(caption unavailable)

* Local Rule 47.5 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that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-1390
_____________________
JAMES G. EASON,
d/b/a Geomet Mfg. Co., Plaintiff-Appellant,
versus
FLEMING COMPANIES, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(CA 3 88 2750 R)
_________________________________________________________________
( August 24, 1993 )
Before REAVLEY, KING, and GARWOOD, Circuit Judges.
PER CURIAM:*
James G. Eason brought this action in November 1988,
asserting that his former employer, Fleming Companies, Inc.,
violated the Age Discrimination Employment Act when it laid him
off. A jury trial was conducted, and the jury rendered a verdict
that Fleming did not discriminate against Eason on the basis of
his age. The district court entered a judgment in accordance

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2
with the jury's verdict, and Eason now appeals from that
judgment. We affirm.
I. BACKGROUND
A. Facts
Fleming Companies, Inc. is a wholesale distributor of
perishable and non-perishable food items to retail outlets
located throughout the nation. Fleming's operations are divided
into four regions, one of which is designated "the Southern
Region," which consists of New Mexico, Oklahoma, Texas,
Louisiana, Mississippi, Alabama, Georgia, Florida, Tennessee,
Kentucky, North Carolina, Virginia, and West Virginia. The
distribution aspect of Fleming's operations is managed through
"General Merchandise Divisions" (GMD's). Prior to January 26,
1987, Fleming maintained two GMD's in the Southern Region--one in
Dallas, Texas and another in Columbus, Georgia.
Eason was born on November 27, 1928. He was hired by
Fleming in February 1981 (at the age of fifty-two) as an electric
data processing manager (EDP manager) in Fleming's Dallas GMD.
The EDP department provides electronic information storage and
retrieval services--for example, the tracking of inventory
balances, sales and other financial records, customer billing,
and shipping orders--throughout a given GMD, and provides
Fleming's accounting department with the information needed to
maintain the GMD's financial records. Accordingly, the EDP
relies heavily upon the use of complex computer systems and
programs. As the EDP manager, Eason held overall responsibility

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1 In the brief he has submitted to this court, Eason
asserts that he "never received less than a satisfactory rating
during the entire time he was employed with [Fleming], and every
year received salary increases placing him higher within his
salary range than almost all other department heads." He also
states that, prior to his termination, he "received recognition
and awards that were based upon his performance as well as the
performance of his department, for which he was responsible."
2 According to Fleming, "[t]he Columbus GMD was closed
primarily because Fleming could not generate enough sales volume
in that Division to make it profitable."
3
for the EDP processing department in the Dallas GMD, and he acted
as the GMD's primary contact with Fleming's regional information
systems development staff. According to Fleming, during his
employment, Eason was never rated better than a satisfactory
performer by any of his supervisors1 and "Fleming's Regional
Information Systems Development Staff experienced numerous
problems working with Eason in dealing with computer problems and
systems enhancements."
Fleming announced that it would be closing its Columbus GMD
in May 1987, and it actually closed the GMD in July 1987.2 As a
result of this closing, and following a series of employee
transfers to other Fleming divisions located in the Southern
Region, two skilled management employees in the Columbus GMD--
Mark Greathouse and James Wilder--were left without positions.
Accordingly, Fleming compared these two employees with their
counterparts in the Dallas GMD to determine who were the better
employees. Greathouse was compared with Norm Newton, the
controller in the Dallas GMD. Wiley Raper, president of the
Dallas GMD, determined that Newton was the better employee.

