At page 1308 Applying McDonnell Douglas burdens to jury instructions27 citing casesThe McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict, but they are of little relevance to the jury
- Hall, No. 1:25-cv-01138 (D. Colo. June 24, 2026).(The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss[.])
- Revan, No. 1:25-cv-00528 (D. Colo. Feb. 11, 2026).(The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss[.])
- Wooley v. Indigo Ag, Inc., No. 1:21-cv-00240, 2022 WL 4365982 (D. Colo. Sept. 21, 2022).(The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss[.])
- Moudden v. Univ. of Colorado at Boulder, The, No. 1:18-cv-02514, 2019 WL 6975015 (D. Colo. Dec. 20, 2019).(The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss[.])
- Gerald v. Locksley, 849 F. Supp. 2d 1190 (D.N.M. 2011).published (McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict.)
- Gerald v. Locksley, 785 F. Supp. 2d 1074 (D.N.M. 2011).published (McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict)
- Bobby Brown v. Packaging Corp. of Am., 338 F.3d 586 (6th Cir. 2003).published (The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict, but they are of little relevance to the jury)
- Smita Sanghvi Tarun Sanghvi v. City of Claremont, & Suzan Smith Paul Heid Algrid Leiga Diann Ring Karen Rosenthal Glenn D. Southard, 328 F.3d 532 (9th Cir. 2003).published(The McDonnell Douglas inferences ... are of little relevance to the jury.)
- Teixeira v. Town of Coventry, No. 17-1049P (1st Cir. Feb. 7, 2018).publishedSys., Inc., 903 F.2d 1306, 1308-09 (10th Cir. 1990).
- Morman v. Campbell Cnty. Mem'l Hosp., 632 F. App'x 927 (10th Cir. 2015).unpublishedSys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990).
Show 16 more citing cases
- Walton v. New Mexico State Land Off., 113 F. Supp. 3d 1178 (D.N.M. 2015).published(McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict—)
- Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136 (D.N.M. 2013).published(McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict.)
- Wilkins v. Packerware Corp., 260 F. App'x 98 (10th Cir. 2008).unpublishedSystems, Inc., 903 F.2d 1306, 1308 (10th Cir.1990) (internal quotation omitted).
- Flitton v. Primary Residential Mortg., Inc., 238 F. App'x 410 (10th Cir. 2007).unpublished(�McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict)
- Lord v. Hy-Vee Food Stores, 2006 S.D. 70, 720 N.W.2d 443.published(The McDonnell Douglas inferences ... are of little relevance to the juiy.)
- Whittington v. The Nordam Grp. Inc, 429 F.3d 986 (10th Cir. 2005).publishedIn Messina v. Kroblin Transportation Systems, Inc., 903 F.2d 1306, 1308 (10th Cir.1990), we “disapproved jury instructions which delineate the intricacies of McDonnell Douglas because a jury is not well equipped to understand the shifting…
- Brown v. Packaging Corp, No. 01-5864 (6th Cir. July 29, 2003).published Holding that there was no error in instruction to the jury’ . . .”); Costa v. Desert Palace, Inc., 299 rejecting the McDonnell Douglas instruction tendered by the F.3d 838, 855 (9th Cir. 2002) (en banc) (“it is not normally defendant at th…
- Turner v. Am. Red Cross Tissue Servs., S. Plains Area, 6 F. App'x 741 (10th Cir. 2001).unpublishedSys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990).
- Heno v. Sprint/United Mgmt. Co., 208 F.3d 847 (10th Cir. 2000).published Inc., 903 F.2d 1306, 1308 (10th Cir.1990), Jury Instruction No. 14 correctly stated the law.
