                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0737n.06
                            Filed: August 24, 2005
                           File Name: 05a0737n.06
                            Filed: August 24, 2005

                                       Nos. 03-3797/03-3883

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ROBERT L. HUNTER,                                 )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
GENERAL MOTORS CORPORATION,                       )    NORTHERN DISTRICT OF OHIO
UAW LOCAL 549, and RON WILLIS,                    )
                                                  )
       Defendants-Appellees.                      )




       Before: NORRIS and DAUGHTREY, Circuit Judges, and MARBLEY,* District Judge.

       PER CURIAM. The plaintiff, Robert Hunter, appeals from a jury verdict rejecting his

allegations of race and age discrimination made against General Motors Corporation (GMC), Local

549 of the United Automobile, Aerospace & Agricultural Implement Workers of America (UAW),

and Ron Willis, chairperson of Local 549's bargaining committee. On appeal, Hunter contests the

sufficiency of the evidence to support the verdict, the admissibility of certain evidence, and various

rulings regarding jury instructions. We affirm the judgment of the district court.




       *
        The Hon. Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
Nos. 03-3797/03-3883
Hunter v. GMC

                       FACTUAL AND PROCEDURAL BACKGROUND

       In the early spring of 1999, Robert Hunter, an African-American male who was a member

of Local 549, was 54 years old and had been employed by General Motors Corporation for more than

13 years, most recently as a “blanker technician.” At that time, however, he and 84 of his co-workers

applied to become carpenter employees-in-training at GMC’s Mansfield, Ohio facility. Had Hunter

been accepted into the program, he would have been paid “approximately $3 more an hour than [the

$26 per hour he was earning.]”

       In settling upon a process for selecting five individuals for the employees-in-training

program, GMC’s employment supervisor, Larry Ware, and the company’s personnel director, Jim

Mennier, “were looking for a joint process, one that involved both management and union.” In

accordance with that goal, the two parties were each given a set of the 85 completed applications and

asked to “come back with a recommended group to be interviewed.” The two lists of recommended

individuals were then combined and each of the 28 selected employees, including the plaintiff, were

interviewed for one-half hour.1 In each instance, the same committee of nine persons -- six union

representatives and three company representatives -- plus Ware, met together to interview the

candidates and asked the applicants the same 19 questions, focusing in part upon the applicants’

trade knowledge and experience.




       1
           Three of the 28 applicants selected for interviews were African-Americans.

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Hunter v. GMC

       After each interview, the committee members, without consulting with each other, scored

the applicant on a form provided to them.2 Ware threw out each applicant’s high and low score,

averaged the remaining seven scores, and ranked the interviewees from high to low. In that ranking,

the plaintiff had the lowest score among the 27 applicants who actually completed the interview

process. Ware also ranked the interviewees according to seniority and allowed the committee to

compare the interview results with that seniority chart.

       The company representatives on the committee expressed a desire to select the five highest

scoring individuals (Roberts, Craft, Shiplet, Baughman, and Coleman) for the employees-in-training

program. General Motors did indeed “promote” Roberts, Craft, and Coleman, but Shiplet and

Baughman were replaced in the program by two more-senior employees whose interview scores were

virtually identical to those of Shiplet and Baughman.

       When Hunter learned of the adverse decision on his application for the employee-in-training

program, he filed a written complaint with the company’s Equal Employment Opportunity officer,

alleging racial and age bias in the decision-making process. In support of that charge, he noted that

all five of the employees eventually selected for the carpenter employees-in-training program were

both white and younger than Hunter.

       While that complaint process was running its course, the plaintiff, as an alternate way of

entering the carpentry trade at the plant, sought from the union a journeyman carpenter’s card. Ron

Willis, however, harbored doubts about the plaintiff’s carpentry qualifications and relayed those


       2
         Ware merely conducted the interviews and did not include his impressions of the applicants
in any of his later tabulations.

