasing his sales volume at a
rate in which Zenchuk would soon surpass both Maschka and Anderson's sales
volumes. In addition, GPC claims that it did not consider Muellner for demotion
because Muellner was an automotive paint specialist and GPC had set a goal of
expanding its sales in the automotive paint market.

                                         -3-
Maschka from his employment. We affirmed the judgment in Maschka. Maschka v.
Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997).

       Following the jury's verdict in the Maschka case and shortly before trial in
Anderson's case, GPC filed a motion in limine, requesting exclusion of certain portions
of the GPC personnel manual regarding layoffs and termination from employment. The
district court conditionally granted GPC’s motion based on the district court’s
conclusion that the parties had stipulated in the uncontroverted facts of the Pretrial
Order that Anderson was demoted. The district court reasoned that only provisions
regarding demotions in the personnel manual would be relevant to Anderson's case.
However, the manual did not contain any provision specifically applicable to
demotions.

       Anderson’s case came to trial in October of 1996. After the close of all of the
evidence and prior to the submission of the case to the jury, Anderson requested that
the district court enter judgment for plaintiff Anderson, as a matter of law consistent
with the judgment entered in Maschka’s action against GPC. Anderson’s motion relied
upon the doctrine of issue preclusion, asserting that GPC, having lost on the age
discrimination claim in Maschka, should be bound to that determination in Anderson's
case. The district court denied Anderson's motion. The jury returned a verdict of
dismissal in favor of GPC. Anderson moved for a new trial and renewed his motion
for judgment as a matter of law, both of which the district court denied. Anderson then
brought this appeal from the adverse judgment.

II.   DISCUSSION

      A.     Exclusion of GPC’s Personnel Policies and Judgment in Maschka

      Anderson contends that the district court erred by not allowing Anderson to
submit evidence of GPC’s personnel policies and the judgment entered in the Maschka

                                          -4-
case. We review the district court's denial of a motion for a new trial and its
evidentiary rulings under an abuse of discretion standard. Schultz v. McDonnell
Douglas Corp., 105 F.3d 1258, 1259 (8th Cir. 1997). Additionally, the standard for
considering a request for a new trial is whether the exclusion of the evidence was in
error and "affected the substantial rights of any party sufficient to warrant a new trial."
O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir. 1990).


             1.     GPC's personnel policy manual in its entirety, GPC's
                    layoff policy, and GPC's termination policy and checklist

       The district court found that because Anderson’s claim involved a “demotion”
rather than a “termination” or “layoff,” the jury should only consider those policies
dealing with demotion. The district court based this determination on the parties'
stipulations in the Pretrial Order. Specifically, in paragraph 7 of the “Uncontroverted
Facts” of the Pretrial Order, the parties stipulated to the following statement: “Plaintiff
was notified by the Defendant effective January 1, 1993 [that] Plaintiff was demoted
to the position of a Counter Employee. . . .” Jt. App. at 61. Furthermore, during trial,
the following exchange occurred:

      THE COURT: . . . Are we talking about demotion, are we talking about
      -- just what are we talking about? . . .

      MR. YOUNG: I agree, your Honor. The position of the plaintiff is this:
      We agreed that there was a demotion.

Jt. App. at 469.

        Anderson argues that notwithstanding this exchange and the Pretrial Order, the
parties’ pleadings made it clear that this case involved the issues of termination and
layoff, as well as demotion. Also, Anderson submits that Alexander and King both
testified that Anderson was merely offered the inside sales position rather than ordered


                                           -5-
to accept the new position. According to Anderson, this testimony shows that
Anderson was terminated and then offered a new position, rather than demoted.

       Anderson further argues that the exclusion of this evidence unduly prejudiced his
case. Anderson argues that the termination policy and termination checklist would
have shown that GPC did not follow their own termination policy. Anderson notes that
the personnel manual contained a voluntary and involuntary layoff policy that required
GPC to terminate first those with the least seniority. Anderson maintains that this
layoff policy in the personnel manual sets the general objective criteria to determine
which persons should be removed during a layoff. According to Anderson, had this
policy been followed, the two least senior sales representatives, Zenchuk and Muellner,
would have been removed (Zenchuk and Muellner are both in their thirties and had the
lowest dollar sales volumes for 1991 and 1992).

