Scott v. University of MS

Revised August 27, 1998

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 96-60385
____________

LINDA ANNE SCOTT,

Plaintiff - Appellee - Cross-Appellant,

versus

UNIVERSITY OF MISSISSIPPI,

Defendant - Appellant - Cross-Appellee.

Appeal from the United States District Court
For the Northern District of Mississippi

July 27, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The University of Mississippi (“University”) appeals the

judgment entered against it following a jury trial in this Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,

case brought by Linda Anne Scott. Holding that Scott failed to

adduce sufficient evidence from which a jury could reasonably infer

discrimination and, therefore, that the district court erred in

denying judgment as a matter of law to the University, we reverse.
 I

In 1991, the University of Mississippi School of Law (the “Law

School”) hired Linda Anne Scott as a reference librarian in the Law

School library. In 1993, when she was 54 years old, Scott applied

for the position of legal writing specialist, a ten-month

contractual, non-tenure-track position (the “1993 hiring”). To

make the hiring decision, the law school convened a four-member

committee, consisting of David E. Shipley, Professor and then Dean

of the Law School, Larry S. Bush, Associate Professor, Larry

Pittman, Assistant Professor, and Sylvia Robertshaw, Director of

the Law School’s legal writing program. From twenty-six total

applicants, the committee selected six finalists, ultimately

ranking Sandra Shelson first, Anne Gullick second, and Scott

third.1 At that time, Gullick was thirty-three years old. The

committee first offered the position to Shelson, who declined the

offer, and then to Gullick, who accepted it. After learning of the

decision to hire Gullick, Scott filed a charge of age

discrimination with the Equal Employment Opportunity Commission

(“EEOC”) and, one year later, in 1994, this law suit. In early

1995, when a legal writing specialist position again became

available, Scott applied for it (the “1995 hiring”). Of thirty-

three applicants, Scott was again one of the finalists, but she was

1
Scott does not challenge the committee’s ranking or
selection of Shelson, the only applicant who had experience
teaching legal writing.

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not offered the position.

Scott’s original complaint set forth a claim of age

discrimination for the 1993 hiring. She later amended her

complaint to include a claim of age discrimination for the 1995

hiring and a claim that her not being hired in 1995 was retaliation

for filing her age discrimination claim for the 1993 hiring (the

“second amended complaint”). Before trial, the University

submitted motions in limine (1) to exclude or limit the testimony

of Scott’s expert, Mark Baggett; (2) to limit Scott’s evidence of

retaliation to those claims of retaliation raised in her second

amended complaint; and (3) to exclude all testimony regarding age

discrimination in the 1995 hiring. The court allowed Baggett to

testify about the 1993 hiring, but, finding that Scott had not

timely supplemented Baggett’s opinions related to the 1995 hiring,

disallowed his testimony about the 1995 hiring. The court next

granted the University’s motion regarding evidence of retaliation,

limiting Scott to the charges of retaliation raised in her second

amended complaint. Finally, with respect to the 1995 hiring, the

court ruled that Scott could testify “in terms of retaliation but

not as a separate discrimination claim” because she had not

presented the age discrimination claim to the EEOC.

The court thus submitted two claims to the jury: (1) an age

discrimination claim for the 1993 hiring, and (2) a retaliation

claim for the 1995 hiring. The jury returned a verdict in favor of

Scott on the age discrimination claim, but in favor of the

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University on the retaliation claim. Before the court gave the

jury its instructions, the parties stipulated that the court would

determine the question of damages upon a verdict for Scott. After

the jury rendered its verdict, the court ordered the University to

hire Scott as a legal writing specialist at the next vacancy and

awarded her front and back pay. Both parties submitted motions for

judgment as a matter of law at the close of evidence and after the

verdict.