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Nos. 03-3797/03-3883
Hunter v. GMC

concerns to individuals at the union’s headquarters in Detroit. In response, the Skilled Trades

Department of the UAW requested that Hunter provide them with earnings information from a prior

non-union job so that the union leaders could verify the plaintiff’s claimed previous carpentry

experience. Hunter not only did not respond to that request, but he also ignored a second letter from

the certifying branch of the union that sought the same necessary documentation. Consequently, the

union never issued the journeyman carpenter’s card to the plaintiff.

        After exhausting his administrative remedies in his effort to overturn the company’s carpenter

employees-in-training selection decision, Hunter filed this action in federal district court against

General Motors, against Local 549, and against Ron Willis, the local’s shop chairperson. In his

complaint, he alleged that the actions of the defendants contravened relevant provisions of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e-17, and Ohio Revised Code § 4112.02. He further

asserted that the union breached its contractual duty to him to represent him fairly and protect his

best interests.

        Following a period for discovery, the defendants moved for summary judgment in their favor

on all claims. The district court first noted that “Hunter has apparently abandoned” his breach of

contract claim and thus did not address that cause of action in its ruling. The court denied the

remainder of the summary judgment motions, however. At the ensuing trial, the parties adduced

evidence relating to the carpenter employees-in-training selection process and the plaintiff’s efforts

to obtain a journeyman carpenter’s card. In addition, Hunter and other African-American employees

of the Mansfield plant testified about race relations at the facility, highlighting instances of

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Nos. 03-3797/03-3883
Hunter v. GMC

hangman’s nooses being placed around the plant and racially-insensitive graffiti and other slogans

being painted in the work and break areas.

       At the conclusion of the trial testimony, the jury returned a verdict in favor of the defendants

on all claims. The district court then rendered judgment in accordance with that verdict, leading to

this appeal.

                                          DISCUSSION

           I. Racial Discrimination in the Employees-in-Training Selection Process3

       Hunter first submits that the jury’s verdict on his racial discrimination claim regarding the

employees-in-training program “was against the great weight of the evidence.” We may not,

however, address this allegation of error because, as we stated explicitly in Pennington v. Western

Atlas, Inc., 202 F.3d 902, 911 (6th Cir. 2000), “[i]n order to preserve a challenge to a jury verdict

as being against the great weight of the evidence, the appellant must have made a motion for a new

trial in district court.” Because the appellate record offers no indication that Hunter filed such a

motion for new trial, this claim is not properly before the panel.

       In any event, overwhelming evidence supports the conclusion reached by the jury in this

regard. The record establishes that Hunter was far from the most qualified individual for inclusion

in the carpenter employees-in-training program. The plaintiff’s own lack of qualifications, not




       3
         In his appellate brief, Hunter makes absolutely no argument or other mention of an age
discrimination claim. Any issue related to the plaintiff’s allegations of age discrimination has,
therefore, been abandoned. See United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002) (court
will consider claim abandoned if not adequately briefed on appeal).

                                                -5-
Nos. 03-3797/03-3883
Hunter v. GMC

improper racial animus on the part of the defendants, prevented him from attaining the position he

desired.

           II. Racial Discrimination in the Denial of a Journeyman Carpenter’s Card

        Similarly, Hunter did not file a motion for new trial challenging the finding of the jury that

race played no factor in the decision of Local 549 and Ron Willis not to issue the plaintiff a

journeyman carpenter’s card. Thus, we are also precluded from addressing this issue on appeal. See

Pennington, 202 F.3d at 911. Even if we were to consider the claim, however, we would hold that

Hunter is entitled to no relief. The appellate record is uncontradicted that Hunter failed to comply

with repeated requests to provide information about his prior employment that the decision-maker

found necessary to determine the plaintiff’s qualifications for receipt of the journeyman carpenter’s

card.

               III. Use of Hunter’s Income Tax Returns to Impeach Credibility

        During cross-examination, Hunter testified that the atmosphere at the Mansfield plant was

permeated with racism and that such a situation posed a problem for him. Abruptly, counsel for

General Motors then asked, “Mr. Hunter, is it something that would be as significant to you as

declaring no income on your income tax?” Subsequently, the court admitted into evidence a copy

of the plaintiff’s 2000 federal income tax return on which Hunter claimed no income whatsoever.

