3 F.

3d 1419

62 Fair Empl.Prac.Cas. 1289,

62 Empl. Prac. Dec. P 42,536
Herbert FAULKNER; Charles Titus; Edward J. Gonzales;
Ralph Cravens; John Martinez; Alfred Acuna;
Anthony Medina; and James Hodge,
Plaintiffs-Appellants,
v.
SUPER VALU STORES, INC., Defendant-Appellee.
No. 91-1273.

United States Court of Appeals,

Tenth Circuit.
Sept. 1, 1993.

Patricia A. Coan of Patricia A. Coan, P.C., Denver, CO, for plaintiffsappellants.

Carl F. Eiberger (Paul F. Hodapp and Kay-Dawn Allen with him on the
briefs), of Eiberger, Stacy, Smith & Martin, Denver, CO, for defendantappellee.
Steven S. Zaleznick, Cathy Ventrell-Monsees, and Robert L. Liebross,
American Ass'n of Retired Persons, Washington, DC, on the brief for
amicus curiae American Ass'n of Retired Persons.
Before BRORBY, BARRETT, and EBEL, Circuit Judges.
BRORBY, Circuit Judge.

The plaintiffs/appellants submitted applications for vacant warehousemen

positions at Super Valu Stores, Inc. but were not considered for the vacancies.
Plaintiffs then brought an age discrimination action against Super Valu under
the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634
(1988). The jury returned a verdict in favor of Super Valu and the plaintiffs
appeal, alleging various errors in the district court's jury instructions and

evidentiary decisions.
FACTUAL BACKGROUND
2

Super Valu Stores, Inc., the defendant/appellee, is a wholesale grocer with a

warehouse facility in Denver, Colorado. In 1986, one of Super Valu's Denver
competitors, Associated Grocers, declared bankruptcy and Super Valu
purchased Associated Grocers' warehouse. Due to an expected increase in
business resulting from Associated Grocers' bankruptcy, Super Valu decided to
hire a large number of new employees including warehousemen and drivers.
Super Valu was inundated with applications for these positions.

The plaintiffs/appellants worked as warehouseman at Associated Grocers and

applied for the same position at Super Valu after Associated Grocers' demise.
All the plaintiffs were over forty years of age, had six to twenty-two years of
experience as warehousemen at Associated Grocers, and were members of the
International Brotherhood of Teamsters, Local 435, the same union
representing warehousemen at Super Valu. Super Valu hired approximately 200
warehousemen, but chose not to consider applications from Associated Grocers'
ex-warehousemen because Super Valu allegedly feared acts of vandalism,
disruption, and sabotage, and believed the disgruntled Associated Grocers' exemployees would have an adverse effect on employee morale.

The plaintiffs, alleging age discrimination, filed charges against Super Valu
with the Equal Employment Opportunity Commission and subsequently
received right to sue letters therefrom. The plaintiffs then brought an action in
district court under the ADEA based on theories of disparate treatment and
impact. After a two-week trial, the jury concluded Super Valu had not
discriminated against the plaintiffs on the basis of age.

On appeal, the plaintiffs claim the disparate treatment and disparate impact
jury instructions were erroneous and allege the jury instructions as a whole
were confusing, overly technical, and failed to state applicable law. Plaintiffs
further allege the district court improperly admitted evidence concerning Super
Valu's business justifications and erred in excluding certain rebuttal exhibits
proffered by the plaintiffs.1

DISCUSSION
6

Under the ADEA, "[i]t shall be unlawful for an employer ... to fail or refuse to
hire ... any individual ... because of such individual's age." 29 U.S.C.A. Sec.
623(a) (West 1985). This protection applies to individuals "who are at least 40

years of age." 29 U.S.C.A. Sec. 631(a) (West 1985 & Supp.1993). The ADEA
is considered a broad prohibition against arbitrary age discrimination in the
work place. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120, 105
S.Ct. 613, 621, 83 L.Ed.2d 523 (1985).
I. Jury Instructions
7

The plaintiffs allege multiple errors in the jury instructions. In reviewing such
allegations, this court examines the record as a whole to determine whether the
instructions state the applicable law and provide the jury with an appropriate
understanding of the issues and the legal standards to apply. Big Horn Coal Co.
v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988). "[N]o
particular form of words is essential if the instruction as a whole conveys the
correct statement of the applicable law." Perrell v. FinanceAmerica Corp., 726
F.2d 654, 656 (10th Cir.1984). An erroneous jury instruction requires reversal
"only if we have substantial doubt whether the instructions, taken together,
properly guided the jury in its deliberations." Mitchell v. Mobil Oil Corp., 896
F.2d 463, 468 (10th Cir.), cert. denied, 498 U.S. 898, 111 S.Ct. 252, 112
L.Ed.2d 210 (1990).

A. Disparate Treatment
8

Plaintiffs first allege errors in the jury instructions which relate to their
disparate treatment claim. Disparate treatment is a cognizable theory of
discrimination under the ADEA. Hazen Paper Co. v. Biggins, --- U.S. ----, ----,
113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993); see Merrick v. Northern
Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). A disparate treatment
claim exists when an employer treats an individual less favorably than others
because of his or her protected status. International Bhd. of Teamsters v. United
States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396
(1977); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991).
Because disparate treatment is a form of intentional discrimination, "liability
depends on whether the protected trait (under the ADEA, age) actually
motivated the employer's decision." Biggins, --- U.S. at ----, 113 S.Ct. at 1706.
See also Coe v. Yellow Freight System, Inc., 646 F.2d 444, 448 (10th
Cir.1981).