The University contends on appeal that the district court

erred (1) in concluding as a matter of law that it did not have

Eleventh Amendment immunity from suit under the ADEA; (2) in

denying its motion for judgment as a matter of law because the

evidence was insufficient to support Scott’s age discrimination

claim; and (3) in admitting Baggett’s testimony regarding the 1993

hiring. Scott cross-appeals the jury verdict on the retaliation

claim, raising evidentiary issues only. Specifically, she claims

that the court erroneously excluded Baggett’s testimony regarding

the 1995 hiring and evidence of retaliation after Scott filed her

second amended complaint. Scott also challenges the court’s

refusal to allow evidence about her claim of age discrimination in

the 1995 hiring. Both parties also appeal various issues related

to damages.2 Because the Eleventh Amendment, when applicable,

2
Because we reverse the judgment entered in favor of Scott
on the age discrimination claim, we do not reach the issue of
damages or the University’s evidentiary challenges.

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imposes a limitation on our jurisdiction, see Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 1122, 134 L.

Ed. 2d 252 (1996), we turn first to that issue.

II

The district court held, without explanation, that Congress

had abrogated the states’ Eleventh Amendment immunity from suit

under the ADEA and that Scott’s ADEA suit was therefore not barred

by the Eleventh Amendment. The University disagrees, arguing that

it is immune from suit under the ADEA.3

“The Eleventh Amendment provides immunity to states from suits

in federal court by private persons.” Coolbaugh v. Louisiana, 136

F.3d 430 (5th Cir. 1998), petition for cert. filed, 66 U.S.L.W.

3783 (U.S. May 28, 1998) (No. 97-1941). That immunity is, however,

not without limit: “A state may consent to be sued in federal

court, and in certain circumstances, Congress may abrogate the

3
Three circuits have addressed this issue since Seminole
Tribe. Two have held that Congress abrogated the states’ Eleventh
Amendment immunity from suit under ADEA. See Goshtasby v. Board of
Trustees of the Univ. of Ill., 141 F.3d 761 (7th Cir. 1998); Hurd
v. Pittsburgh State Univ., 109 F.3d 1540 (10th Cir. 1997). One has
reached the opposite result. See Kimel v. State of Fla. Bd. of
Regents, 139 F.3d 1426, 1433 (11th Cir. 1998) (concluding that
“nothing in the ADEA indicates a truly clear intent by Congress to
abrogate Eleventh Amendment immunity”). District courts have split
on the issue, with the minority reaching the opposite result of
Goshtasby and Hurd. See, e.g., MacPherson v. University of
Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996) (holding that
Congress did not abrogate states’ Eleventh Amendment immunity in
enacting the ADEA), aff’d, 139 F.3d 1426 (11th Cir. 1998).

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states’ sovereign immunity.”4 Goshtasby v. Board of Trustees of

the Univ. of Ill., 141 F.3d 761, 765 (7th Cir. 1998) (citing

Seminole Tribe, 517 U.S. at 63-66, 71 n.15, 116 S. Ct. at 1128,

1131 n.15; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct.

2666, 2671, 49 L. Ed. 2d 614 (1976)). In Seminole Tribe, the

Supreme Court outlined a two-part inquiry for determining whether

Congress has abrogated the states’ sovereign immunity from suit

under the Eleventh Amendment in enacting particular legislation:

“first, whether Congress ‘has unequivocally expressed its intent to

abrogate the immunity,’ and second, whether Congress has acted

‘pursuant to a valid exercise of constitutional power.’” Seminole

Tribe, 517 U.S. at 55, 116 S. Ct. at 1123 (internal citation

omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct.

423, 426, 88 L. Ed. 2d 371 (1985)). The University contends that

in extending the ADEA to the states, Congress satisfied neither of

these prongs.

A

Congress’s intent to abrogate state sovereign immunity “must

be obvious from ‘a clear legislative statement.’” Seminole Tribe,

517 U.S. at 55, 116 S. Ct. at 1123 (quoting Blatchford v. Native

Village of Noatak, 501 U.S. 775, 786, 111 S. Ct. 2578, 2584, 115 L.

Ed. 2d 686 (1991)). Congress may abrogate state sovereign immunity

4
Here, the University has not consented to suit.

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“only by making its intention unmistakably clear in the language of

the statute.” Id. at 56, 116 S. Ct. at 1123 (quoting Dellmuth v.