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3 Wilder had worked for Fleming as its Columbus EDP manager
since being hired in September 1985.
4
Greathouse, accepting a demotion rather than being dismissed,
transferred to the chief accountant position in the Dallas GMD.
Raper also compared Eason with Wilder and determined that Wilder
was the more competent EDP manager; at the time this comparison
was made, Eason was fifty-eight years old and Wilder was forty-
nine years old.3 Because there were no other EDP positions
available in the Southern Region, Eason was notified of his lay-
off in June 1987. Fleming compensated Eason for three weeks of
accrued vacation time and gave him the equivalent of four weeks
of salary in severance pay.
B. Proceedings
In July 1987, Eason filed a charge of discrimination with
the United States Equal Employment Opportunity Commission (EEOC),
alleging that he had been terminated based upon his age and in
violation of the Age Discrimination in Employment Act (ADEA). At
the time he filed this charge, Eason filled out an EEOC
questionnaire, executed an affidavit in support of his charge,
and was interviewed by an EEOC investigator. Following an
investigation of Eason's charge, the EEOC issued a determination
that Fleming had not discriminated against Eason based upon his
age. Eason appealed this determination to the EEOC's Washington,
D.C. office, but his appeal was denied.
In November 1988, Eason then brought this action in federal
district court, again alleging that he had been laid off from his

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5
employment with Fleming in violation of the ADEA. Eason's case
was tried to a jury, which rendered a verdict in favor of
Fleming, concluding that Eason had failed to prove that he had
been discriminated against on the basis of his age. The district
court entered a final judgment in favor of Fleming, and Eason
appeals from that judgment.
II. DISCUSSION
Eason's appeal consists of challenges to several evidentiary
rulings made by the district court. Specifically, Eason asserts
that the district court abused its discretion and committed
reversible error in: (1) admitting the EEOC's determination of no
probable cause (a determination that Eason was not laid off based
upon his age); (2) not admitting a General Accounting Office
(GAO) report concluding that the EEOC generally does not
adequately investigate charges of discrimination; (3) refusing to
admit Fleming's interrogatory responses, which contain the names
and birth dates of those who held the EDP manager position after
Eason's replacement, Wilder, resigned; and (4) refusing to admit
the testimony of Frank Rowe, a Fleming employee at the time Eason
was laid off.
A. Standard of Review
This court has recognized that, because of her or his
involvement in the trial, a district court judge often has
superior knowledge and understanding of the probative value of
evidence. See Hardy v. Chemetron Corp., 870 F.2d 1007, 1009 (5th
Cir. 1989). Therefore, we show considerable deference to the

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4 See Sullivan v. Rowan Companies, Inc., 952 F.2d 141, 146
(5th Cir. 1992).
6
district court's evidentiary rulings,4 reviewing them only for a
clear abuse of discretion. See Seidman v. American Airlines,
Inc., 923 F.2d 1134, 1138 (5th Cir. 1991); Jackson v. Firestone
Rubber Co., 788 F.2d 1070, 1075 (5th Cir. 1986) (the district
court has wide and flexible discretion regarding the
admissibility of evidence); McNeese v. Reading & Bates Drilling
Co., 749 F.2d 270, 274 (5th Cir. 1985). In fact, we will reverse
a judgment based upon an improper evidentiary ruling "only where
the challenged ruling affects a substantial right of a party."
Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1400 (5th
Cir. 1986); Cates v. Sears, Roebuck & Co., 928 F.2d 679, 686 (5th
Cir. 1991); Koonce v. Quaker Safety Products & Manufacturing Co.,
798 F.2d 700, 720 (5th Cir. 1986); see also FED. R. EVID. 103(a)
("Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected . . . .") (emphasis added).
B. The Evidentiary Rulings in Dispute
(1) The EEOC Determination. Eason's first challenge is to
the district court's admission of the EEOC's determination of no
probable cause for discrimination. Specifically, at trial, Eason
requested through a motion in limine that the EEOC determination
be excluded from the evidence. After hearing Eason's other
evidence and arguments, the district court denied Eason's motion
in limine, overruled his objections, and admitted the EEOC's