- 66 Fair empl.prac.cas. (Bna) 1516, 66 Empl. Prac. Dec. P 43,487 Louie R. Murray, III Ricky M. Weaver v. City of Sapulpa Ja'ella Vanatta Larry Stansbury Carol McMasters Charles Lacy Bill Erwin Chris Carlton Rick Bruner Howard Brown Roger Minor Ron Sole Tom Clark, Police Chief Barbara McCoy Jack McCoy Patrol Officer Kevin Abraham Steven Keaton Phil McCormick, 45 F.3d 1417 (10th Cir. 1995).publishedSystems, Inc., 903 F.2d 1306, 1308 (10th Cir.1990).
- Murray v. City of Sapulpa, 45 F.3d 1417 (10th Cir. 1995).publishedSystems, Inc., 903 F.2d 1306, 1308 (10th Cir.1990).
- Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994).published See, e.g., Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 635 , 121 L.Ed.2d 566 (1992); Messina v. Kroblin Transportation Systems, Inc., 903 F.2d 1306, 1308-09 (10th Cir.1990); Mullen…
- Fallis v. Kerr-McGee Corp., 944 F.2d 743 (10th Cir. 1991).publishedSys., Inc., 903 F.2d 1306, 1308 (10th Cir. 1990); see also Pitre v. Western Elec.
- 56 Fair empl.prac.cas. (Bna) 1462, 57 Empl. Prac. Dec. P 40,936 J. Fred Fallis, Plaintiff-Appellee/cross-Appellant v. Kerr-Mcgee Corp., Defendant-Appellant/cross-Appellee, 944 F.2d 743 (10th Cir. 1991).publishedSys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990); see also Pitre v. Western Elec.
- 55 Fair empl.prac.cas. 390, 55 Empl. Prac. Dec. P 40,577 Haywood Williams, Jr. v. Edwin Meese Norman A. Carlson Jerry O'Brien Superintendent, Fed. Prison Indus. Job Placement Supervisor Usp Leavenworth Chaplain Craig Chaplain Mabry Mr. Spencer, Librarian Mr. Vincent, Rec. Supv. Mr. Gerald Austin Mr. Gaunce Mr. Anderson Dr. Hill Mr. Hackler Mr. Morris Commissary Supervisor Mr. Simpson, Job Placement Officer Unknown Members of the Inst. Inmate Work & Performance Comm. & Mr. M. Hammeke, 926 F.2d 994 (10th Cir. 1991).published(it is appropriate for courts to use the law developed in the context of Title VII cases in ADEA disputes)
- Williams v. Meese, 926 F.2d 994 (10th Cir. 1991).published(it is appropriate for courts to use the law developed in the context of Title VII cases in ADEA disputes)
At page 1310 Reviewing trial court's discretion in limiting evidence scope15 citing casesreviewing decision to limit scope of evidence for abuse of discretion
- United States v. Magnan, 622 F. App'x 719 (10th Cir. 2015).unpublishedWe are nevertheless “reluctant to overturn evidentiary rulings of the trial court.” Messina v. Kroblin Transp, Sys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Showalter v. Weinstein, 233 F. App'x 803 (10th Cir. 2007).unpublished Sys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Banki v. Provident Indem. Life Ins., 95 F. App'x 268 (10th Cir. 2004).unpublishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Nalder v. West Park Hosp., 254 F.3d 1168 (10th Cir. 2001).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Fed. Deposit Ins. v. Schuchmann, 235 F.3d 1217 (10th Cir. 2000).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Fed. Deposit Ins. Corp. v. Bernard Schuchmann, 235 F.3d 1217 (1st Cir. 2000).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir. 1990).
- Jones v. TCI Cablevision, No. 99-4103 (10th Cir. Aug. 3, 2000).unpublished(reviewing decision to limit scope of evidence for abuse of discretion)
- McCue v. Kansas, Dep't of Human Resources, 165 F.3d 784 (10th Cir. 1999).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- Daniel v. Ben E. Keith Co., 97 F.3d 1329 (10th Cir. 1996).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990).
- 45 Fed. R. Evid. Serv. 994, prod.liab.rep. (Cch) P 14,757 Marcia C. Daniel & Douglas Daniel, Individually & as Husband & Wife v. Ben E. Keith Co., 97 F.3d 1329 (10th Cir. 1996).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990). 27 Plaintiffs read into evidence portions of Leon Ewell's deposition pursuant to Fed.R.Evid. 804.