The basic allocation of burdens for a disparate treatment claim is set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817,
1824-25, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207
(1981).2 Generally, a plaintiff must first establish a prima facie case of

discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 25253, 101 S.Ct. at 1093-94. Once the plaintiff establishes a prima facie case, a
presumption of unlawful discrimination is created and the burden shifts to the
employer "to rebut the presumption of discrimination by producing evidence
that the plaintiff was rejected, or someone else was preferred, for a legitimate
nondiscriminatory reason." Id. at 254, 101 S.Ct. at 1094. The employer "need
not persuade the court that it was actually motivated by the proffered reasons,"
but satisfies its burden merely by raising "a genuine issue of fact as to whether
it discriminated against the plaintiff." Id. at 248, 254, 101 S.Ct. at 1089, 1094.
If the burden of production is carried by the defendant, the plaintiff is given the
opportunity to prove the reasons provided by the employer are a pretext for
discrimination. Id. at 253, 101 S.Ct. at 1093. The plaintiff retains the ultimate
burden of proving he or she was the victim of intentional discrimination. Id.
10

Plaintiffs claim the disparate treatment jury instructions misstated the law by
shifting the jury's focus from the employer's motivation to its business
judgment.

11

A proper jury instruction in a disparate treatment action under the ADEA

should reflect the following:

12

The essence of the correct formulation of the standard of proof is that it

requires the jury to focus on the effect of the factor of age. The jury must
understand that it is not enough that age discrimination figure in the decision to
demote or discharge; age must "make a difference" ... in the sense that, "but
for" the factor of age discrimination, the employee would not have been
adversely affected.

13

Perrell, 726 F.2d at 656. The jury instruction should not, however, require
plaintiffs to prove the employer's justifications were false if the plaintiffs can
prove age was a determinative factor. E.E.O.C. v. Prudential Federal Sav. &
Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106
S.Ct. 312, 88 L.Ed.2d 289 (1985).

14

We discern no error in the jury instructions. Although plaintiffs focus their

appeal on jury instructions numbers 14 and 15, the instructions must be
examined in their entirety. Instruction number 13 clearly sets forth the proper
allocation of proof under Burdine and McDonnell, and informs the jury that age
must be the determinative factor in the failure to hire.3 Instructions 14 and 15
focus more specifically on Super Valu's rationale for not hiring the plaintiffs
and whether the rationale was pretextual.4 Such instructions are helpful to the

jury and do not alter the fact that instruction 13 directed the jury to consider
whether age was a determinative factor in Super Valu's decision not to hire the
plaintiffs.
15

The plaintiffs next claim jury instruction number 14 incorrectly stated the law
by allowing Super Valu a good faith defense. Instruction number 14 states, in
relevant part, that "[i]t is not necessary that defendant, in offering legitimate,
non-discriminatory reasons for not hiring plaintiffs, was right or correct in its
reasons, but only that it believed them in good faith." (Emphasis added.)
Plaintiffs assert good faith is only relevant in determining willfulness under the
ADEA. We disagree.

16

The ADEA allows a plaintiff to recover liquidated damages if an employer

"willfully" violates the act, 29 U.S.C. Sec. 626(b), and good faith is readily
acknowledged as a defense against charges of willfulness. Thurston, 469 U.S. at
128 n. 22, 105 S.Ct. at 625 n. 22; E.E.O.C. v. Wyoming Retirement System,
771 F.2d 1425, 1431 (10th Cir.1985); Mistretta v. Sandia Corp., 639 F.2d 588,
595 (10th Cir.1980). Although good faith is generally applicable to willfulness
claims, it is not error to include it in an instruction addressing intentional
discrimination under the disparate treatment theory. Willful and intentional are
similar terms which denote an act done knowingly, purposely and intentionally.
See Black's Law Dictionary 1434 (5th ed. 1979) (defining "willful" as
"intentional"). Thus, we find no error in using the term "good faith" to help
define the concept of intentional discrimination to the jury in an ADEA action.
See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1548-51 (10th
Cir.1988) (wherein this circuit implicitly recognized the similarity between a
willfulness claim and a disparate treatment claim under the ADEA).

17

Our conclusion is supported by an Eighth Circuit decision which upheld a jury

instruction that stated the ADEA "is not intended as a vehicle for judicial
review of employment decisions which are made in good faith and are not
actuated by age bias." Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779
F.2d 18, 20 n. 1 (8th Cir.1985). While the court did not discuss the issue of
"good faith," it found the instruction to "represent[ ] a proper, complete charge
to the jury." Id. at 21.

18

Plaintiffs next allege jury instructions numbers 14 and 15 in essence told the
jury "it had to agree with the employer's stated reasons whether legitimate and
reasonable or not." Although the plaintiffs do not point to any specific language
in the instructions to support their claim, they are apparently referring to the
following sentence in instruction 15: "[y]ou are not to substitute your judgment
for that of defendant in its employment decisions."

19

The ADEA is not a vehicle for reviewing the propriety of business decisions.
Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1404 (10th Cir.1988). As
we stated in Lucas, "[t]his court will not second guess business decisions made
by employers, in the absence of some evidence of impermissible motives." Id.
at 1403-04. It is also clear, however, that under the shifting allocations of proof
applied in ADEA cases a jury must make the factual determination of whether
the reasons stated by the employer are pretextual.

20

The jury instructions, as a whole, state the correct law. Instruction number 13
expressly informs the jury that if a plaintiff can "show by a preponderance of
the evidence that the reasons given by the defendant are a pretext, which is a
phony or unbelievable reason for the failure to hire the plaintiff, you may infer
that the real reason for the failure to hire was the plaintiff's age." Reading
instructions 13 and 15 together, the jury is instructed to determine whether the
defendant's reasons for not hiring the plaintiffs were pretextual, but not to
substitute its judgment for that of the employer. Thus, when read together, the
instructions properly guided the jury in its deliberations.

21

Plaintiffs further claim that Super Valu's summary rejection of plaintiffs'

applications without considering the plaintiffs' merits makes evidence of the
plaintiffs' qualifications at trial irrelevant. This claim apparently contests the
appropriateness of the jury instructions which set forth Super Valu's defense
that some plaintiffs were not qualified.

