WILKINSON, Circuit Judge:
Fired from his job with Green Ford, Inc., of Greensboro, North Carolina, fifty-eight year-old Roy V. Nelson sued his former employer under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The company responded that unsatisfactory performance and an uncooperative attitude, rather than any age discrimination, accounted for the dismissal. A jury of the Middle District of North Carolina found for Green Ford, and Nelson appealed, arguing that the verdict was based on improper instructions in violation of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
We affirm. The instructions in this age discrimination case properly focused the attention of the jury on the ultimate motivational determination. It is not the purpose of those instructions to immerse the jury in the McDonnell Douglas scheme of proof with all its shifting burdens and its subtle variations. In ADEA actions, McDonnell Douglas and its progeny serve chiefly to assist the trial judge in supervision of the case and in allocation of responsibility between judge and jury. Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir.1982).
Nelson's complaint alleged that Green Ford had discriminated against him in three separate ways: in the denial of training opportunities, in the revision of the corporate bonus policy, and in the termination of his employment. At the trial, Nelson restricted his claim to the third of these issues, although he asked the court to tell the jury that it could consider the training and bonus evidence as indications that age was a determining factor in the discharge decision. The court accepted that suggestion and instructed the jury that "part of this [indirect] method of proof is that the plaintiff must show that the other employees were treated more favorably than he was. In other words, you must be satisfied by the greater weight of the evidence that the younger employees were given additional training, provided higher monthly bonuses or generally were given more favorable treatment than the plaintiff received."
Nelson asked the court to supplement this passage with a reference to the inference that the jury could draw from the testimony of Nelson's supervisor, who had said that he had hired in Nelson's place a man who was "somewhere in his twenties." The court refused that requested instruction, and Nelson objected to the charge pursuant to Fed.R.Civ.P. 51, arguing that "the court should include a reference to the plaintiff being replaced by a younger employee, because I think that is the classic application of the McDonnell Douglas scheme of proof."
Plaintiff's claim raises the recurring question of how a proof scheme designed primarily for bench trials under Title VII, 42 U.S.C. § 2000e-5, can be transposed to jury trials under the Age Discrimination in Employment Act. Plaintiff's reasoning, however, reflects a misapprehension of the relevance of the prima facie case to jury instructions discussing the indirect proof of a claim under the age discrimination statute. The McDonnell Douglas proof scheme — a deductive inference of discrimination, an articulated employer justification for the contested action, and an attempt to discredit that purported justification — is "intended to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case." Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979). As an aspect of trial supervision, allocation of the parties' responsibilities is beyond the function and the expertise of the jury: "the burden-shifting can and should be monitored by the judge ... the term `prima facie case' need never be mentioned to the jurors." Id.; see also Hagelthorn v. Kennecott Corp., 710 F.2d 76, 85 (2d Cir.1983) ("proposed instructions, couched in such lawyerly cant as `prima facie case' and `shifting burden of proof,' would only have confused the jury"); Smith v. University of North Carolina, 632 F.2d 316, 334 (4th Cir.1980) (quoting Loeb v. Textron, Inc. with approval).
Nelson's suggested instruction on the significance of his replacement's age demonstrates perfectly the mistake of conflating the roles of the judge and the jury. In his amended proposed instructions, Nelson asked the court to charge that
To adopt this shorthand in the instructions would, in the words of Loeb v. Textron, Inc., 600 F.2d at 1016, "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." The district court chose the better course in personally controlling the peripatetic burden of production and in devising instructions sensitive
The lack of need for the jurors to hear anything about McDonnell Douglas v. Green is underscored by the connection between the purely legal mechanism of the prima facie case and the associated factual inference of liability. If the defendant advances a legitimate explanation for its treatment of the plaintiff, as Green Ford did in this trial by introducing evidence of Nelson's unsatisfactory performance, "the presumption or inference arising from proof of a prima facie case dissolves in the ADEA case." Fink v. Western Electric Co., 708 F.2d 909, 915 (4th Cir.1983); accord, Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 55 n. 1 (1st Cir.1984). When the jury addressed the existence of the alleged discrimination, therefore, no legal vitality remained in the preliminary factual inference and no independent significance attached to the success or failure of Nelson's attempted prima facie showing. Cf. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant."). Nelson is accordingly incorrect in asserting that the jury must understand the prima facie structure in order to weigh the plaintiff's indirect proof of discrimination.