Show 4 more citing cases
- Willie C. Lynch v. Marvin T. Runyon, Postmaster Gen. of the United States Postal Serv., & United States Post Off., 57 F.3d 1080 (10th Cir. 1995).published(limiting scope of evidence)
- Harris Mkt. Rsch., & Counterclaim v. Marshall Mktg. & Commc'ns, Inc., & Third-Party v. Larry R. Harris, Third-Party, 948 F.2d 1518 (3d Cir. 1991).publishedSys., Inc., 903 F.2d 1306, 1310 (10th Cir.1990), and “we may not reverse in the absence of an abuse of discretion,” Rainbow Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233 , 1242 (10th Cir.1990); accord Boren v. Sable, 887 F.2d 10…
- Sil-Flo, Inc., a Delaware Corp., & Cross-Appellee, John J. Ceparano, & Cross-Appellee v. Sfhc, Inc. & Paul Doughty, & Cross-Appellants, Harold Doughty, Almer E. Ellison, & Rod Fancher, & Cross-Appellants. Nord Sil-Flo, Inc. v. Noble Materials, Inc., Riley Jo McCarty Paul Doughty, & J.R. Fancher, 917 F.2d 1507 (10th Cir. 1990).published
- Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507 (10th Cir. 1990).published
At page 1309 Corporate employee statements not constituting publication8 citing casesstatements made by one corporate employee during the performance of his duties within the hearing only of other corporate employees does not constitute publication
- Reed, No. 4:24-cv-00419 (N.D. Okla. Mar. 25, 2026).(statements made by one corporate employee during the performance of his duties within the hearing only of other corporate employees does not constitute publication)
- Sharkey v. Lasmo (Aul Ltd.), 55 F. Supp. 2d 279 (S.D.N.Y. 1999).publishedSys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990), in which the court, while expressing "misgivings” about instructing the jury on the McDonnell Douglas analysis, upheld the verdict because the instruction still "directed the jury’s attentio…
- Jacqui Starr v. Pearle Vision, Inc., Doing Bus. as Pearle Vision Express, 54 F.3d 1548 (10th Cir. 1995).publishedSys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990); M.F.
- United States v. Jackie Howard Mullins, 4 F.3d 898 (10th Cir. 1993).publishedSys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990).
- Diana Hogsett & Daniel Rewers v. John Lumley, 5 F.3d 546 (10th Cir. 1993).publishedSys., 903 F.2d 1306, 1309 (10th Cir.1990). 6 Specifically, as to the free speech issues, Lumley argues that the district court erroneously instructed the jury that Hodgett and Rewers had a First Amendment right to engage in political activ…
- Tatum v. Philip Morris Inc., 809 F. Supp. 1452 (W.D. Okla. 1992).publishedSystems, Inc., 903 F.2d 1306, 1309 (10th Cir.1990); M.F.
- Hensley v. Armstrong World Indus., Inc., 798 F. Supp. 653 (W.D. Okla. 1992).publishedSys., 903 F.2d 1306, 1309 (10th Cir.1990); Wadley, 401 F.2d at 171 .
- Rice v. Comtek Mfg. of Oregon, Inc., 766 F. Supp. 1550 (D. Or. 1990).published Sys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990) (Okla. law); see also Jones v. Golden Spike Corp., 97 Nev. 24 , 623 P.2d 970, 971 (1981) (citing cases and calling this majority rule). *1552 This rule makes perfect sense here.
At page 1307 cited at this page1 citing case
- Simplicio G. Torrez v. Bei Graphics Corp., 134 F.3d 383 (10th Cir. 1998).published Sys., Inc., 903 F.2d 1306, 1307-09 (10th Cir.1990).
v.
Kroblin Transportation Systems, Inc.