22

To establish a prima facie case of disparate treatment a "plaintiff must prove by

a preponderance of the evidence that she applied for an available position for
which she was qualified, but was rejected under circumstances which give rise
to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct.
at 1094; E.E.O.C. v. University of Oklahoma, 774 F.2d 999, 1001 (10th
Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183
(1986).5 An important prerequisite to establishing a prima facie case is that
each plaintiff was qualified for the job. In East Texas Motor Freight System
Inc. v. Rodriguez, 431 U.S. 395, 404 n. 9, 97 S.Ct. 1891, 1897 n. 9, 52 L.Ed.2d
453 (1977), the Supreme Court said "assuming, arguendo, that the company's
failure even to consider the applications was discriminatory, the company was
entitled to prove at trial that the respondents ... were not qualified and would
not have been hired in any event." See also Summers v. State Farm Mut. Auto.
Ins. Co., 864 F.2d 700, 708 (10th Cir.1988) (after-acquired evidence which
justified employer's firing of plaintiff "preclud[ed] the grant of any present
relief or remedy to [plaintiff]" in his age and religious discrimination suit
against employer); Murnane v. American Airlines, Inc., 667 F.2d 98, 101-02
(D.C.Cir.1981) (the fact that plaintiff would not have been hired in any event

was valid defense in age discrimination case), cert. denied, 456 U.S. 915, 102
S.Ct. 1770, 72 L.Ed.2d 174 (1982). Therefore, it was appropriate to instruct the
jury regarding Super Valu's defense that some plaintiffs were not qualified to
perform warehouse work and would not have been hired in any event.
23

Finally, plaintiffs contend the instructions "failed to instruct the jury that
defendant had the burden of proof by at least a preponderance of the evidence
to show that plaintiffs were allegedly not qualified." Plaintiffs are correct in
asserting that preponderance of the evidence is the appropriate burden of proof.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 254, 261, 109 S.Ct. 1775,
1792, 1796, 104 L.Ed.2d 268 (1989); Mt. Healthy City Schl. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The
jury, however, was properly instructed as to the applicable burden of proof in
instruction 26 which stated, in part, that "[t]he burden of proof is on the
defendant to prove by a preponderance of the evidence that a plaintiff would
not have been hired because he was not qualified, had his application been
considered." (Emphasis added.)

B. Disparate Impact
24

Plaintiffs next allege various errors in the disparate impact jury instructions.
Disparate impact is viewed as an alternate theory of relief under Title VII of the
Civil Rights Act of 1964. Hawkins v. Bounds, 752 F.2d 500, 503 (10th
Cir.1985). Some circuits also recognize the theory's applicability to ADEA
actions. See, e.g., Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d
Cir.1992); Shutt v. Sandoz Crop Protection Corp., 934 F.2d 186, 188 (9th
Cir.1991); Wooden v. Board of Educ. of Jefferson County, 931 F.2d 376, 379
(6th Cir.1991); MacPherson v. University of Montevallo, 922 F.2d 766, 770-71
(11th Cir.1991); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690
(8th Cir.1983). The Supreme Court, however, has "never decided whether a
disparate impact theory of liability is available under the ADEA." Biggins, --U.S. at ----, 113 S.Ct. at 1706.6

25

The Tenth Circuit has never directly addressed whether a disparate impact
claim is cognizable under the ADEA.7 Although this is clearly a threshold
question, neither party raised the issue before this court or the district court. For
purposes of this case, we believe the prudent course is to merely assume the
applicability of the disparate impact analysis without deciding whether it is a
viable theory of recovery under the ADEA. See, Arnold v. United States Postal
Service, 863 F.2d 994, 998 (D.C.Cir.1988) (choosing not to decide whether a
disparate impact claim is applicable to ADEA cases), cert. denied, 493 U.S.
846, 110 S.Ct. 140, 107 L.Ed.2d 99 (1989); Fisher v. Transco Services-

Milwaukee, Inc., 979 F.2d 1239, 1244 n. 3 (7th Cir.1992) (clarifying that the
Seventh Circuit only assumes the applicability of a disparate impact claim
under the ADEA). Because we find plaintiffs' contentions regarding their
disparate impact claim to be without merit, we reserve the legal determination
of whether disparate impact is applicable to the ADEA until such time as the
issue is properly presented and argued before this court. In so holding, we
apply the relevant Title VII law concerning disparate impact.
26

A disparate impact theory of recovery involves "employment practices that are

facially neutral in their treatment of different groups but that in fact fall more
harshly on one group than another and cannot be justified by business
necessity." Teamsters, 431 U.S. at 336 n. 15, 97 S.Ct. at 1855 n. 15. Unlike
disparate treatment, the disparate impact theory does not require proof of
discriminatory motive or intent. Id.; Ortega v. Safeway Stores, Inc., 943 F.2d
1230, 1242 (10th Cir.1991). The premise behind this approach "is that some
employment practices, adopted without a deliberately discriminatory motive,
may in operation be functionally equivalent to intentional discrimination."
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785,
101 L.Ed.2d 827 (1988).

27

"To establish a prima facie case of disparate impact discrimination, plaintiffs

must show that a specific identifiable employment practice or policy caused a
significant disparate impact on a protected group." Ortega, 943 F.2d at 1242
(citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115,
2124, 104 L.Ed.2d 733 (1989)). Statistics may be used by the plaintiffs to
establish a prima facie case of disparate impact. Wards Cove, 490 U.S. at 650,
109 S.Ct. at 2121; Ortega, 943 F.2d at 1243. Once plaintiffs establish a prima
facie case, the burden shifts to the employer to produce evidence demonstrating
a "business justification" for its employment practices. Wards Cove, 490 U.S.
at 658, 109 S.Ct. at 2125; Ortega, 943 F.2d at 1243. "The burden of persuasion,
however, remains with the disparate-impact plaintiff." Wards Cove, 490 U.S. at
659, 109 S.Ct. at 2126. If the employer presents such evidence, the plaintiffs
may still prevail if they can "persuade the factfinder that 'other tests or selection
devices, without a similarly undesirable racial effect, would also serve the
employer's legitimate [hiring] interest[s].' " Id. at 660, 109 S.Ct. at 2126
(quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362,
2375, 45 L.Ed.2d 280 (1975)). 8

1). Business Justification

28

Plaintiffs first object to the disparate impact instructions by arguing the

defendant's burden in presenting its business justification was improperly

defined. The law on this matter is clearly established:

29 producing evidence of business justification, the "dispositive issue is whether a
[I]n
challenged practice serves, in a significant way, the legitimate employment goals of
the employer." The challenged practice or policy need not be " 'essential' or
'indispensable' to the employer's business for it to pass muster...." Rather, the
"touchstone of this inquiry is a reasoned review of the employer's justification for
his use of the challenged practice."
30

Ortega, 943 F.2d at 1244 (citations omitted). Since the jury instructions parallel
the language in Ortega, we find no error.9

31

Plaintiffs next argue that a business justification offered by an employer must

be "related to each individual's job performance," not merely related to a group
of individuals. For this reason, plaintiffs assert that Super Valu's business
justification involving the general attitude of Associated Grocers' ex-employees
lacked the necessary link between the individual plaintiffs and their expected
job performance.