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5 Rule 803(8)(C) provides:
Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting
forth . . . (C) in civil actions and proceedings
against the Government in criminal cases, factual
findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
6 McClure, 750 F.2d at 400; Garcia v. Gloor, 618 F.2d 264,
272 (5th Cir. 1980), cert. denied, 448 U.S. 1113 (1981).
7
determination into evidence. On appeal, Eason asserts that the
district court committed reversible error in admitting the EEOC's
determination because (1) its probative value was outweighed by
its prejudicial effect, and (2) it was not sufficiently
trustworthy under Rule 803(8)(C) of the Federal Rules of
Evidence.5
It is well-established that, in employment discrimination
cases brought under Title VII of the Civil Rights Act and the
ADEA, EEOC determinations regarding a plaintiff's claims of
discrimination are not binding on the trier of fact. Smith v.
Universal Services, Inc., 454 F.2d 154, 157 (5th Cir. 1972).
Nevertheless, this court has recognized that EEOC determinations
constitute reports of public agencies under Rule 803(8)(C) of the
Federal Rules of Evidence,6 and that they are generally probative
evidence concerning contested issues in employment discrimination
cases. See McClure v. Mexia Independent School District, 750
F.2d 396, 400 (5th Cir. 1985). Consequently, we have held that
EEOC determinations may constitute admissible evidence in
employment discrimination cases. See, e.g., Smith, 454 F.2d at

-- 7 of 21 --

7 The justification for this exception to the hearsay rule
is the assumption that public officials will perform duties
properly and the unlikelihood that they will remember details
independent of the record. See FED. R. EVID. 803(8) (Advisory
Committee Note) (West 1992); Moss v. Ole South Real Estate, Inc.,
933 F.2d 1300, 1305 (5th Cir. 1991).
8
158; Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th
Cir. 1975); Garcia, 618 F.2d at 272; Dickerson v. Metropolitan
Dade County, 659 F.2d 574, 579 (5th Cir. 1981); Turpen v.
Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir.
1984). We also have held that EEOC determinations are equally
admissible in jury and non-jury employment discrimination cases.
McClure, 750 F.2d at 400. However, we have recently concluded
that, despite their probative value, EEOC determinations may be
excluded from evidence (a) where they fail to satisfy the
trustworthiness requirement under Rule 803(8)(C) of the Federal
Rules of Evidence or, (b) pursuant to Rule 403 of the Federal
Rules of Evidence, where the court determines that their
probative value is substantially outweighed by their prejudicial
effect. Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir.
1992).
(a) Rule 803(B)(C) Challenge.
Rule 803(8)(C) creates a rebuttable presumption that reports
prepared by government officials--including opinions and
conclusions contained in such reports--are admissible as
exceptions to the hearsay rule.7 Moss, 933 F.2d at 1305. A
party may overcome this presumption by affirmatively
demonstrating that the report lacks trustworthiness. Id. at

-- 8 of 21 --

8 In his reply brief, Eason packages his challenges so as
to more closely approximate a legitimate challenge under Rule
803(8)(C) by stating that "the facts and conclusions contained in
the EEOC determination are untrustworthy because (1) they are the
product of an unreliable investigative methodology, and (2) the
lack of credible sources of the information contained in the
Determination." Eason also criticizes the determination as being
based on the work of non-investigative EEOC personnel. We
conclude, however, that, based upon our review of the
9
1307. To make a trustworthiness determination, courts must
evaluate the report's reliability by focusing upon the
methodology behind the report rather than upon its findings and
conclusions. Id. at 1307-08; see also United States v. Puente,
826 F.2d 1415, 1418 (5th Cir. 1987). Consequently, the party
opposing the admissibility of a government report must
demonstrate that it was compiled utilizing methods that cannot be
relied upon; general complaints that the report is incomplete or
inaccurate go to the weight afforded the report rather than to
its admissibility. Moss, 933 F.2d at 1307.
Eason's challenge to the EEOC's determination in the case
before us is that the report is not trustworthy because certain
evidence was not submitted to the EEOC and Eason was never
interviewed by the EEOC subsequent to his initial intake
interview. We conclude that this challenge bears more upon the
determination's completeness than its trustworthiness. See Moss,
933 F.2d at 1307. Specifically, Eason is arguing essentially
that the report is not trustworthy because it is incomplete; he
does not actually challenge the EEOC's methods in compiling the
report--for example, the EEOC's use of the questionnaire
completed by Eason, his interview, and his affidavit.8