Plaintiff Michael Messina appeals from a jury verdict in favor of defendant Kroblin Transportation Systems, Inc. (Kroblin) on his claim that he was unlawfully terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ch. 14, and from a directed verdict for defendant on Messina’s pendent state law slander claim. On appeal we consider three issues, whether the district court erred (1) in instructing the jury on Messina’s ADEA claim; (2) in directing a verdict for defendant on Messina’s slander claim; and (3) in refusing to admit evidence of the conduct of certain defense witnesses. [1] We affirm the district court on all issues.
I
On Messina’s ADEA claim, the district court instructed the jury in accordance with its view of the standards enunciated in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and this circuit’s opinion in Smith v. Consolidated Mut. Water Co., 787 F.2d 1441 (10th Cir.1986). The instructions at issue provided:
“In order to prove the essential elements of plaintiff’s claim ... the burden is upon plaintiff to establish by a prepon[*1308] derance of evidence in the case the following facts:
First: That the plaintiff was employed by the defendant, and was capable of continuing to perform in a satisfactory manner;
Second: That he was at least forty years of age but less than seventy years of age at the time of his discharge;
Third: That the plaintiffs age was the determinative factor in whether he was to be retained or discharged; and Fourth: that a younger person replaced him.
Once plaintiff has established through evidence the essential elements of his age discrimination claim ... the burden of proof shifts to the defendant to show some legitimate non-discriminatory reason for the plaintiffs termination. If defendant comes forth with such evidence, the burden shifts back to plaintiff to prove that the business reason proffered by defendant is merely a pretext for discriminating against plaintiff.”
I R. tab 83. Messina argues that this instruction incorrectly required him to prove the ultimate question of the trial— whether age was the determinative factor in his discharge — as part of his prima facie case.
This instruction may misstate the evidence a plaintiff must present in order to avoid a directed verdict under McDonnell Douglas, but the presumption and burdens inherent in the McDonnell Douglas formulation drop out of consideration when the case is submitted to the jury on the merits. As the Supreme Court noted in United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 1480-81, 75 L.Ed.2d 403 (1983), the important issue is discrimination vel non not the orderly presentation of evidence.
Other circuits have disapproved jury instructions which delineate the intricacies of McDonnell Douglas because a jury is not well equipped to understand the shifting burdens of such a formulation. The First Circuit recognized the potential for juror confusion and stated:
“[T]o read [.McDonnell Douglas’] technical aspects to a jury, as was done here, will add little to the juror’s understanding of the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate question of discrimination. Since the advantages of trial by jury lie in utilization of the jurors’ common sense, we would have serious reservations about using McDonnell Douglas if doing so meant engulfing a lay jury in the legal niceties discussed in this opinion.”
Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979); see also Hagelthorn v. Kennecott Corp., 710 F.2d 76, 85 (2d Cir.1983) (“[T]he defendant’s proposed instructions, couched in such lawyerly cant as ‘prima facie case’ and ‘shifting burden of proof,’ would only have confused the jury.”).
While it is appropriate for courts to use the law developed in the context of Title VII eases in ADEA disputes, McDonnell Douglas guidelines play differently to a jury than they do in a bench trial. The McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict, but they are of little relevance to the jury. The district courts, therefore, to avoid potential jury confusion, should prepare instructions that do not rely on technical legal distinctions likely to be understood only by attorneys and judges.
“McDonnell Douglas is to a large extent an analytical framework enunciated post hoc, in light of a given set of facts, to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case. In light of this and the fact that the defendants’ burden is one of production rather than of persuasion, only the factual determinations necessary to the underlying rationale of McDonnell Douglas need be made by the jury — the burden-shifting can and should be monitored by the judge. Moreover, the term ‘prima facie case’ need never be mentioned to the jurors; ... McDonnell Douglas should be used to[*1309] identify the important factual issues, and these can be set out in the charge, or in special questions, divorced from legal jargon.”
Loeb, 600 F.2d at 1016 (footnote omitted).