32

A business justification proffered by an employer " 'must have a manifest

relationship to the employment in question.' " Watson, 487 U.S. at 997, 108
S.Ct. at 2790 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct.
849, 854, 28 L.Ed.2d 158 (1971)). The touchstone of the disparate impact
inquiry is business necessity. Griggs, 401 U.S. at 431, 91 S.Ct. at 853; Lasso v.
Woodmen of World Life Ins. Co., 741 F.2d 1241, 1245 (10th Cir.1984), cert.
denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985). We do not
believe, however, that a proffered business justification must be tailored to an
individual applicant, as long as the employment practice is related to job
performance. Employment decisions are often based upon broad objective
criteria rather than subjectively based upon each individual's characteristics. In
a disparate impact claim, the plaintiffs are necessarily challenging the effect of
the employer's facially neutral practices on a protected group of people.
Consequently, the business justification for the practice may likewise be group
wide in scope.

33

We do not believe, as asserted by plaintiffs, that Super Valu's group-wide

business justification contradicts the notion that discrimination laws were
enacted for "the protection of the individual employee." Connecticut v. Teal,
457 U.S. 440, 453, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982). Super Valu
was given the opportunity to explain why the plaintiffs were not hired and its
employment practice was required to "serve[ ], in a significant way, [its]
legitimate employment goals." Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2125.

Each plaintiff could, of course, argue that the employer's broad concerns were
irrational, insubstantial, or secretly motivated by discrimination, but "it is the
province of the fact finder to determine what inferences should fairly be drawn
from the facts." E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1320-21 (10th
Cir.1992). Moreover, the plaintiffs could have also prevailed by persuading the
jury that alternative business practices were available which would be equally
effective in achieving Super Valu's legitimate business concerns but without the
undesirable discriminatory impact. Wards Cove, 490 U.S. at 660-61, 109 S.Ct.
at 2126-27.
2). Statistical Analysis
34

Plaintiffs next contend the jury was improperly instructed regarding the
appropriate composition of the applicant pool for statistical analysis. The
conflict arises because the plaintiffs' expert examined the applicants for the
warehousemen positions and found age to be a statistically significant factor in
hiring. Super Valu's expert, in contrast, reviewed the applications for
warehousemen and driver positions and found no statistically significant
relationship between age and hiring. The validity of the statistics employed by
the two experts is not in question, instead, the focus is on whether the correct
population for statistical analysis includes only warehousemen, or both
warehousemen and drivers.

35

The proper statistical comparison in disparate impact cases is between the age
composition of the at-issue jobs and the age composition of the qualified
persons in the labor market. Wards Cove, 490 U.S. at 650-51, 109 S.Ct. at
2121-22. Plaintiffs apparently believe the at-issue jobs in this dispute should,
by law, be limited to the warehousemen position. The district court, however,
instructed the jury to make the at-issue job determination. Instruction number
18 stated in relevant part:

36you find that the application and hiring procedures, qualifications, and duties for
If
warehousemen and drivers during the relevant hiring period were substantially
similar, then the "at-issue" jobs include both warehousemen and drivers.
37you find that the application and hiring procedures, qualifications, and duties for
If
the two jobs were not substantially similar, then the "at-issue" jobs are those of
warehousemen only.
38

To resolve the issue raised by the plaintiffs, we must first decide whether the
at-issue jobs determination is a question of fact or law.

39

The at-issue job determination requires a detailed examination of the

circumstances which distinguish one job from the next. Such a case-specific
inquiry necessarily involves weighing and interpreting the evidence presented.
Since we find the at-issue job determination to be a question of fact, it is best
suited for the trier of fact. See 29 U.S.C.A. Sec. 626(c)(2) ("a person shall be
entitled to a trial by jury of any issue of fact"). 10 Therefore, it was appropriate
for the jury in this case to make the at-issue job determination.

40

We next examine the appropriate law with which to instruct the jury. The
plaintiffs, relying upon Wards Cove, assert the jury instructions incorrectly
allowed the jury to compare warehousemen and drivers on the basis of
application and hiring procedures.

41

As we noted in Ortega, "it is difficult to determine exactly how Wards Cove

applies to different factual patterns." Ortega, 943 F.2d at 1245. Although the
parameters defining the at-issue job determination were not articulated in
Wards Cove, the Supreme Court held the proper comparison should be
between the racial composition of the at-issue jobs and the pool of qualified job
applicants. Wards Cove, 490 U.S. at 650-51, 109 S.Ct. at 2121-22. Even though
Wards Cove does not provide much guidance in making the at-issue jobs
determination, it is clear that the level of skill required for a position is
important in determining the qualified applicant pool.11 Contrary to plaintiffs'
assertion, Wards Cove does not address the applicability of application and
hiring procedures in making the at-issue jobs determination.

42

Similarly, Ortega discusses at-issue jobs but provides little guidance in defining
its application. The Ortega court did not expressly decide the at-issue job
question, but it did state that if a broad at-issue job pool was used in the
disparate impact analysis, it was imperative that the qualified applicants for
these positions go through an identical application process. Ortega, 943 F.2d at
1245.