Though the age of plaintiff's replacement was not required as a matter of law in the instructions to the jury, the question remains whether mention of this matter was mandated on the strength of the evidence. We hold that the district judge acted within his discretion in declining to draw the attention of the jury to the age of Nelson's replacement.
The melting of the original presumption into plaintiff's ultimate burden of persuasion on discriminatory motivation "does not destroy the inherent probative force of evidence earlier introduced by the plaintiff to invoke [the prima facie case]." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 240 (4th Cir.1982). Indeed, this court has specifically noted that the information that Nelson wanted to underline for the jury, the "absolute and relative ages of the claimant and his replacement," may be relevant to the fact-finder in its assessment of the claimant's allegations of discrimination. Id. at 242 n. 13. Nelson's request for an instruction was on this theory a reasonable petition to submit to the trial court. As this court has observed, "a United States district judge is not a bump on a log.... `It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important.'" Evans v. Wright, 505 F.2d 287, 289-90 (4th Cir.1974) (emphasis deleted), quoting Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933).
That Nelson's petition was reasonable, however, does not establish that the district court was obliged to grant it, for the court must enjoy latitude in selecting the evidence to be mentioned to the jury. "The trial judge in a federal court may summarize and comment upon the evidence and inferences to be drawn therefrom, in his discretion. This does not mean that he must include every scrap of evidence as if the jury were dependent upon the court's summation alone as the basis for its deliberations." United States v. Tourine, 428 F.2d 865, 869 (2d Cir.1970), cert. denied sub nom. Burtman v. United States, 400 U.S. 1020, 91 S.Ct. 581, 27 L.Ed.2d 631 (1971).
The trial judge, moreover, was present throughout the proceedings and in a better position than are we to assess the relative emphasis and significance of the proof. The judge's assessment that the factor of replacement was not "crucial either way" is precisely the kind of judgment call that merits deference. We can see no abuse of
The court also twice instructed the jury to consider whether "younger employees were treated more favorably" than plaintiff was. This charge necessarily embraced any and every incidence of differential treatment, including the replacement of older with younger workers. We decline to find reversible error in this general rather than specific reference when the general formulation so clearly draws the attention of the jury toward that which plaintiff's specific proof was necessarily directed.
Nelson's argument resembles that of the appellant in Massarsky v. General Motors Corp., 706 F.2d 111 (3rd Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983), in which an unsuccessful ADEA plaintiff claimed error in the trial court's failure to refer in its instructions to the defendant's policy of exempting a group of younger employees from layoffs. The court of appeals found no abuse of discretion, holding that
Id. at 124. We reach the same conclusion in the context of this evidence, this request, and these instructions.
It is not the appellate function to pick myopic fault with trial instructions. The question is whether the charge focused the eye of the jury clearly and fairly on the finding it was to make. Here there can be no doubt that it did.
"In cases of this type, the best charge may simply be one that emphasizes that plaintiff must prove, by a preponderance of the evidence, that he was discharged because of his age...." Loeb v. Textron, 600 F.2d at 1018. The district court here emphasized to the point of indelibility that "the focus of your inquiry is on defendant's motivation" — "the plaintiff must prove that the defendant Green Ford terminated him because of his age."
In discussing the motivational determination, the district judge explained to the jury the competing theories of the parties; the purposes of the Age Discrimination in Employment Act (its prohibition of age discrimination and its permission of non-age related action); the burden and standard of proof ("age need not be the sole reason but it must have been a substantial or motivating reason" in the discharge); the impermissibility of effecting savings in salaries or benefits "by replacing [plaintiff] with another worker;" the different methods, direct and indirect, by which plaintiff might prove his case; the question of whether the employer's proffered reasons were pretext; and so forth.
After all of this, some of which touched on the very matter plaintiff claims has been omitted, the judge returned the jury to the central question of whether plaintiff was discharged because of age. The jury answered "No" and we decline to disturb the dispensation of such basic justice on appeal.