Whittington, Sr. v. The Nordham Group, 2005 U.S. App. LEXIS 25685 (10th Cir., Nov. 29, 2005) (civil action for damages under Age Discrimination in Employment Act; plaintiff was 62 years old when terminated; plaintiff relied in part on evidence showing that a similarly-situated employee of age 57 was not terminated):
Nordam relies on cases from the Sixth, Seventh, and Eighth Circuits in arguing that we should adopt a bright-line rule that five years is an insignificant difference in age as a matter of law. None of those courts, however, applies such a bright-line rule. ...Cf., e.g., the recent case McEwen v. Tennessee Dept. of Safety, 173 S.W.3d 815; 2005 Tenn. App. LEXIS 157 (March 22, 2005) (dispute over forfeiture of personal property for illegal sale of controlled substances; Court of Appeals rejected owner's contention that evidence of facts warranting forfeiture was insufficient):
In our view, a definitive five-year rule is unjustified. ...
To the extent that other circuits establish a direct-evidence requirement when the age difference is less than five years, we choose not to follow them. The authorities are legion that circumstantial evidence can be every bit as compelling as direct evidence. See, e.g., Rogers v. Missouri P. R. Co., 352 U.S. 500, 508 n.17, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957) (citing The Robert Edwards, 19 U.S. (6 Wheat.) 187, 190, 5 L. Ed. 238 (1821)) ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."); United States v. Becker, 62 F.2d 1007, 1010 (2d Cir. 1933) (Hand, J.) ("The requirement [that the jury be separately charged as to circumstantial evidence] seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial."); 1A John Henry Wigmore, Evidence 26 (Peter Tillers rev. 1983) ("Wigmore's view that circumstantial evidence may be as persuasive and as compelling as testimonial evidence, and sometimes more so, is now generally accepted."). We decline to set rigid guidelines and will leave to the jury the evaluation of the evidence, subject as always to the oversight of the district court to refuse to permit unreasonable findings.
Direct and circumstantial evidence is equally relevant, NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.01, at 4-10 (4th ed. 2000), and equally probative. See, e.g., State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999); State v. Marsh, 278 Kan. 520, 102 P.3d 445, 450 (Kan. 2004); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 502 (Ohio 1991); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475, 481 (S.C. 2004); see also 1A JOHN H. WIGMORE, EVIDENCE § 26 (Tillers rev. 1983). Accordingly, litigants may prove any material fact by direct or circumstantial evidence or a combination of both, State v. Phillips, 138 S.W.3d 224 at 230; Brown v. Daly, 83 S.W.3d 153, 160 (Tenn. Ct. App. 2001), and in certain situations, circumstantial evidence may be more convincing than direct evidence. United States v. Robinson, 177 F.3d 643, 648 (7th Cir. 1999); Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 731 (Tenn. Ct. App. 2001).