43

In defining the scope of at-issue jobs, we note two competing concerns. First, if
diverse positions within an employer's work force are incorporated into the
statistical analysis, then a valid, disparate impact claim could be diluted to
insignificance by the hiring of protected groups in unrelated job positions. Such
a result is clearly impermissible. In Teal, 457 U.S. at 455, 102 S.Ct. at 2535,
the Supreme Court said "Title VII does not permit the victim of a facially
discriminatory policy to be told that he has not been wronged because other
persons of his or her race or sex were hired." We find that answer no more
satisfactory when it is given to victims of a policy that is facially neutral, but

effectively discriminatory. Second, plaintiffs should not be allowed to

subdivide a work force into numerous subcategories in order to reduce the
population size and find a statistically significant disparate impact.12
44

In order to best minimize these competing concerns, at-issue jobs should be

substantially similar with respect to qualifications, duties and required skills.
Similarity in application and hiring procedures may also be relevant, especially
when the challenged business practice is a component of the employer's hiring
policy. Resolution of the at-issue job question, however, depends upon the facts
and circumstances of each case and the nature of the plaintiffs' claim; therefore,
other factors may also be relevant in making this determination. 13 In the present
case, the jury was instructed to examine the similarity in the "application and
hiring procedures, qualifications, and duties for warehousemen and drivers."
Because the instruction defined at-issue jobs utilizing criteria which
encompassed the concerns set forth above, we do not find the jury instruction
erroneous.

45

Plaintiffs also raise a number of factual issues regarding the pooling of

warehousemen and drivers which we construe as a claim of insufficient
evidence. Sufficient evidence exists if a reasonable mind might find the
relevant evidence adequate to support the conclusion. Garcia v. Director, Office
of Workers' Comp. Programs, 869 F.2d 1413, 1415 (10th Cir.1989). The
evidence, however, must be " 'more than a mere scintilla.' " Id. (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83
L.Ed. 126 (1938)).

46

We find the following facts sufficient to support the jury's verdict. There was
testimony that drivers and warehousemen worked together as an integrated unit.
Warehouse and transportation employees were a single bargaining unit under
labor contracts for distribution personnel. There was also apparently some
overlap in job skills, transfers between the two positions took place, and there
were similarities in the hiring procedures. Although we recognize that drivers
required somewhat different qualifications than warehousemen and this
resulted in some differences in the application procedures, we believe Super
Valu presented sufficient evidence to support the jury's verdict.

47

Plaintiffs next claim that under Teal, the instructions erred by not informing the
jury that an employer's use of "bottom line" statistics does not provide a defense
to a disparate impact case. Plaintiffs' reliance upon Teal is out of context and
inapplicable.

48

In Teal, 457 U.S. at 442-44, 102 S.Ct. at 2528-29, an examination required by

48

In Teal, 457 U.S. at 442-44, 102 S.Ct. at 2528-29, an examination required by

the employer to obtain supervisor status had a disparate impact on AfroAmerican applicants because a greater percent of white applicants passed the
exam. The employer raised a "bottom line" defense arguing that overall, a
greater percent of Afro-American test participants were ultimately promoted
than were white participants. In finding the employer's defense inadequate, the
Supreme Court said that "disparate impact should [not] be measured only at the
bottom line ... [because] Title VII guarantees ... the opportunity to compete
equally ... on the basis of job-related criteria." Id. at 451, 102 S.Ct. at 2533. In
other words, even if Super Valu could show that the percentage of selected
applicants who were over forty was not significantly less than the percentage of
qualified applicants who were over forty, plaintiffs would still have a case
under the ADEA, if they could prove that some particular hiring practice had a
disparate impact on persons over forty, notwithstanding the bottom-line age
balance in Super Valu's work force. Wards Cove, 490 U.S. at 653 n. 8, 109
S.Ct. at 2123 n. 8.

49

Plaintiffs failed to prove Super Valu's hiring policy resulted in a disparate

impact on persons over forty. Instead, plaintiffs attempted to demonstrate a
disparate impact claim by presenting statistical evidence based upon one
segment of the work force and Super Valu countered with statistical evidence
based on a broader segment of the work force. Super Valu's statistical data was
not an unacceptable bottom line defense as in Teal, but instead refuted the
statistics which the plaintiffs relied upon in trying to establish their prima facie
case.

50

Plaintiffs next allege the instructions "failed to inform the jury that statistics
showing a substantial disparity between the number of people hired under forty
and the number of people over forty proved disparate impact discrimination."
Plaintiffs' assertion represents an incorrect statement of the law. The proper
comparison in a disparate impact case is between the age composition of the atissue jobs and the age composition of the qualified persons in the relevant labor
market. Wards Cove, 490 U.S. at 650, 109 S.Ct. at 2121. The jury instructions
set forth the proper law in this respect.14

51

Plaintiffs' final contention involving statistical analysis under the disparate

impact theory is that the jury instructions "failed to give the jury guidance as to
the correct legal standard for evaluating the statistics presented." Courts
generally judge the significance of statistical evidence on a case-by-case basis
and such an "approach properly reflects our recognition that statistics 'come in
infinite variety and ... their usefulness depends on all of the surrounding facts
and circumstances.' " Watson, 487 U.S. at 996 n. 3, 108 S.Ct. at 2790 n. 3
(quoting Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57); Ortega, 943 F.2d at

1243 n. 27. For this reason, courts are hesitant to adopt a rigid definition of the
statistical significance necessary to allege a prima facie case of disparate
impact. See Watson, 487 U.S. at 996 n. 3, 108 S.Ct. at 2790 n. 3.
52

The trial court did not err by failing to instruct the jury on how to evaluate the
statistical evidence presented. First, we note there is no suitable jury instruction
which has wide ranging applicability. Second, there were no circumstances
present in this case which would necessitate more specific guidance because
the appropriate standard for statistical significance was not contested by either
party. Instead, the pivotal question facing the jury was the at-issue job
determination.

C. Jury Instructions as a Whole

53

Plaintiffs final attack on the jury instructions is that the instructions as a whole
were misleading, overly technical, and confusing. Plaintiffs base this claim in
substantial part upon the fact the instructions used technical terms of art such as
"disparate impact," "disparate treatment," "business necessity," and "substantial
impact."