Muth, 491 U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989)). “A

general authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the Eleventh

Amendment.” Dellmuth v. Muth, 491 U.S. at 231, 109 S. Ct. at 2402,

105 L. Ed. 2d 181 (1989) (quoting Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 246, 105 S. Ct. 3142, 3149, 87 L. Ed. 2d 171

(1985)). Instead, both the text and structure of the statute must

“make[] it clear that the State is the [intended] defendant to the

suit.” Seminole Tribe, 517 U.S. at 57, 116 S. Ct. at 1124.

Congress is not required, however, to “explicitly reference to

state sovereign immunity or the Eleventh Amendment.” Dellmuth, 491

U.S. at 233, 109 S. Ct. at 2403 (Scalia, J., concurring).

As originally passed, the ADEA was enacted pursuant to the

Commerce Clause and applied only to private sector employers. Age

Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81

Stat. 602 (codified as amended at 29 U.S.C. § 621 et seq.). In

1974, Congress amended the ADEA (the “1974 Amendment”) to cover

state and local government employees by expanding the definition of

“employer” to include “a State or political subdivision of a State

and any agency or instrumentality of a State.”5 Fair Labor

5
At the same time, Congress also amended the definition of
“employee” to include “employees subject to the civil service laws
of a State government.” Fair Labor Standards Amendments of 1974,

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Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a)(2), 88

Stat. 55, 74 (codified as amended at 29 U.S.C. § 630(b)(2)). We

find that this reference to the “State” in the 1974 Amendment

evidences a clear statement that Congress intended to subject the

states to suit in federal court. See Ramirez v. Puerto Rico Fire

Serv., 715 F.2d 694, 701 (1st Cir. 1983) (“[T]he ADEA’s express

authorization for the maintenance of suit against state employers

comprises adequate evidence to demonstrate the congressional will

that Eleventh Amendment immunity be abrogated.”).

Further compelling evidence of Congress’s intent to abrogate

the states’ sovereign immunity is the ADEA’s enforcement provision

and its explicit incorporation of the enforcement provision of the

Fair Labor Standards Act (“FLSA”). The ADEA section, 29 U.S.C. §

626(b), provides that “[t]he provisions of this chapter shall be

enforced in accordance with the powers, remedies, and procedures

provided in . . . § 216 (except for subsection (a) thereof) . . .

and subsection (c) of this section.”6 Section 216(b) provides in

pertinent part that “[a]n action to recover the liability

prescribed . . . may be maintained against any employer (including

a public agency) in any Federal or State court of competent

Pub. L. No. 93-259, § 28(a)(4), 88 Stat. 55, 74 (codified as
amended at 29 U.S.C. § 630(f)).
6
Section 626(c)(1) provides: “Any person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes of
this chapter.”

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jurisdiction by any one or more employees.”7 29 U.S.C. § 216(b).

“Public agency” is defined in 29 U.S.C. § 203(x) as including “the

government of a State or political subdivision thereof.” See Hurd,

109 F.3d at 1544 n.3 (holding that Congress clearly intended to

abrogate state immunity for ADEA, reasoning, in part, that “the

[FLSA] enforcement provisions which the ADEA now references

specifically authorize ADEA suits in federal court”).