The plaintiff now contends that admission of that evidence was improper because he was unfairly

surprised by the fact that the defendants had obtained such information, because the evidence was

more prejudicial than probative, because the evidence was irrelevant to the issue of Hunter’s



                                                -6-
Nos. 03-3797/03-3883
Hunter v. GMC

character, and because use of the information violated the plaintiff’s Fourth and Fifth Amendment

rights.

          We review allegations of error in the evidentiary rulings of a trial judge only for an abuse of

discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). We find no such abuse present

here. Hunter’s assertions that he was unfairly surprised by the cross-examination and that the

defense’s possession of the information contravened constitutional principles are without merit.

Indeed, General Motors’s attorney, without objection or contradiction from the plaintiff, indicated

that he received the contested documents from Hunter himself during the discovery process in

response to the defense’s request for production of documents. Additionally, despite any prejudicial

effect that the introduction of the tax return might have had upon the jury, the district judge correctly

ruled that the evidence also was probative of Hunter’s truthfulness. Pursuant to the provisions of

Federal Rule of Evidence 608(b), cross-examination may delve into specific instances of conduct

of the witness if probative and if that conduct concerns “the witness’ [sic] character for truthfulness

or untruthfulness.” Because Hunter knew that he had received a substantial salary during the

relevant tax year, yet failed to claim such a taxable source of income, the return did indeed reflect

upon the plaintiff’s truthfulness and was, therefore, admissible at trial.

                      IV. Jury Instructions Not Given to the Finders of Fact

          In multiple allegations of error, Hunter also contends that the district judge erred in failing

to give certain instructions to the jury. Specifically, he asserts that the court should have informed

the finders of fact about the legal elements of claims involving a hostile work environment, a union’s

refusal to represent its members, and an employment decision based upon mixed motives.

                                                   -7-
Nos. 03-3797/03-3883
Hunter v. GMC

       Hunter, however, either explicitly or tacitly abandoned both his hostile work environment

and breach of duty of fair representation claims. A court need not deliver instructions relevant to

claims that are not raised or prosecuted by the litigants.

       Moreover, our prior decisions make clear that no reversible error was committed by the

failure of the district judge to offer a mixed motive jury instruction. When alleging that mixed

motives were involved in an employment decision:

       [T]he plaintiff must produce direct evidence that the employer considered
       impermissible factors when it made the adverse employment decision at issue. Once
       the plaintiff has shown that the unfavorable employment decision was made at least
       in part on a discriminatory basis, the burden shifts to the employer to prove by a
       preponderance of the evidence that it would have taken the same adverse action even
       if impermissible factors had not entered into its decision.

Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 571 (6th Cir. 2003) (en banc) (emphasis added)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). In this case, the only direct evidence

of discrimination to which Hunter points is the alleged statement of Ron Willis prior to the

interviews for the employees-in-training program “that five whites had retired, and he was going to

put five whites back in.” Focusing upon that comment, Hunter argues that his attempt to gain entry

into the coveted program was sabotaged, at least in part, by improper racial animus. Willis’s

comment cannot, however, support a mixed motive cause of action against General Motors, the

ultimate decision-maker for the employees-in-training program, because Willis was acting as a

representative of the union, not the company, in his participation in the interviewing process.

                            V. McDonnell Douglas Jury Instruction




                                                -8-
Nos. 03-3797/03-3883
Hunter v. GMC

       In a final appellate issue, Hunter argues that the district court erred in instructing the jury

regarding the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). The plaintiff himself, however, requested that such an instruction be given at trial.

Except when, in the discretion of the appellate court, the interests of justice demand otherwise, a

party will not be heard to complain about any action that he invited. See United States v. Barrow,

118 F.3d 482, 490-91 (6th Cir. 1997). This appeal presents no such justification for abandonment

of the invited error doctrine.

                                          CONCLUSION

       This appellate record establishes that the plaintiff was excluded from desirable carpentry

programs at General Motors’s Mansfield plant because he was the least qualified of the applicants

and because of his own failure to comply with requests for production of necessary information, not

because of his race or age. Finding no reversible error in any of the issues presented by the plaintiff,

we AFFIRM the judgment of the district court.




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