In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1355

Ellis Leroy Crabtree,

Plaintiff-Appellant,

v.

National Steel Corporation,
Granite City Steel Division,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-38-GPM--G. Patrick Murphy, Chief Judge.

Argued January 10, 2001--Decided August 20, 2001



  Before Ripple, Kanne, and Williams, Circuit
Judges.

  Williams, Circuit Judge. Ellis (Jim)
Crabtree filed this suit alleging that
his former employer, Granite City Steel
Division of National Steel Corporation
("Granite City Steel"), failed to rehire
him in violation of the Age
Discrimination in Employment Act
("ADEA"), 29 U.S.C. sec. 621 et seq. The
jury found in favor of Granite City
Steel, and the district court denied
Crabtree a new trial. On appeal, Crabtree
raises a variety of discovery,
evidentiary and trial issues. We reject
each argument and affirm.

I.   BACKGROUND

  Crabtree was discharged from Granite
City Steel pursuant to a reduction in
force ("RIF"). In exchange for a
severance package, he signed a waiver and
release of claims relating to his
discharge. Later that same year, Crabtree
applied for various vacant positions
advertised by Granite City Steel. Granite
City Steel decided not to rehire Crabtree
because it determined that Crabtree was
volatile and not a team player based on
reports that he engaged in violent
confrontations with co-workers and his
involvement in a domestic violence
incident that was publicized in the local
newspaper. Crabtree sued Granite City
Steel alleging that its failure to rehire
him was on account of his age. He did not
challenge his discharge, although the
theory of his claim was that the RIF
began the process by which Granite City
Steel terminated older supervisors and
replaced them with younger ones. After
much wrangling with the district court
over continuances, discovery disputes,
and evidentiary rulings, Crabtree’s
failure to rehire claim went to
trial./1 The jury returned a verdict in
favor of Granite City Steel and Crabtree
moved for a new trial. He appeals the
district court’s denial of that motion.

II.    ANALYSIS

  Most of the wrangling with the district
court appeared to be a result of the
judge’s dissatisfaction with how the par
ties handled their discovery disputes and
were preparing for trial. On appeal,
Crabtree argues that the district court
erred in: 1) failing to adequately
monitor and manage the parties’ discovery
disputes; 2) limiting the trial time; 3)
excluding evidence that Granite City
Steel destroyed documents; 4) tendering
certain jury instructions; and 5) exclud
ing the testimony of two witnesses at
trial. We review a denial of a motion for
a new trial for abuse of discretion. May
all v. Peabody Coal Co., 7 F.3d 570, 572
(7th Cir. 1993). But, even if we find
that the district court abused its
discretion, we will not reverse a jury
verdict if the error is harmless, i.e.,
does not affect the substantial rights of
the parties. Fed. R. Civ. P. 61./2


  A.    Discovery Matters

  We will first consider Crabtree’s
argument that he is entitled to a new
trial because the district court did not
adequately manage discovery in that it
failed to: 1) rule on his discovery abuse
and ex parte contact motions in a timely
fashion, 2) grant him a continuance of
the trial date, and 3) impose sanctions
against Granite City Steel for its
alleged discovery abuses. We find no
error on these grounds.

  Here, the district court ruled on
Crabtree’s motions for sanctions for
discovery abuse and to allow him to
conduct ex parte interviews with former
and current Granite City Steel employees
two months after the motions were filed.
Such a short delay cannot be the basis of
a new trial when, as here, there is no
evidence that Crabtree was prejudiced by
the delay because the motion for
sanctions was baseless (see discussion
infra), and most of the information
Crabtree sought to obtain from the
interviews was either cumulative or
irrelevant, and therefore, inadmissible
at trial.

  As for the court’s refusal to continue
the trial date to conduct further
discovery, we have held that:

the common thread in the rare cases that
reverse the denial of a continuance is
the existence of changed circumstances to
which a party cannot reasonably be
expected to adjust without an extension
of time. The typical ’changed
circumstances’ include illness of a key
witness, illness of counsel on the eve of
trial, or newly discovered evidence. On
the other hand, where there are no
changed circumstances and a litigant
fails to take advantage of opportunities
to conduct discovery, [we have] upheld
the denial of additional time to conduct
discovery.