54

This court has previously advised trial courts to avoid confusing the jury with
overly technical terms which are only meaningful to those with a legal
education. Mitchell v. Mobil Oil Corp., 896 F.2d 463, 468 n. 1 (10th Cir.), cert.
denied, 498 U.S. 898, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990). The trial court
did not commit such an error in this case. The phrases "disparate impact,"
"disparate treatment," and "business necessity" were not used solely as terms of
art, but were carefully defined in layman's terms. We reviewed the instructions
as a whole and do not find them misleading or confusing.

II. Evidentiary Rulings

55

The evidentiary rulings of a trial court are reviewed for an abuse of discretion.
Durtsche v. American Colloid Co., 958 F.2d 1007, 1011 (10th Cir.1992).
Under this deferential standard of review, a trial court will be reversed only if
we have a firm and definite belief that the trial court made a clear error in
judgment. Gilbert v. Cosco Inc., 989 F.2d 399, 402 (10th Cir.1993).

A. Super Valu's Business Justifications.

56
57

Plaintiffs allege they were not hired in part because of their union affiliation
and Super Valu "should not be allowed to escape liability through the
articulation of an illegal action under one federal statute [National Labor

Relations Act] in defense of claims brought under another federal statute

[ADEA]."
58

In general, the record does not support the plaintiffs' claim. Super Valu
contends it did not hire Associated Grocers' ex-employees because of poor
morale, incidents of vandalism and sabotage, and animus towards Super Valu.
These are legitimate business justifications. Although some of the evidence
admitted to demonstrate the animosity Associated Grocers' employees
displayed towards Super Valu took place during lawful union activity, the
relevancy of the evidence was not based upon the union activity per se. Instead,
Super Valu's concerns were derived from the conduct of Associated Grocers'
ex-employees which, at times, took place in the context of union activity. For
example, testimony regarding union picket lines focused on statements shouted
by participants at Super Valu and picket signs blaming Super Valu for lost
jobs.15 The trial court instructed the jury that picket line activity was acceptable
and further stated that any evidence pertaining merely to legitimate, legal union
activities was irrelevant. We hold it was proper for the district court to admit
evidence reflecting these legitimate business concerns.

59

Even if we assume, arguendo, that Super Valu chose not to hire some
individuals because they were union members, such a decision is not actionable
under the ADEA.16 The ADEA protects individuals from age discrimination, it
does not protect individuals from other forms of alleged employer misconduct.
In Flasher, 986 F.2d at 1316, this circuit reached a similar conclusion regarding
Title VII by holding that an employer's "burden is merely to articulate through
some proof a facially nondiscriminatory reason for the termination." The term
"nondiscriminatory," however, "refer[s] only to the classes of people protected
by Title VII ... [and] [d]iscrimination based upon other characteristics or factors
is not prohibited by Title VII." Id. at 1316 n. 4. Thus, the defendant is only
required "to articulate a reason ... that is not, on its face, prohibited by Title
VII." Id. We believe the ADEA, like "Title VII[,] does not compel every
employer to have a good reason for its deeds; it is not a civil service statute." Id.
at 1321 (quoting Benzies v. Illinois Dep't of Mental Health & Developmental
Disabilities, 810 F.2d 146, 148 (7th Cir.), cert. denied, 483 U.S. 1006, 107
S.Ct. 3231, 97 L.Ed.2d 737 (1987)). Instead, the ADEA only makes it unlawful
to discriminate against an individual based on age. 29 U.S.C.A. Sec. 623(a)
(West 1985); see Biggins, --- U.S. at ----, 113 S.Ct. at 1707 ("it cannot be true
that an employer who fires an older black worker because the worker is black
thereby violates the ADEA. The employee's race is an improper reason, but it is
improper under Title VII, not the ADEA"). Therefore, even if Super Valu's
business justification was in fact unlawful under a different statute than the
ADEA, Super Valu satisfied its burden of production under McDonnell Douglas

by rebutting the inference that it acted out of discriminatory animus. See

Flasher, 986 F.2d at 1317 n. 5.
60

Plaintiffs also argue that Super Valu made only "vague, general averments or
claims ... [of] good faith" in offering legitimate business reasons for failing to
hire the plaintiffs.

61

An employer satisfies the burden of production by presenting its reasons for not
hiring the plaintiffs with sufficient specificity to allow the plaintiff to
demonstrate pretext. Pitre v. Western Elec. Co., 843 F.2d 1262, 1265-66 (10th
Cir.1988). We believe Super Valu satisfied this burden. For example, Super
Valu called witnesses who testified to the following conduct at the Associated
Grocers warehouse: assorted acts of vandalism, foodstuff purposely damaged
or destroyed, company vehicles sabotaged, poor morale, low productivity, bad
attitude, expletives directed at Super Valu, and various other examples of anger
directed towards Super Valu. Such evidence is more than a mere general
assertion of good faith and was "specific enough to provide the plaintiff[s] with
'a full and fair opportunity to demonstrate pretext.' " Id. at 1266 (quoting
Burdine, 450 U.S. at 256, 101 S.Ct. at 1095).

62

Plaintiffs' final contention regarding admission of Super Valu's business

justification evidence is the court committed reversible error by admitting
hearsay and double hearsay evidence.

63

The business justifications offered by an employer must be "admissible

evidence," Burdine, 450 U.S. at 255, 101 S.Ct. at 1094, and hearsay is
generally not admissible under Fed.R.Evid. 803. Statements offered for the
effect on the listener, however, are generally not hearsay. United States v.
Lambinus, 747 F.2d 592, 597 (10th Cir.1984), cert. denied, 471 U.S. 1067, 105
S.Ct. 2143, 85 L.Ed.2d 500 (1985).