-- 9 of 21 --

determination in light of the entire record before us, these
challenges are still not substantive enough for us to hold that
the determination is untrustworthy and that the district court
abused its discretion by admitting it.
9 Herrington v. Hiller, 883 F.2d 411, 414 (5th Cir. 1989);
Dartez v. Fibreboard Corp., 765 F.2d 456, 461 (5th Cir. 1985).
10
Accordingly, we conclude that, under the circumstances presented
in the case before us, the district court did not abuse its
discretion in refusing to exclude the EEOC determination.
(b) Rule 403 Challenge. Eason also raises a Rule 403
challenge to the admissibility of the EEOC determination. Rule
403 provides that,
[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
To determine whether evidence should be excluded pursuant to Rule
403, courts must balance the prejudicial effect of the evidence
against its likely probative value. Jackson v. Firestone Tire &
Rubber Co., 788 F.2d 1070, 1075 (5th Cir. 1986); Nissho-Iwai Co.
v. Occidental Crude Sales, Inc., 848 F.2d 613, 618 (5th Cir.
1988). Therefore, Rule 403 determinations are inextricably bound
with the facts of a particular case, and they will not be
disturbed absent a showing of "clear abuse." Shipp v. General
Motors Corp., 750 F.2d 418, 427 (5th Cir. 1985). Because Rule
403 permits the exclusion of probative evidence, it is an
extraordinary remedy that must be used sparingly,9 and we have
cautioned that it may not be utilized to vitiate the presumption

-- 10 of 21 --

10 Cortes involved a challenge to a district court's
decision to exclude an EEOC determination pursuant to Rule 403 on
the grounds that its probative value was substantially outweighed
by its possible prejudicial effect. 977 F.2d 202. We held that,
even if the district court erred by inferring that the plaintiff
was never interviewed, its decision to exclude the determination
did not amount to an abuse of discretion. Our decision was based
on the fact that "the documents contain only a few factual
findings and most of these regard a retaliation charge, which
Cortes withdrew before trial." Id.
11
in favor of the admissibility of government reports set forth in
Rule 803(8)(C). See Moss, 933 F.2d at 1308; Cortes, 977 F.2d at
201 ("[T]he balancing test of Rule 403 should not be misused in
such a way that would end the presumption that evaluative reports
are admissible hearsay under Rule 803(8)(C).") (internal
quotation omitted).
We have reviewed the EEOC determination in light of the
entire record before us. Although the EEOC determination is
merely a summary of evidence in the record, it is a summary fully
supported by the record. Moreover, the district court provided
the jury with three cautionary instructions regarding the
determination, and we conclude that these instructions
sufficiently clarified the probative value of the determination
for the jury. Finally, to support his challenge, Eason relies
heavily upon our recent decision in Cortes, 977 F.2d 195, a case
we find readily distinguishable from the case before us.10
Therefore, we conclude that, in light of the court's cautionary
instructions, the general admissibility of government reports
under Rule 403 as discussed above, and our review of the

-- 11 of 21 --

12
determination in light of the entire record, the district court
did not abuse its discretion by admitting the EEOC determination.
(2) The GAO Report. Eason also contends that the district
court erroneously excluded a report prepared by the GAO which
asserts that the EEOC does not adequately investigate charges of
discrimination. This report specifically criticizes three EEOC
investigatory procedures, and Eason asserts that it is admissible
pursuant to Rule 803(8). According to Eason,
the cumulative effect of allowing Defendant to
introduce the EEOC determination of no discrimination,
and at the same time excluding the GAO Report, was that
Eason was severely and irreparably prejudiced. In
essence, the jury considered evidence of the ultimate
expert in a discrimination case, the EEOC, without it
being allowed to consider evidence that the EEOC has
failed to properly investigate a large percentage of
cases. These facts demonstrate a clear abuse of
discretion and constitute reversible error.
In response, Fleming asserts that "the District Court properly
excluded the GAO report because it was not listed in Eason's List
of Exhibits, and because the report was not probative of the
investigation conducted by the EEOC into Eason's Charge of
Discrimination." In support of this proposition, Fleming relies
upon Rule 16(e) of the Federal Rules of Civil Procedure, which
instructs judges to enter pre-trial orders to define the scope of
the issues at trial.
Pursuant to Rule 16, district court judges have wide
latitude in formulating orders governing trial proceedings, and
such orders only can be modified upon a showing of manifest
injustice. Book v. Nordrill, Inc., 826 F.2d 1457, 1460 (5th Cir.
1987) ("Rule 16 gives a trial judge wide latitude in governing