Daniel J. Hartwig Assocs., Inc. v.
Kanner, 913 F.2d 1213, 1222-23 (7th Cir.
1990) (citations omitted).

  Crabtree’s counsel served his first set
of discovery requests only six weeks
after he filed his appearance. Early in
the case, he informed the court of his
schedule and the problems in obtaining
certain pieces of information from
Granite City Steel. Throughout the
pendency of the litigation, he
persistently moved for a continuance of
the trial date due to the same
problems./3 We believe that considering
the flood of documents exchanged between
the parties and the multitude of
discovery dispute hearings held the month
before the trial began, the district
judge should have granted a continuance.
The problem for Crabtree, however, is
that none of his requests was based on
changed circumstances and the court
actually granted a two-week extension of
the trial date. So, although we have
problems with the court’s decision to
force the parties to trial under the
circumstances present in this case,/4
we are constrained by our standard of
review. Therefore, we conclude that the
district court did not abuse its
discretion in failing to grant more than
a two-week extension of the trial date.

  Likewise, the court did not abuse its
discretion in failing to impose
sanctions. Sanctions may be imposed when
a party persistently fails to comply with
a discovery order, see Ladien, M.D. v.
Astrachan, 128 F.3d 1051, 1056 (7th Cir.
1997), and "displays wilfulness, bad
faith or fault" in doing so. Philips Med.
Sys. Int’l, B.V. v. Bruetman, 982 F.2d
211, 214 (7th Cir. 1992) (citing Roland
v. Salem Contract Carriers, Inc., 811
F.2d 1175, 1179 (7th Cir. 1987)). Here,
there was no evidence that Granite City
Steel persistently, wilfully, or in bad
faith, failed to comply with the court’s
scheduling order,/5 and Crabtree
admitted as much in his motion for
sanctions ("Plaintiff is not, at this
time, claiming bad faith."), and again at
an April 20, 1999 hearing on outstanding
discovery issues ("Your Honor, there has
been fairly substantial compliance with
the requests that I’ve been making and I
think Mr. Konzen and Granite City Steel
are making really strong efforts in
getting me materials. The trouble is that
they’re coming fast and furious. What I’m
missing, though, is just statements of
what I have and don’t have.").
Accordingly, the district court did not
abuse its discretion in refusing to
impose sanctions on Granite City Steel.


  B.   Limitation on Length of Trial

  Crabtree also takes issue with the
district court’s decision to limit the
length of the trial (including voir dire,
opening statements, and closing
arguments) to four days. We find that the
district court committed no error.

  A district court that fixes a period of
time for the trial as a whole does not
per se commit an abuse of discretion so
long as the time limit is flexible enough
to accommodate adjustment if it appears
during the trial that the court’s initial
assessment was too restrictive. MCI
Communications Corp. v. Am. Tel. & Tel.
Co., 708 F.2d 1081, 1171 (7th Cir. 1983).

  At a status conference on the day before
the trial was to begin, the district
judge limited Crabtree’s time to present
his case to 1 days with a one-hour
rebuttal, and Granite City Steel’s to one
day. The judge felt that this was an
appropriate amount of time based on his
experience in trying employment
discrimination cases before a jury, his
beliefs that this was an uncomplicated
case and that much of the evidence
Crabtree wanted to present was cumulative
or inadmissible. Although we believe that
in an appropriate case a district court’s
decision to significantly cut the length
of the trial on the eve of trial could be
problematic, the court did not abuse its
discretion here because it was necessary
to constrain Crabtree’s case and prune
out cumulative (i.e., redundant testimony
regarding Crabtree’s management style)
and irrelevant (i.e., testimony regarding
the bad management style of younger
managers) evidence. See McKnight v. Gen.
Motors Corp., 908 F.2d 104, 115 (7th Cir.
1990) (noting that we commend district
court judges who manage trials with an
iron hand by scrutinizing witness and
exhibit lists, and pruning redundant or
marginal evidence). Additionally, once it
became apparent during the trial that
Crabtree needed more time, the judge
allowed Crabtree more rebuttal time than
originally estimated. Finally, there was
no prejudice to Crabtree because even
with the time constraints he was able to
present several witnesses in addition to
himself (six in his case-in-chief and
nine in rebuttal) to testify to his
management style and/or other employees’
violent confrontations in the workplace
for which no disciplinary action was
taken.