64

After careful review of the record, it is apparent the majority of business

justification evidence presented by Super Valu was nonhearsay testimony
regarding direct knowledge of vandalism, food product damage, low morale,
and animus towards Super Valu. In some instances, the trial court permitted
testimony concerning an out-of-court statement, but the testimony was offered
to establish Super Valu's state of mind in making its hiring decisions and was
not offered for the truth of the matter asserted. For example, the personnel
manager for Super Valu testified that he had removed Associated Grocers' exemployee applications from consideration because he heard about vandalism
and low morale among those individuals. Although this testimony incorporates

out-of-court statements, it was expressly presented to demonstrate Super Valu's

state of mind in not hiring Associated Grocers' ex-employees, and was not
offered to prove the truth of the matter overheard. Moreover, the trial court
repeatedly instructed the jury as to the limited purpose of the testimony.
65

Plaintiffs challenge the clarity of the trial court's instructions regarding the
"state of mind" evidence. Since plaintiffs did not raise the objection at trial, we
review for plain error. Denison, 941 F.2d at 1422. The district court informed
the jury on numerous occasions that testimony involving out-of-court
statements was not offered to prove the truth of the matter asserted, but instead,
was offered to show Super Valu's state of mind in making its employment
decisions. Although not every instruction was ideally worded, we find no plain
error.

B. Exclusion of Plaintiffs' Rebuttal Exhibits.

66
67

Plaintiffs allege the trial court erred when it refused to admit into evidence job
applications from some of the individuals hired by Super Valu. Plaintiffs
sought introduction of the applications to rebut Super Valu's assertion that some
of the plaintiffs were not as qualified as the individuals hired. The trial court
refused to admit the exhibits on the basis of unfair surprise to the defendant.

68

We review a trial court's determination to exclude exhibits due to unfair

surprise for an abuse of discretion. Moss v. Feldmeyer, 979 F.2d 1454, 1458-59
(10th Cir.1992). In this instance, the plaintiffs failed to mark the applications as
exhibits and thus defense was unprepared for their use. It was within the court's
discretion to order the attorneys to establish a list of exhibits prior to trial so
there would be no surprises. The trial court expressly noted that if evidence
came out at trial which caught plaintiffs unaware, then plaintiffs would be
allowed to rebut the evidence with evidence which was not previously marked
as an exhibit. The plaintiffs were not caught unaware in this instance and the
trial court noted "this is something you've known [about] for months."
Furthermore, Super Valu stipulated to three such job applications so the
admission into evidence of additional applications would have been merely
cumulative. Clearly, the trial court did not abuse its discretion.

69

Finally, plaintiffs allege the trial court erred by excluding a letter from defense
counsel to the EEOC. Plaintiffs used the letter in an attempt to refresh a
witness' recollection concerning whether Super Valu had hired any Associated
Grocers' ex-employees.

70

The record is incomplete as to this issue. First, it is impossible to glean from the

70

The record is incomplete as to this issue. First, it is impossible to glean from the
record the contents of the letter as the record does not contain either the letter or
a detailed discussion of the letter's contents. Second, the record does not
indicate that plaintiffs ever attempted to have the exhibit admitted into
evidence. During a bench conference, counsel for the plaintiffs informed the
judge that she "may offer this [exhibit], if it doesn't refresh [the witness']
recollection." Whether plaintiffs' counsel would have sought to admit the letter
into evidence cannot be determined from the record because the trial court
deemed it inadmissible during the bench conference. The court was apparently
concerned that defense counsel might be called to the stand to explain the letter.
In any event, assuming the letter was actually excluded from evidence, we fail
to see from the record how the court's decision was an abuse of discretion or
how the plaintiffs suffered any harm. See Gilbert, 989 F.2d at 405 (a trial
court's decision to exclude evidence is generally not overturned absent manifest
injustice) (citing Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987)). In
reaching our conclusion, we specifically note that (1) the witness was allowed
to read from the letter to refresh his memory; and (2) evidence concerning
Super Valu's hiring of some Associated Grocers' ex-employees already existed
in the record in the form of testimony.

71

We AFFIRM the jury's verdict.

Plaintiffs also allege the district court abused its discretion in permitting
pension and Social Security benefits earned from prior, unrelated employment
to be offset from any remedial award. We do not reach this issue of damages as
plaintiffs fail on the merits of their age discrimination suit

McDonnell Douglas and Burdine involve disparate treatment claims under Title
VII of the Civil Rights Act, but the same allocation of burdens and proof is
applied to claims under the ADEA. See MacDonald v. Eastern Wyoming
Mental Health Center, 941 F.2d 1115, 1119 (10th Cir.1991); Denison v. Swaco
Geolograph Co., 941 F.2d 1416, 1420 (10th Cir.1991)

Jury instruction number 13 states as follows:

In order to prevail on his first theory of unlawful age discrimination, "disparate
treatment," each plaintiff must prove, by a preponderance of the evidence, that
his age was a determining factor in defendant's failure to hire him. However, a
plaintiff need not prove that age was the sole or exclusive motivation for
defendant's failure to hire him. Age is a determining factor if a plaintiff would
have been hired except for his age. A disparate treatment claim is a claim of
intentional discrimination.

Plaintiffs are not required to produce direct evidence of unlawful motive.

Discrimination, if it exists, is seldom admitted, but is a fact which you may
infer from the existence of other facts.
In deciding whether age was a determining factor in defendant's failure to hire
each plaintiff, you must first consider whether the plaintiff has established each
of the following elements by a preponderance of the evidence:
First: The plaintiff was within the protected age group, that is, he was at least
forty years old;
Second: The plaintiff applied for a position with defendant when defendant was
seeking applications and was hiring;
Third: The plaintiff was not hired;
Fourth: A younger person was hired in the plaintiff's place.
In this case, the first element is not contested since the defendant admits that
plaintiffs were over 40 and within the protected age group when they applied.
You should concentrate on the other three elements.
If a plaintiff has proven these four elements, then the defendant must come
forward and rebut the plaintiff's case by producing some evidence that the
failure to hire the plaintiff was based upon a legitimate, non-discriminatory
reason. If the plaintiff can then show by a preponderance of the evidence that
the reasons given by the defendant are a pretext, which is a phony or
unbelievable reason for the failure to hire the plaintiff, you may infer that the
real reason for the failure to hire was the plaintiff's age.
To summarize, the burden of proof as to age discrimination is always on the
plaintiff. If a plaintiff fails to meet any part of his burden, your verdict must be
for defendant.
4

Jury instruction number 14 provides:

It is not necessary that defendant, in offering legitimate, non-discriminatory
reasons for not hiring plaintiffs, was right or correct in its reasons, but only that
it believed them in good faith.
A plaintiff's mere belief that defendant's explanation is pretextual or that he was
treated unfairly, in and of itself, is insufficient as a matter of law to prove age
discrimination.