      In our view, the district court's ruling did not constitute an abuse of discretion.
The Pretrial Order supersedes all previous pleadings and “control[s] the subsequent
course of the action unless modified by a subsequent order.” Fed. R. Civ. P. 16(e).
This court has previously ruled that, “'[t]he pretrial order measures the dimensions of
a lawsuit.'" Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1335 (8th Cir. 1985)
(quoting Seneca Nursing Home v. Secretary of Social & Rehabilitation Servs. of
Kansas, 604 F.2d 1309, 1314 (10th Cir. 1979)). "Accordingly, a party may not offer
evidence or advance theories during trial which violate the terms of a pretrial order.”
Hale, 756 F.2d at 1335 (citing United States v. First Nat'l Bank of Circle, 652 F.2d 882,
886 (9th Cir. 1981)). We therefore conclude that the district court did not err in relying
on the Pretrial Order in defining the parameters of this trial and excluding termination
policies as irrelevant. Moreover, Anderson offered no foundation evidence to show
that GPC had previously followed termination policies when making other demotions.
Thus, GPC's termination policies may well have been unduly prejudicial. See Fed. R.
Evid. 403. Thus, the district court's determination to exclude this evidence did not
constitute prejudicial error.

                                           -6-
             2.     GPC's performance appraisal policy and GPC's disciplinary
                    policy

       GPC's performance appraisal policy requires management to evaluate and
document each employee's performance and to establish an "action plan," which is
agreed upon by management and the employee. Similarly, GPC's disciplinary policy
also sets forth a progressive systematic method for correcting employee deficiencies.

       Anderson argues that GPC's performance appraisal policy and GPC's disciplinary
policy2 would have discredited King's testimony of Anderson's alleged performance
deficiencies, since King had never documented any significant deficiency in Anderson's
performance. In addition, Anderson asserts that GPC never documented any attempt
to improve Anderson's performance.

        Anderson's argument that these policies were relevant for the purpose of
challenging King's assertions has some merit. Nevertheless, the theory of GPC's
defense and the focus of King's testimony, which apparently the jury accepted, were
that Anderson was demoted as part of a reduction-in-force. To implement the
reduction-in-force, GPC assessed Anderson's performance and potential performance
in relation to other outside sales representatives rather than GPC's sales requirements.
Therefore, Anderson's performance as compared to company goals and requirements
is arguably irrelevant. Accordingly, we conclude that the district court's rulings with
respect to the performance appraisal policy and the disciplinary policy did not
constitute reversible error.


      2
        Anderson's contention with respect to GPC's disciplinary policy differs from his
other evidentiary arguments because the district court ultimately did allow him to enter
the policy into evidence. However, Anderson argues that because the district court did
not allow him to introduce the disciplinary policy until the end of his rebuttal case, he
suffered prejudice because he could not use the policy to more effectively cross-
examine King.

                                          -7-
             3.     GPC's anti-discrimination policies

       The district court did not allow Anderson to enter into evidence GPC’s anti-
discrimination policies. GPC has three separate anti-discrimination policies, which
consist of an equal employment opportunity policy, an affirmative action policy, and
an affirmative action program. GPC's anti-discrimination policies, for the most part,
profess GPC's commitment to follow the requirements and restrictions of federal and
state anti-discrimination statutes.3 Anderson argues that GPC’s policy would have
discredited Alexander's testimony that he never realized that King had selected the two
oldest and most senior employees for demotion. In our view, this contention does not
amount to prejudicial error. GPC's decision to profess its willingness in its policy
manual to follow federal and state anti-discrimination laws would not necessarily
indicate that one of its managers was aware of the fact that the two oldest outside sales
people were being demoted. We therefore conclude that the district court's ruling did
not constitute reversible error.

             4.     Verdict in the Maschka case




      3
        GPC's Affirmative Action Program requires "each operating unit" to maintain
certain minority status information regarding its employees. Jt. App. at 265-66.
However, the policy requires each operating unit to keep information on only
applicants, recently-hired employees, recently-promoted employees, and recently-
terminated employees. Furthermore, with respect to those four categories, the
affirmative action program requires each operating unit to only record data that is
relevant to race, sex, disability, and veteran status. Id. Accordingly, we do not
consider this policy to require GPC's management to be fully aware of the age of each
of its employees before implementing a demotion.

                                          -8-
        At trial, the district court allowed Anderson to use prior testimony from the
Maschka case only for the purpose of impeaching GPC's witnesses.4 Anderson argues
that he should have been allowed to inform the jury that the Maschka jury found that
GPC committed age discrimination against Maschka. Anderson asserts that prior acts
of discrimination by an employer are relevant evidence in discrimination actions.
Anderson relies on Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153 (8th Cir.), cert
denied, 498 U.S. 854 (1990). In Hawkins, this court stated that “[b]ecause an
employer’s past discriminatory policy and practice may well illustrate that the
employer’s asserted reasons for disparate treatment are a pretext for intentional
discrimination, this evidence should normally be freely admitted at trial.” Id. at 155-56
(citations omitted).

        We fully endorse what this court has stated in Hawkins and in other cases, which
is that allowing evidence of past discrimination is necessary to assist plaintiffs in the
difficult burden of proving intentional discrimination. An employer's prior acts of
discrimination may show the employer's state of mind at the time of the adverse
employment action in question.