Accordingly, we hold that the language of § 626(b) and §

216(b) in conjunction with the specific extension of the ADEA to

state employers unequivocally expresses Congress’s intent that

state employers may be sued under the ADEA in federal courts. See

7
In Employees of Department of Public Health & Welfare v.
Department of Public Health & Welfare, Missouri, 411 U.S. 279, 93
S. Ct. 1614, 36 L. Ed. 2d 251 (1973), the Supreme Court affirmed
the district court’s dismissal of plaintiffs’ FLSA suit on the
grounds of Eleventh Amendment immunity. Following that decision,
Congress amended § 216(b) to its current form “to make it clear
that suits by public employees to recover unpaid wages and
liquidated damages under such section may be maintained in a
Federal or State court of competent jurisdiction” and to “overcome”
the Supreme Court’s decision in Employees. H.R. Rep. No.93-913, at
45 (1974). That section had previously read that an “[a]ction to
recover such liability may be maintained in any court of competent
jurisdiction.”
The University argues that Congress’s failure to make the same
change to the jurisdictional section of the ADEA that it did to §
216(b) of FLSA))even though the amendment to § 216(b) was part of
the same amendment that extended the ADEA to the states))implies
that Congress did not intend to abrogate states’ Eleventh Amendment
immunity from suit under the ADEA. Compare 29 U.S.C. § 216(b) with
29 U.S.C. § 626(c)(1). In making this argument, however, the
University fails to discuss § 216(b) of FLSA or, more importantly,
the ADEA’s explicit incorporation of that section in the ADEA
through § 626(b). We therefore find the University’s argument
unpersuasive.

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Goshtasby, 141 F.3d at 766 (concluding that “‘[u]nless Congress had

said in so many words that it was abrogating the states’ sovereign

immunity in age discrimination cases))and that degree of

explicitness is not required))it could not have made its desire to

override the states’ sovereign immunity clearer’”) (quoting

Davidson v. Board of Governors of State Colleges & Univs. for W.

Ill. Univ., 920 F.2d 441, 443 (7th Cir.1990)).

B

Having decided that Congress intended to abrogate the states’

Eleventh Amendment immunity in extending ADEA coverage to the

states, we next consider whether in doing so Congress acted

“pursuant to a valid exercise of power.”8 Seminole Tribe, 517 U.S.

at 55, 116 S. Ct. at 1123. In Seminole Tribe, the Court concluded

that Congress has constitutional authority to abrogate the Eleventh

Amendment immunity of the states through its powers under § 5 of

the Fourteenth Amendment, but not through its powers under the

Commerce Clause. Id. at 59, 66, 116 S. Ct. at 1125, 1128

(overruling Pennsylvania v. Union Gas, 491 U.S. 1, 109 S. Ct. 2273,

8
Neither the Supreme Court nor our circuit has decided
whether the 1974 Amendment may be upheld as a valid exercise of
Congress’s power under § 5 of the Fourteenth Amendment. The
Supreme Court specifically declined to decide this issue in EEOC v.
Wyoming, 460 U.S. 226, 243, 103 S. Ct. 1054, 1064, 75 L. Ed. 2d 18
(1983) (holding that “[t]he extension of the ADEA to cover the
state and local governments . . . was a valid exercise of Congress’
powers under the Commerce Clause,” and concluding that the Court
“need not decide whether it could also be upheld as an exercise of
Congress’ powers under § 5 of the Fourteenth Amendment”).

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105 L. Ed. 2d 1 (1989)). We must determine, therefore, whether the

extension of ADEA coverage to the states was a valid exercise of

Congress’s powers under § 5 of the Fourteenth Amendment.

At the outset, we reject the University’s contention that

Congress’s enforcement powers under § 5 are limited to suspect

classifications. Coolbaugh clearly establishes that Congress’s §

5 enforcement powers are not limited to suspect classifications.

See Coolbaugh, 136 F.3d at 433-34 (reaching this conclusion in

determining that Congress abrogated the states’ Eleventh Amendment

immunity in enacting the Americans with Disabilities Act (“ADA”));

see also Goshtasby, 141 F.3d at 770 (“The fact that age is not a

suspect qualification does not foreclose Congress from enforcing

the Equal Protection Clause through an enactment protecting against

arbitrary and invidious age discrimination.”).

Congress did not explicitly state that it was enacting the

1974 Amendment pursuant to § 5 of the Fourteenth Amendment. The

University accordingly argues that because Congress did not mention

the Fourteenth Amendment in the 1974 Amendment to the ADEA, it was

not acting pursuant to its § 5 enforcement powers. It is true

that, as the Supreme Court has warned, “we should not quickly

attribute to Congress an unstated intent to act under its authority

to enforce the Fourteenth Amendment.” Pennhurst State Sch. & Hosp.

v. Halderman, 451 U.S. 1, 16, 101 S. Ct. 1531, 1539, 67 L. Ed. 2d

694 (1981). However, contrary to the University’s assertion,

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Congress need not “recite the words ‘section 5’ or ‘Fourteenth

Amendment’ or ‘equal protection,’ for ‘[t]he . . .

constitutionality of action taken by Congress does not depend on

recitals of the power which it undertakes to exercise.” EEOC v.