Inconsistencies and implausibilities in defendant's stated reasons for not hiring

plaintiffs may support an inference that defendant acted for discriminatory
reasons.
Jury instruction number 15 provides:
You should be mindful that the law requires only that employers not
discriminate against an employee because of his age. An employer may fail to
hire an employee for any other non-discriminatory reason, good or bad, fair or
unfair, and you should not second guess that decision. Defendant's reasons do
not have to be reasons you would approve of or act upon; neither does the law
require an employer to extend any special or favored treatment to employees in
a protected age group.
You are not to substitute your judgment for that of defendant in its employment
decisions.
Subjective factors are permissible if they are non-discriminatory and are not
pretextual to cover up discrimination.
5

The appropriate model for a prima facie case of disparate treatment is flexible
and factually bound. A more detailed standard akin to the instruction given in
this case is provided in McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824

In Thurston, the Supreme Court found an employer's transfer policy was, on its
face, discriminatory under the ADEA. Thurston, 469 U.S. at 120-21, 105 S.Ct.
at 621-22. Courts have interpreted Thurston as involving a disparate impact
claim. See, e.g., Neufeld v. Searle Laboratories, 884 F.2d 335, 340 (8th
Cir.1989). The Supreme Court has since clarified that Thurston was a disparate
treatment case. Biggins, --- U.S. at ----, 113 S.Ct. at 1706

We note that Lujan v. Walters, 813 F.2d 1051, 1058 (10th Cir.1987) involved a
disparate treatment claim under the ADEA, yet the opinion states "[t]here is no
showing of disparate impact." Because the Walters court never performed a
disparate impact analysis and apparently does not use disparate impact as a
term of art, we do not interpret Walters as recognizing the validity of a
disparate impact claim under the ADEA

Plaintiffs argue the Civil Rights Act of 1991 alters the disparate impact law
under Wards Cove by imposing a heavier burden on the employer. We will not
address the retroactivity of the 1991 Civil Rights Act as it is not apparent that
the 1991 Civil Rights Act would alter the result of this case. See Murphy v.
Derwinski, 990 F.2d 540, 544 n. 11 (10th Cir.1993) (declining to address the
retroactivity of the 1991 Civil Rights Act as it affects Wards Cove because the

outcome of the trial would be unaffected). We further note that in this case, the
retroactivity issue would necessarily be preceded by a determination of whether
the 1991 Civil Rights Act applies to the ADEA, an issue not raised by
plaintiffs, and that such a determination would be placed precariously on top of
the assumption already made concerning the applicability of disparate impact
theory to the ADEA
9

Jury instruction 16 informs a jury that if a plaintiff proves the elements

necessary for a prima facie case, it "must find in favor of the plaintiff, unless
[it] find[s] that defendant's employment policy was a business necessity." Jury
instruction 17 then defines "business necessity," in relevant part, as follows:
A "business" necessity is a policy or practice which is job related and of great
importance to the performance of the job at issue. It must serve in a significant
way the legitimate employment goals of the employer. However, there is no
requirement that the challenged practice be essential or indispensable to the
employer's business.

10

Under Fed.R.Evid. 104(b), if the relevancy of proffered evidence is conditional

upon a preliminary fact, the evidence should be admitted to the jury after the
judge makes a preliminary determination that the foundational evidence is
sufficient to support the jury's finding that the condition was fulfilled. In the
present case, the relevancy of each party's statistical analysis was conditional
upon the at-issue job determination

11

The Supreme Court stated:

[W]ith respect to the skilled noncannery jobs at issue here, the [non-skilled]
cannery work force in no way reflected "the pool of qualified job applicants" or
the "qualified population in the labor force." Measuring alleged discrimination
in the selection of accountants, managers, boat captains, electricians, doctors
and engineers--and the long list of other "skilled" noncannery positions ... --by
comparing ... the number of nonwhites filling cannery worker positions is
nonsensical.
Wards Cove, 490 U.S. at 651, 109 S.Ct. at 2122.

12

In determining the at-issue jobs, we note that the challenged employment

policy must be applied equally to the different job categories in question. For
example, if Super Valu's policy of not hiring Associated Grocers' ex-employees
was applied to applicants for warehousemen positions but not drivers, then it
would be nonsensical to include drivers in the statistical analysis. The purpose
of conducting the statistical analysis is to determine whether the employment
policy had a disparate impact and therefore, to include a job category in the at-

issue jobs which was unaffected by the employment policy would skew the
result. In this case, the record indicates Super Valu's employment policy of not
hiring Associated Grocers' ex-employees was applied to drivers as well as
warehousemen
13

For example, in Wards Cove, the at-issue jobs were the skilled noncannery
positions which encompassed a broad array of different jobs. Wards Cove, 490
U.S. at 651, 109 S.Ct. at 2121

14

Instruction 16 clearly states that the "plaintiffs need only prove that the
[employment] policy had a discriminatory effect." Instruction 18 sets forth the
proper law for statistical comparisons: "[t]he proper comparison for statistical
analysis is between the age composition of the at-issue jobs and the age
composition of the people who applied for the at-issue jobs."

15

One witness testified that there were signs held in the picket line that said
Associated Grocers was "being screwed" by Super Valu. Witnesses also
testified that people in the picket line were yelling that Super Valu was unfair
and cost them their jobs

16

The claim appears even more questionable in view of the fact that Super Valu
employees were required to join the same union which handled Associated
Grocers' employees