UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-20007 Summary Calendar _____________________

HENRY J. HARRINGTON, JR.,

Plaintiff-Appellant,

versus

SUN LIFE ASSURANCE COMPANY OF CANADA,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Texas (CA-H-93-1908) _____________________________________________________

November 7, 1995

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIUM:1

Henry J. Harrington challenges an adverse judgment, following

a jury trial, in his age discrimination suit, grounding error on

the exclusion of statistical and anecdotal evidence. We need not

address his contention that the general category of statistical and

anecdotal evidence, which he sought to admit, is admissible in

ADEA2 cases, because we conclude that, even assuming error, it was

1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published. 2 Age Discrimination in Employment Act,

, et seq. harmless in light of the minimal value of the evidence compared to

the overwhelming evidence that the employer's stated rationale for

dismissing Harrington was the true motivation for its actions.

Accordingly, we AFFIRM.

I.

Harrington was employed by Sun Life Assurance Company of

Canada. Since receiving a promotion in 1984, he served as the

Group Manager of the company's Houston Group Office, and was

responsible for hiring and training Sun's sales force in Houston

and for running the Houston Group Office.

Harrington was dismissed in June 1991 by Sun vice president

James McNulty, who told Harrington that the decision was based,

inter alia, on his poor performance and attitude. This was the

nondiscriminatory reason proffered by Sun at trial as well.

At trial, Harrington, who was 47 years of age when terminated,

sought to introduce statistical and anecdotal evidence purporting

to demonstrate at Sun a pattern of discrimination based upon age.

None of this evidence was based upon, or directly illustrative of,

Harrington's employment experience; and the court ruled it

irrelevant and prejudicial. Specifically, the court noted that it

was troubled by the fact that, among the 14 people to be

characterized as examples of a pattern of age-motivated dismissals,

were four to six who had taken early retirement. After visiting

the question several times, and extensively, during the trial, the

court noted that exclusion of unduly prejudicial evidence was

within its discretion and ruled that it would not admit it.

- 2 - At the conclusion of the five-day trial, the jury found, in

response to a special interrogatory, that Sun's stated

nondiscriminatory reason for terminating Harrington's employment

was not a pretext; judgment was entered for Sun.

II.

Harrington asserts that the trial court erroneously excluded

evidence.3 We review evidentiary rulings for abuse of discretion.

Harpring v. Continental Oil Co.,

(5th Cir. 1980),

cert. denied,

(1981); Fed. R. Civ. P. 103. Of course,

a finding of harmless error obviates the need to consider whether

error occurred. See Fed. R. Evid. 103; Fed. R. Civ. P. 61.

As is well known, the plaintiff in an age discrimination

action must first make a prima facie case; then, if the employer

articulates a legitimate nondiscriminatory reason for terminating

his employment, he must counter it with evidence that the reason is

untrue and a pretext for discrimination. Texas Dept. of Community

Affairs v. Burdine,

(1981). The shifting

described in Burdine is useful primarily for considering judgments

as a matter of law. Once the jury was given the case, the question

was simply whether Harrington satisfied his burden of

demonstrating, by a preponderance of evidence, that his dismissal

was illegally motivated by age.

Upon review of the evidence and Harrington's arguments for

admitting the excluded evidence, we conclude that the excluded

3 The EEOC's motion for leave to file an untimely amicus brief is GRANTED.

- 3 - evidence could not have meaningfully buttressed Harrington's case,

and that Sun's evidence that Harrington was dismissed because he

failed to live up to Sun's changing needs was overwhelming.

Therefore, as shown below, we conclude that the error, if any, was

harmless.

Some of the excluded evidence dealt with six ADEA actions

against Sun. Harrington asserted that, by introducing, inter alia,

Sun's answers to interrogatories filed in those actions, he could

establish willful or reckless disregard for the ADEA's

requirements. But, Sun, of course, was willing to stipulate its

awareness of the ADEA's provisions.

Harrington also attempted to enter evidence regarding the

above-noted early retirement agreements, which the court excluded

because none of them related directly to Harrington.

Finally, Harrington was not allowed to present testimony by

two witnesses concerning their employment at Sun and their belief

that it reflected age discrimination. The court ruled, after

hearing the testimony outside the jury's presence, that the

evidence was inadmissible; it had earlier so ruled.

Harrington did introduce evidence that his past performance

with Sun had garnered him awards and positive feedback from

supervisors. This evidence included a 1990 letter referring to his

effort to increase area sales, but which did not refer to his

personal sales.4 Harrington also offered evidence that profits in

4 According to Sun's evidence, Harrington had only one new case in the third quarter of 1990.

- 4 - the Houston group increased in 1990, and presented testimony by a

former Sun employee that Harrington's attitude and work ethic were

praised at Sun.

But, Sun's position at trial was that Harrington's work ethic

and attitude, particularly regarding his personal sales

responsibilities, were poor at the time of his June 1991 dismissal.

Harrington's evidence, because it bore on his performance either

before McNulty was hired in March 1990 to improve Sun's

profitability, or on aspects of Harrington's performance other than

those McNulty found paramount in his effort to revamp Sun's

profitability, did not undermine Sun's proffered reason for

termination. Harrington's lack of success in meeting McNulty's

standards, adopted to make management more responsible for the

sales generated by their departments and for personal sales

performance, was not refuted by Harrington's evidence -- either the

admitted or the excluded.

By contrast, Sun introduced extensive evidence that

Harrington's work was not satisfactory at the time of his

dismissal. McNulty testified at length about his plan for the

company, and why Harrington's performance was unacceptable given

that plan to make Sun more profitable. Moreover, Harrington

admitted on cross that his personal sales had decreased; that his

office's proposal output had dropped, as had its generation of

prospects; that he had not considered making out-of-the-office

calls to be a significant priority; and that his supervisor was

- 5 - concerned about Harrington's low personal production, and had

notified Harrington of this concern.

III.

In sum, we conclude that, on the record from this jury trial,

the error, if any, was harmless. Accordingly, the judgment is

AFFIRMED.

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