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13
the proceedings, and can only be modified upon a showing of
manifest injustice."). Moreover, when a district court has
required the identification of exhibits pursuant to a Rule 16
pretrial order, the district court has broad discretion in
deciding whether to admit unlisted exhibits into evidence.
Robert v. Conti Carriers & Terminals, Inc., 692 F.2d 22, 24 (5th
Cir. 1982) ("A trial judge has broad discretion in deciding
whether to admit evidence not included in pretrial orders.");
Burdis v. Texas & Pacific Railway Co., 569 F.2d 320, 323 (5th
Cir. 1978) ("[T]he rule in this Circuit is that decisions
concerning variance from the pretrial order are within the sound
discretion of the trial judge as interpreter of the pretrial
order.") (internal quotation omitted). The failure to timely
identify an exhibit is a sufficient reason to deny its admission.
Gilbert v. Tulane University, 909 F.2d 124, 127 (5th Cir. 1990)
("The district court has broad discretion in deciding whether to
admit into evidence exhibits not listed in the pre-trial
order.").
Eason disclosed the GAO report for the first time when he
moved for its admission on the third day of trial, and it was
excluded based upon Eason's failure to comply with the district
court's pretrial scheduling order. Eason attempts to rebut this
basis for not admitting the evidence by asserting that it was
offered as unanticipated rebuttal evidence in light of the
district court's admission of the EEOC determination. We find it
difficult to imagine that the admission of the EEOC determination

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11 Rule 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident.
FED. R. EVID. 404(b).
14
was wholly unanticipated. Moreover, because the GAO report is a
general attack on EEOC investigations, it would have been
reasonable for the district court to conclude that the report was
not sufficiently probative of the EEOC's investigation of Eason's
charges. We conclude, therefore, that the district court did not
abuse its discretion by refusing to admit the GAO report.
(3) The Interrogatory Responses. Eason also challenges the
district court's refusal to admit Fleming's interrogatory
responses. These responses indicate that Wilder, who was
approximately ten years younger than Eason when he was chosen
over Eason, was ultimately replaced by two individuals who were
substantially younger than Eason. According to Eason, these
interrogatory responses constitute evidence of other wrongful
acts, which is admissible pursuant to Rule 404(b) of the Federal
Rules of Evidence,11 or "habit" evidence admissible pursuant to

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12 Rule 406 provides that:
Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity
with the habit or routine practice.
FED. R. EVID. 406.
13 Fleming also asserts that Rowe's testimony is
inadmissible pursuant to Rule 26(e) of the Federal Rules of Civil
Procedure since Eason failed to supplement his interrogatory
responses. Because, as is discussed below, we conclude that the
evidence at issue was properly excluded on the other grounds
asserted by Fleming, we do not reach this issue.
15
Rule 406 of the Federal Rules of Evidence.12 Eason also asserts
that
The facts and the controlling law of this case indicate
that the ages of Shirley and Hoffman are relevant,
pursuant to F.R.E. 404(b) and 406, to show the plan,
intent, and/or practice of Fleming of favoring younger
employees. The trial court's exclusion of this
evidence was misplaced and constitutes clear abuse of
discretion.
Fleming argues that this evidence is inadmissible because (a) it
is not proper "habit" evidence pursuant to Rule 406; and (b) it
is irrelevant pursuant to Rules 401, 402, and 403 of the Federal
Rules of Evidence.13
(a) Rule 406. Pursuant to Rule 103(a)(2) of the Federal
Rules of Evidence, "in asserting objections to a trial judge's
exclusion of evidence, a party is required . . . to carefully
articulate every ground for which the evidence is admissible."
Reese v. Mercury Marine Division of Brunswick Corp., 793 F.2d
1416, 1421 (5th Cir. 1986). "Failure to do so renders the