Despite our misgivings, we hold that the instruction given by the trial court does not warrant reversal. In Smith, we upheld an instruction not much different from that given here. 787 F.2d at 1442-43. The court’s instructions on the age discrimination issue directed the jury’s attention to the ultimate question — was age a determinative factor in Messina’s discharge. “Our standard of review is not whether an instruction was faultless in every respect, but whether the jury, considering the instructions as a whole, was misled. ‘Thus, only in those cases where the reviewing court has a substantial doubt whether the jury was fairly guided in its deliberations should the judgment be disturbed.’ ” United States v. Willis, 890 F.2d 1099 (10th Cir.1989) (quoting Irving v. Dubuque Packing Co., 689 F.2d 170 (10th Cir.1982)). We do not have such doubt in the case before us.
II
Messina asserts that the district court erred in directing a verdict against him on his slander claim. In defending against Messina’s ADEA claim, Kroblin alleged that it terminated Messina because, inter alia, he intentionally postdated a vehicle inspection report that he filed with the company, a violation of federal safety regulations for which Kroblin could have been sanctioned. Messina denied that his handling of the inspection report was improper, and his slander claim arises from the manner in which Kroblin dealt with the incident. Messina contends that Tom Tho-ma, maintenance supervisor for Kroblin, accused him, in front of several co-workers, of not doing the inspection and falsifying the report. He alleges that this accusation constitutes slander per se. Kroblin argues that Thoma did not accuse Messina of falsifying the report; rather, he requested an explanation of the discrepancy between the date written on the report and the date Messina claimed he inspected the vehicle in question. In addition, Kroblin asserts that (1) no defamation occurred because communication between corporate employees does not constitute publication of the defamatory information and (2) Messina failed to overcome Kroblin’s qualified privilege by showing actual malice or recklessness in the communication.
After hearing evidence on the issues, the trial court directed a verdict for Kroblin on the slander claim. The court determined as a matter of law that none of the employees who heard the conversation between Messi-na and Thoma thought less of Messina and, therefore, no slander could have occurred. Messina argues that the trial court misapplied Oklahoma law by confusing defamation per quod, which requires proof of damage, with defamation per se, in which damage is presumed.
We agree with Kroblin that under Oklahoma law statements made by one corporate employee during the performance of his duties within the hearing only of other corporate employees does not constitute publication. Because defamation requires that information be communicated to others besides the plaintiff, we hold that the trial court’s directed verdict in favor of the company was correct. See Magnolia Petroleum Co. v. Davidson, 194 Okl. 115, 148 P.2d 468, 471 (1944); and M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 171 (10th Cir.1968). See also Anson v. Erlanger Minerals and Metals, Inc., 702 P.2d 393, 398 n. 4 (Okla.App.1985) (assuming statements in staff meetings not publication under doctrine of Magnolia Petroleum ).
Ill
Finally, Messina argues that the district court erred in failing to allow him to introduce evidence and argue to the jury the full extent of Kroblin’s “failure to play by the rules." The case had been partially tried earlier, and a mistrial had been declared, apparently because one of Kroblin’s witnesses discussed his testimony with another witness in violation of a court order. Messina makes several complaints about[*1310] the retrial, but focuses principally on the court’s limitation on his cross-examination of Kroblin’s witnesses involved in the violation of the sequestration order in the earlier trial.
We are generally reluctant to overturn evidentiary rulings of the trial court. We review such rulings only to determine if the trial court abused its discretion in limiting the scope of the evidence presented. Weir v. Federal Ins. Co., 811 F.2d 1387, 1396 (10th Cir.1987). In this case the district court was attempting to balance the interests of plaintiff Messina in presenting his case with the undoubted prejudice that would arise if the jury were informed that prior defense misconduct had required a new trial. We cannot find fault with the balance the court struck. The court allowed Messina to cross-examine the witnesses who were involved in the previous violation regarding the fact that they had violated the sequestration order. While Messina might have wished to belabor the point, the district court did not err in refusing to let him do so.
Accordingly, the district court is AFFIRMED.
. Because we affirm the district court’s handling of Messina’s ADEA claim in all other respects, we do not reach his contention that the court’s instruction with regard to backpay was improper.