  C.   Destruction of Documents

  The next argument we consider is
Crabtree’s assertion that the district
court erred in excluding evidence that
Granite City Steel improperly destroyed
documents related to the RIF and
applications and/or resumes of persons
who applied for the positions Crabtree
sought. We find no error here.

  "The prevailing rule [in this circuit]
is that bad faith destruction of a
document relevant to proof of an issue at
trial gives rise to a strong inference
that production of the document would
have been unfavorable to the party
responsible for its destruction." Coates
v. Johnson & Johnson, 756 F.2d 524, 551
(7th Cir. 1985); see also Partington v.
Broyhill Furniture Indus., Inc., 999 F.2d
269, 272 (7th Cir. 1993) ("[I]f, being
sensitive to the possibility of a suit, a
company then destroys the very files that
would be expected to contain the evidence
most relevant to such a suit, the
inference arises that it has purged
incriminating evidence.").

  Although Granite City Steel destroyed
most of the RIF documents while
Crabtree’s claim was pending before the
Illinois Department of Human Rights
("IDHR"), there was no evidence that they
were destroyed in bad faith. Granite City
Steel destroyed the RIF documents only
after maintaining them for two years (one
year longer than required under company
policy) and only after giving notice to
the IDHR that it was doing so.
Additionally, most of the RIF documents
were not relevant to Crabtree’s case
because his lawsuit did not challenge the
RIF, and those that were relevant--
Crabtree’s own RIF evaluations--were
preserved and produced./6

  As for the applications, they were also
destroyed in accordance with company
policy. Moreover, the district court
found that the applications did not
contain the applicants’ ages. Although
Crabtree asserted that the ages were on
the "short form" applications maintained
by the Illinois Department of Employment
Security, the district court found that
no one from Granite City Steel saw that
information. It may have been error to
exclude evidence that Granite City Steel
destroyed resumes that contained high
school graduation dates, but due to the
strength of the evidence supporting
Granite City Steel’s reason for not
rehiring Crabtree, there was not a
significant chance that the exclusion of
the resumes affected the outcome of the
trial. See Old Republic Ins. Co. v.
Employers Reinsurance Corp., 144 F.3d
1077, 1082 (7th Cir. 1998).


  D.   Jury Instructions
  We also reject Crabtree’s objections on
various grounds to three instructions
tendered to the jury. We review jury
instructions to determine if, as a whole,
they were sufficient to inform the jury
of the applicable law. See Mayall, 7 F.3d
at 573. Because most of Crabtree’s
arguments are frivolous, we will only
discuss two of his objections.

  First, Crabtree argues that jury
instruction # 9 improperly placed the
burden of persuasion entirely on him, and
that once he presented direct evidence of
age discrimination, the burden should
have shifted to Granite City Steel. See
id. at 573-74 ("’[O]nce the plaintiff in
a civil rights case has shown that a
forbidden purpose was a substantial
factor in the decision to fire him, the
burden shifts to the employer to persuade
the court that the plaintiff would have
been fired anyway, even if that purpose
had not existed.’") (quoting Visser v.
Packer Eng’g Assocs., Inc., 924 F.2d 655,
658 (7th Cir. 1991)).

  Jury instruction # 9 provided that:

It is Jim Crabtree’s burden to prove by a
preponderance of the evidence that he was
not re-hired by National Steel
Corporation . . . because of his age. In
order for you to determine whether Jim
Crabtree was not re-hired because of his
age, you must decide whether National
Steel Corporation would not have re-hired
Jim Crabtree had he been younger and
everything else had remained the same.

This instruction was taken directly from
an instruction that we upheld in Achor v.
Riverside Golf Club, 117 F.3d 339 (7th
Cir. 1997), as properly setting forth the
burdens, and for the same reasons
expressed in that opinion, we believe
there was no error in giving it to the
jury.