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16
district court's ruling reversible only upon a finding of plain
error." Id.
Eason never notified the district court that Fleming's
interrogatory responses were being offered specifically as
"habit" evidence pursuant to Rule 406 of the Federal Rules of
Evidence. Moreover, the evidence at issue consists only of two
incidents in which Fleming placed an employee younger than Eason
in the EDP manager position subsequent to his replacement's
resignation. As we explained in Weil v. Seltzer, 873 F.2d 1453,
1460 (D.C. Cir. 1989), "habit refers to the type of nonvolitional
activity that occurs with invariable regularity. It is the
nonvolitional character of habit evidence that makes it
probative." In Weil we concluded that the evidence of a doctor's
treatment of five former patients did not constitute habit as
envisioned in Rule 406. Id. at 1460-61. Similarly, we conclude
now that the district court did not commit plain error by
determining that Eason's evidence of two hiring incidents was
insufficient to establish the nonvolitional nature of activity
required by Rule 406. See Reyes v. Missouri Pacific Railroad
Co., 589 F.2d 791, 795 (Cir. 1979) (four prior convictions for
public intoxication spanning a three and one-half year period are
of insufficient regularity to rise to the level of habit
evidence).

-- 16 of 21 --

14 Rule 401 defines "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." FED. R.
EVID. 401. Rule 402 provides that:
[a]ll relevant evidence is admissible, except as
otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is
not admissible.
FED. R. EVID. 402.
17
(b) Rules 401, 402, and 403. Pursuant to Rules 401 and 402
of the Federal Rules of Evidence,14 evidence is relevant and
admissible only if it tends to make the existence of any fact
that is of consequence in the litigation more or less probable.
See Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1318
(5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986); Lubbock Feed
Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 264 (5th Cir.
1980). Nevertheless, pursuant to Rule 403 of the Federal Rules
of Evidence, a district court may exclude relevant evidence "if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." See Harpring v.
Continental Oil Co., 628 F.2d 406, 410 (5th Cir. 1980) (affirming
a district court's refusal to admit comparative evidence
pertaining to other employees in an employment discrimination
context), cert. denied, 454 U.S. 819 (1981).

-- 17 of 21 --

18
The evidence at issue consists of the ages of just two
employees who were hired to replace Eason's replacement--
employees who were not even candidates for the EDP manager
position at the time Eason was laid off. Although it is possible
that such evidence may be admissible under other circumstances,
we conclude that admitting such evidence in the case before us
may have unnecessarily complicated the issues and confused the
jury. Accordingly, we cannot conclude that the district court's
refusal to admit this evidence constitutes an abuse of
discretion.
(4) The Rowe Testimony. Eason's final evidentiary
challenge is that the district court erroneously excluded Rowe's
testimony that Wilder lacked the knowledge required to serve as
EDP manager. According to Eason,
the district court's exclusion of Rowe's testimony
unfairly deprived Eason of any opportunity to carry his
ultimate burden of proof and predetermined the jury's
credibility assessments by shielding them from
corroborative evidence which would have otherwise
affected those assessments.
According to Fleming, Rowe's testimony was properly excluded
because (1) Rowe was not placed on Eason's list of witnesses, as
was required by the district court's Rule 16(c) pre-trial order,
(2) Rowe was not an unanticipated rebuttal witness, and (3)
Rowe's testimony would be wholly repetitive and duplicative.
As stated supra in Part II.B.(2), district courts have wide
discretion to enforce the mandates of their pretrial orders
pursuant to Rule 16 of the Federal Rules of Civil Procedure.
This court has held that the failure to list a witness pursuant