Wyoming, 460 U.S. 226, 243 n.18, 103 S. Ct. 1054, 1064 n.18, 75 L.

Ed. 2d 18 (1983) (quoting Woods v. Cloyd W. Miller Co., 333 U.S.

138, 144, 68 S. Ct. 421, 424, 92 L. Ed. 2d 596 (1948)). Instead,

we look to the structure of the ADEA as well as its legislative

history in determining whether Congress relied on its § 5

enforcement power to enact the 1974 Amendment. See Goshtasby, 141

F.3d at 766-68; see also Coolbaugh, 136 F.3d at 435-37 (reviewing

Congressional findings and legislative history of ADA in

determining that Congress acted within its § 5 enforcement power in

enacting the ADA).

In City of Boerne v. Flores, ___U.S.___, 117 S. Ct. 2157,

2163, 138 L. Ed. 2d 624 (1997), the Supreme Court reiterated that

the Congress’s § 5 enforcement power encompasses legislation that

carries out the objectives of the Fourteenth Amendment. Moreover,

it clarified that “[l]egislation which deters or remedies

[Fourteenth Amendment] constitutional violations can fall within

the sweep of Congress’ enforcement power even if in the process it

prohibits conduct which is not itself unconstitutional and intrudes

into ‘legislative spheres of autonomy previously reserved to the

States.’” Id. (quoting Fitzpatrick, 427 U.S. at 455, 96 S. Ct. at

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2671). Thus, as the Flores Court reaffirmed, Congress has, under

its § 5 enforcement power, “the authority to both remedy and

prevent constitutional violations.” Coolbaugh, 136 F.3d at 434;

see also Flores, ___ U.S. at ___, 117 S. Ct. at 2164 (emphasizing

that Congress’s § 5 enforcement power, which the Court has

described as remedial, is limited to enforcing the provisions of

the Fourteenth Amendment).

In Coolbaugh, we concluded that “Congress is authorized to

adopt legislation that remedies or prevents unconstitutional

conduct, provided there is a ‘congruence and proportionality

between the injury to be prevented or remedied and the means

adopted to that end.’” Coolbaugh, 136 F.3d at 435 (quoting Flores,

___ U.S. at ___, 117 S. Ct. at 2164). We are guided in our

determination of this issue by the two-part proportionality inquiry

set out in Coolbaugh, where we explained that “[t]his

proportionality inquiry has two facets: the extent of the

threatened constitutional violations, and the scope of the steps

provided in the legislation to remedy or prevent such violations.”

Coolbaugh, 136 F.3d at 435. To determine “the extent of the

threatened constitutional violations”))the first prong of the

proportionality test))we examine Congress’s findings regarding the

evils it was addressing in passing the ADEA. As stated in the

ADEA’s preamble, Congress found that “in the face of rising

productivity and affluence, older workers find themselves

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disadvantaged in their efforts to retain employment, and especially

to regain employment when displaced from jobs.” 29 U.S.C. §

621(a)(1). It further found that “the setting of arbitrary age

limits regardless of potential for job performance has become a

common practice, and certain otherwise desirable practices may work

to the disadvantage of older persons.”9 29 U.S.C. § 621(a)(2).

Congress concluded that “[i]t is therefore the purpose of this Act

to promote employment of older persons based on their ability

rather than age; to prohibit arbitrary age discrimination in

employment; to help employers and workers find ways of meeting

problems arising from the impact of age on employment.” 29 U.S.C.

