                                      ___________

                                      No. 96-1703
                                      ___________

Matti I. Schultz,                           *
                                            *
      Plaintiff/Appellant,                  *
                                            *   Appeal from the United States
               v.                           *   District Court for the Eastern
                                            *   District of Missouri.
McDonnell Douglas Corporation,              *
                                            *
      Defendant/Appellee.                   *

                                      ___________

                              Submitted: December 12, 1996

                               Filed: February 5, 1997
                                      ___________

Before WOLLMAN and MURPHY Circuit Judges, and TUNHEIM,1 District
      Judge.
                               ___________


MURPHY, Circuit Judge.


      Matti Schultz was discharged by his employer, the McDonnell Douglas
Corporation, which he then sued for age discrimination under 29 U.S.C. §
621 et seq., and the Missouri Human Rights Act,          Mo. Rev. Stat. § 213.010
          2
et seq.       After a six day trial a jury found in favor of McDonnell Douglas,
and   the     district   court3   ordered   judgment   entered   in   favor   of   the
corporation.        Schultz



      1
      The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota, sitting by designation.
      2
      Schultz also alleged interference with his pension benefits
under the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1001 et. seq., and national origin discrimination under
Title VII, 42 U.S.C. § 2000a et seq. and state law. These claims
were dismissed prior to trial, and they are not involved in this
appeal.
      3
      The Honorable Edward L. Filippine, United States District
Judge for the Eastern District of Missouri.
appeals from the denial of his motion for a new trial based on the
exclusion of certain statistical evidence.       We affirm.


     Schultz was a principal technical specialist when he was discharged
as part of a reduction in force.    In the two performance evaluations before
the reduction in force, Schultz had been given the lowest overall ratings
of any of the sixteen specialists in his department.           Schultz, who was
fifty-seven and the fourth oldest specialist in his department when
discharged, was the only specialist in that department to be terminated.
At trial he attempted to introduce statistical evidence demonstrating a
pattern of age   discrimination by McDonnell Douglas.        The statistics were
based on data taken from the company's Production Operations Division,
which consisted of 3,731 employees.


     The   district   court   excluded   the   statistical   evidence   from   the
divisional level because it was not based on comparable employees, citing
Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 252 (8th Cir. 1995), and
Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995).           The
statistics dealt with a much larger group of employees than the district
court found relevant; they were not comparable in its view because they did
not include performance evaluations.


     Schultz contends that he had offered additional evidence of age
animus at the departmental level to show the reasons offered for discharge
were pretextual.   He also claims that there was evidence demonstrating the
involvement of managers at the higher divisional level in his termination.4
This would have made the divisional level statistical evidence relevant,
and it should have been admitted.        He seeks a new trial so that he can
present the statistics.




     4
      This evidence was excluded at trial and Schultz has not
claimed this ruling was erroneous.

                                         2
     We review the denial of a motion for a new trial under an abuse of
discretion standard.      McKnight v. Johnson Controls, Inc., 36 F.3d 1396,
1400 (8th Cir. 1994).      The admissibility of evidence is also within the
trial court's discretion.    The question presented on the post-trial motion
was whether exclusion of the evidence      was "so prejudicial as to require
a new trial which would be likely to produce a different result."     O'Dell
v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir. 1990).


     The district court did not abuse its discretion in excluding the
statistical evidence.     While it is true that MacDissi v. Valmont Indus.
Inc., 856 F.2d 1054 (8th Cir. 1988), indicated that other evidence of
discrimination may add to the relevance of statistical evidence, it did not
contradict the rule that the statistics must evaluate comparable employees
to be meaningful indicators of pretext.      856 F.2d at 1058-59; Hutson, 63
F.3d at 778 (discussing MacDissi).        Even if the decision to discharge
Schultz had been made with the involvement of division level managers, he
has not shown that the 3,731 division employees reflected in the statistics
were comparable to him.    McDonnell Douglas claimed Schultz was selected for
discharge because of his performance ratings, and the statistical evidence
did not incorporate the performance ratings of other employees.          The
probative value of statistical evidence that does not reflect significant
differences among employers would be prejudicial and misleading.   See   Fed.
R. Evid. 403.


     For these reasons the district court did not err in denying the
motion for a new trial. Accordingly, its order is affirmed.


A true copy.


     Attest:


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




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