-- 18 of 21 --

19
to a Rule 16 pretrial order constitutes sufficient justification
for excluding that witness' testimony. See, e.g., Lirette v.
Popich Brothers Water Transport, Inc., 660 F.2d 142, 144-45 (5th
Cir. 1981) (holding that the district court did not abuse its
discretion in excluding the testimony of a witness not identified
until the morning of trial); Newman v. A.E. Staley Manufacturing
Co., 648 F.2d 330, 333 (5th Cir. 1981) ("Failure of a district
court to allow defendant to present a witness who was not named
in a required witness list to testify contrary to the plaintiff's
evidence is not an abuse of discretion if the defendant was on
notice that the plaintiff would present the evidence at issue.").
Eason's entire case rests on an assertion that he was fired
because of his age rather than because Wilder was a better
employee. Moreover, in defense to Eason's claim, Fleming has
asserted that Eason was, at best, a marginal employee.
Accordingly, we reject Eason's assertion that he could not have
foreseen the need to introduce evidence suggesting that Eason was
actually a better EDP manager than Wilder, and that Wilder lacked
the requisite knowledge for the EDP position. In short, if Eason
intended to introduce Rowe's testimony on this matter, Rowe
should have been listed as a witness in compliance with Rule 16.
As for Eason's assertion that Rowe's testimony was offered
as rebuttal evidence, the record establishes that the actual
purpose of this testimony was to corroborate the testimony of
Eason. Specifically, in disputing Fleming's assertion that
Wilder was a better EDP manager than Eason, Eason testified that,

-- 19 of 21 --

20
between the time it was announced that the Columbus EDP would be
closed and the time Eason was terminated, Wilder conferred with
Eason on a regular basis concerning professional matters relating
to Wilder's job as EDP manager. According to Eason, these
questions demonstrated Wilder's lack of knowledge. In fact,
Eason expressly states in his brief that the substantive purpose
of introducing the Rowe testimony was to corroborate this
testimony by Eason. This court has held that rebuttal evidence
may not be used merely to continue the plaintiff's case-in-chief,
and such evidence is not admissible merely to remedy a defect in
the plaintiff's case-in-chief. See Cates, 928 F.2d at 685
("Rebuttal must be kept in perspective; it is not to be used as a
continuation of the case-in-chief."); Page, 673 F.2d at 139-40
(affirming district court's determination that party was
attempting to remedy a defect in their case-in-chief through
rebuttal testimony). Moreover, district court's have discretion
to exclude cumulative or duplicative evidence, and the district
court could have reasonably concluded that Rowe's testimony was
repetitive of Eason's. Jolley v. Welch, 904 F.2d 988, 992 (5th
Cir. 1990), cert. denied, __ U.S. __, 111 S. Ct. 769 (1991).
Accordingly, we conclude that the district court did not abuse
its discretion by refusing to admit Rowe's testimony.
C. Cumulative Error Assertion
Eason's final assertion is that "[t]he cumulative effect of
the trial court's evidentiary rulings was to unfairly limit
Eason's entire case to basically his own uncorroborated word

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15 FED. R. CIV. P. 61 ("The court at every stage of the
proceeding must disregard any error or defect in the proceedings
which does not affect the substantial rights of the parties.");
see Konce v. Quaker Safety Products & Manufacturing Co., 798 F.2d
700, 720 (5th Cir. 1986) ("Even if the district court's exclusion
of [evidence] were erroneous, the error would not require
reversal unless it affected the substantial rights of a party.");
Dartez v. Fibreboard Corp., 765 F.2d 456, 469 (5th Cir. 1985)
(evidentiary rulings by a trial judge may be treated as harmless
if the error does not affect the substantial rights of the
parties).
21
while at the same time allowing Fleming to put on all sorts of
corroborative and prejudicial evidence beyond its own word." We
disagree.
We have considered Eason's specific challenges to the
district court's evidentiary rulings and found no error, never
mind any reversible error--that is, error affecting Eason's
substantial rights.15 And the record establishes that Eason was
given the opportunity to fully develop his theory that Fleming
replaced him with Wilder based upon his age; the jury rejected
that theory. We conclude that, based upon our review of the
district court's evidentiary rulings and the record, the case
before is not one in which the cumulative effect of evidentiary
errors amounts to substantial prejudice.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
judgment in favor of Fleming.

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