  Crabtree also argues that jury
instruction # 6 was improper when viewed
in combination with instructions 9 and
10/7 because there was no definition of
"preponderance of the evidence." Crabtree
did not, however, raise this challenge
below, and plain error review does not
apply to jury instructions in civil
cases. See Fed. R. Civ. P. 51; Achor, 117
F.3d at 342; Deppe v. Tripp, 863 F.2d
1356, 1361 (7th Cir. 1988). Therefore,
this challenge is waived.

  Even if Crabtree had not waived this
challenge, if there was any error in
giving instruction # 6 along with
instructions 9 and 10, we find that it
was harmless. Instruction # 6 did not
specifically state that it was defining
"preponderance of the evidence," but it
provided that:

When I say that a party has the burden of
proof on any proposition, or use the
expression ’if you find,’ or ’if you
decide,’ I mean you must be persuaded,
considering all the evidence in the case,
that the proposition on which he has the
burden of proof is more probably true
than not true.

(emphasis added). We find this
explanation of the burden of proof
sufficient to inform the jury of the
applicable meaning of "preponderance of
the evidence." Moreover, considering the
overwhelming evidence of statistics
showing no age disparity after the RIF
and of Crabtree’s own violent demeanor
(most of which we learned at oral
argument was initially placed before the
jury by Crabtree’s counsel in his case-
in-chief), if there was any error at all,
it was harmless.


  E.   Exclusion of Testimony

  Crabtree’s final argument is that the
district court improperly excluded
evidence that a supervisor told two
employees who were both over the age of
40 that they "were too old to go with him
through the millennium." The supervisor
did not participate in the decision
whether to rehire Crabtree and made the
comment two years after the decision was
made. Stray remarks made by non-
decisionmakers are not evidence that the
decision had a discriminatory motive.
Hunt v. City of Markham, Illinois, 219
F.3d 649, 652 (7th Cir. 2000); Cullen v.
Olin Corp., 195 F.3d 317, 323 (7th Cir.
1999); Cianci v. Pettibone Corp., 152
F.3d 723, 727 (7th Cir. 1998).
Accordingly, the court did not abuse its
discretion in excluding the remark.

III.   CONCLUSION

  For the foregoing reasons, the judgment
of the district court is AFFIRMED.

FOOTNOTES

/1 The court refused to consider Granite City
Steel’s motion for summary judgment because it
was untimely filed.

/2 Rule 61 of the Federal Rules of Civil Procedure
provides:

No error in either the admission or the exclusion
of evidence . . . is ground for granting a new
trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such
action appears to the court inconsistent with
substantial justice.

/3 Crabtree’s counsel asserts that the judge was
required to consider his status as a sole practi-
tioner in determining whether to grant a continu-
ance. In United States v. Windsor, 981 F.2d 943,
948 (7th Cir. 1992), we identified factors that
should be considered in granting or denying a
continuance, and being a sole practitioner is not
among them.

/4 At the final pretrial conference two weeks before
trial, Judge Murphy stated:

"But I’m not going to continue the case. And if
I absolutely put everybody on both sides of this
case, and including your client, into the hospi-
tal for a transfusion because they’reexhausted
getting it done, that’s the way it’s going to
be."

/5 Once the district court became aware that the
discovery disputes were continuing as the trial
date quickly approached, it required Granite City
Steel’s in-house counsel to testify at a hearing
and to swear in an affidavit as to what documents
had been produced and that the production was
complete, accurate, and in compliance with the
Federal Rules of Civil Procedure. Granite City
Steel did so.

/6 Crabtree’s evaluations were relevant because
Granite City Steel scored each employee on vari-
ous factors including management style in order
to determine who would be discharged pursuant to
the RIF. Apparently, a manager stated that Crab-
tree was not rehired because he was part of the
RIF. Thus, the evaluations could have tended to
prove that Crabtree was or was not rehiredbecause
of his violent demeanor.

/7 Instruction # 10 provided that:
You may not return a verdict for Jim Crabtree
just because you might disagree with National
Steel Corporation’s decision or believe it to be
harsh or unreasonable, as long as National Steel
Corporation would have reached the same re-hiring
decision regardless of Jim Crabtree’s age.