      However, a jury verdict does not constitute evidence. Rather, a jury's verdict
simply represents findings of fact, based on the evidence presented to it. Upon
reviewing the trial record, we note that the district court allowed Anderson ample
opportunities to present to the jury facts surrounding GPC's demotion of Maschka. In
fact, Maschka testified at Anderson's trial about GPC's adverse treatment of both
Anderson and Maschka. Furthermore, the district court allowed Anderson to cross-
examine GPC's witnesses about GPC's treatment of Maschka. Accordingly, we
conclude that the district court did not commit reversible error by excluding the jury's
verdict in the Maschka case.


      4
      When using the former testimony from the Maschka case for impeachment
purposes, Anderson was only allowed to refer to the case as “another proceeding.”

                                          -9-
      B.     Issue Preclusion

       Anderson argues that the district court erred in not granting his motion for
judgment as a matter of law based on the doctrine of issue preclusion. The doctrine of
issue preclusion, which was formerly known as collateral estoppel, provides that "when
an issue of ultimate fact has been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in another lawsuit.” United States
v. Brekke, 97 F.3d 1043, 1049 (8th Cir. 1996) (citations omitted). Under this doctrine,
a court must examine the following five factors to determine whether issue preclusion
applies to a particular case:

      (1)    the party sought to be precluded in the second suit must have been a party,
             or in privity with a party, to the original lawsuit;

      (2)    the issue sought to be precluded must be the same as the issue involved
             in the prior action;

      (3)    the issue sought to be precluded must have been actually litigated in the
             prior action;

      (4)    the issue sought to be precluded must have been determined by a valid
             and final judgment; and

      (5)    the determination in the prior action must have been essential to the prior
             judgment.


Tyus v. Schoemehl, 93 F.3d 449, 453 (8th Cir. 1996).

       Anderson maintains, and GPC does not dispute, that four of the five factors--
namely factors 1, 3, 4, and 5--unquestionably weigh in favor of Anderson's claim to
issue preclusion in the present case.



                                         -10-
        Anderson further argues that factor 2 also weighs in favor of issue preclusion
because the issues determined by the jury’s verdict in Maschka are essentially identical
to the issues in Anderson’s case. In support of his argument, Anderson cites the Tenth
Circuit opinion of Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994). In
Meredith, the Tenth Circuit applied issue preclusion to prevent Beech Aircraft from
asserting that its actions in promoting a male were motivated by nondiscriminatory
reasons because a jury, in a prior suit by another female co-employee, found that Beech
Aircraft had discriminated by promoting the male in question. Id. at 894.

       We determine that Meredith is distinguishable. In the initial sex discrimination
case against Beech Aircraft, the jury found in favor of the female plaintiff because the
jury determined Beech Aircraft had promoted, in a discriminatory manner, one
particular male over other female employees. Id. Therefore, Beech Aircraft's
discrimination in promoting the male employee over female employees was established
by the jury in the first trial. Consequently, in the second proceeding where a second
female employee sued over the same promotion decision, Beech Aircraft could not
relitigate the issue of its discrimination in promoting the male employee over female
employees.

       In contrast, the jury's finding of age discrimination in Maschka's demotion would
not necessarily eliminate any nondiscriminatory reasons GPC could assert or the jury
could find relating to the separate decision to demote Anderson. Although we
recognize the numerous similarities between the present case and the Maschka case,
and the distinct possibility that GPC demoted both men for the same reason, we
nevertheless conclude that the district judge, who presided at both trials, did not abuse
his discretion in finding that the two cases were different. We agree with the district
court's assessment that "[d]iscrimination claims are in and of themselves very factual,
and, consequently, . . . applying the doctrine of issue preclusion to situations such as
that in Anderson is inappropriate." See Jt. App. at 189.


                                          -11-
      C.     Exclusion of General Damages Jury Instructions

       Anderson raises a final issue relating to the district court's refusal to submit to
the jury, or even allow evidence, of Anderson’s claim for general damages under the
Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age. This
very argument, however, was rejected by this court in Maschka's appeal. Maschka,
122 F.3d at 568. For the reasons stated in Maschka, we similarly reject Anderson's
contention.

IV.   CONCLUSION

       The exclusion of evidence noted in this opinion falls into the realm of discretion
by the district court. We recognize that another trial judge might have admitted the
questioned evidence over objection. Indeed, some of the excluded evidence was
admitted in the Maschka case by the same district judge. Nevertheless, under an abuse
of discretion standard on evidentiary matters such as presented in this appeal, the trial
judge possesses the prerogative to admit or not admit the evidence. Accordingly, we
affirm.

      A true copy.


             Attest:


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




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