§ 621(b). In addition to these statements by Congress, the

Secretary of Labor reported the following, based on “the extensive

factfinding undertaken by the Executive Branch and Congress” prior

9
Congress also set forth the following additional
findings:

(3) the incidence of unemployment, especially
long-term unemployment with resultant
deterioration of skill, morale, and employer
acceptability is, relative to the younger
ages, high among older workers; their numbers
are great and growing; and their employment
problems grave;

(4) the existence in industries affecting
commerce, of arbitrary discrimination in
employment because of age, burdens commerce
and the free flow of goods in commerce.

29 U.S.C. § 621(a).

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to the enactment of the ADEA:

Although age discrimination rarely was based on the sort
of animus motivating some other forms of discrimination,
it was based in large part on stereotypes unsupported by
objective fact, and was often defended on grounds
different from its actual causes. . . . Moreover, the
available empirical evidence demonstrated that arbitrary
age lines were in fact generally unfounded and that, as
an overall matter, the performance of older workers was
at least as good as that of younger workers.

Wyoming, 460 U.S. at 231, 103 S. Ct. at 1057 (citing Report of the

Secretary of Labor, The Older American Worker: Age Discrimination

in Employment (1965)).

Although the legislative history of the 1974 Amendment is

somewhat sparse, it evidences that “Congress subsequently

established that these same conditions existed in the public

sector.” Goshtasby, 141 F.3d at 772 (citing S. Rep. No. 93-846, at

112 (1974); 118 Cong. Rec. 7,745 (1972) (remarks of Sen.

Bentsen)10). Congress indicated its purpose in passing the 1974

10
In introducing a prior, unsuccessful bill extending
coverage of the ADEA to federal, state, and local employees,
Senator Bentsen made the following remarks:

[T]here are strong indications that the hiring and firing
practices of government units discriminate against the
elderly, frequently pressuring them into retiring before
their productive days are over. . . . [W]hatever the
form, the pressures directed against older Government
employees constitute flagrant examples of age
discrimination in employment, and as such, they should be
outlawed. . . . Quite apart from any economic arguments,
the central issue is whether we want to give older
workers a feeling that they can still contribute, that
their age is no bar to a productive life. If we fail to
give our older citizens an equal chance in employment
decisions, we may add to the feeling of uselessness which

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Amendment by quoting the following remarks:

As the President said in his message of March 23, 1972,
supporting such an extension of coverage under the ADEA:
“Discrimination based on age))what some people call
‘age-ism’))can be as great an evil in our society as
discrimination based on race or religion or any other
characteristic which ignores a person’s unique status as
an individual and treats him or her as a member of some
arbitrarily-defined group. Especially in the employment
field, discrimination based on age is cruel and
self-defeating; it destroys the spirit of those who want
to work and it denies the Nation[] the contribution they
could make if they were working.”

H.R. Rep. No. 93-913, at 40-41 (1974). Senator Bentsen made the

following remarks regarding the 1974 Amendment: “The passage of

this measure insures that Government employees will be subject to

the same protections against arbitrary employment based on age as

are employees in the private sector.” 120 Cong. Rec. S8,768

(1974).

Giving these congressional findings the substantial deference

that we must, see Coolbaugh, 136 F.3d at 435, we find that the

legislative history of the ADEA supports Congress’s findings that

discrimination on the basis of age presented a serious and common

problem. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.

Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) (“Congress’ promulgation

of the ADEA was prompted by its concern that older workers were

being deprived of employment on the basis of inaccurate and

is so prevalent among older Americans today.

118 Cong. Rec. S7,745-46 (1972).

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stigmatizing stereotypes.”); EEOC v. Elrod, 674 F.2d 601, 604 (7th

Cir. 1982) (holding that the legislative history of the ADEA

supports a conclusion that the purpose of the ADEA was “to prohibit

arbitrary, discriminatory conduct that is the very essence of the

guarantee of ‘equal protection of the laws’ of the Fourteenth

Amendment”).

The remaining part of our inquiry is “whether the scope of the

[ADEA] is so ‘sweeping’ that the statute cannot be seen as

proportional to the evil Congress sought to address.” Coolbaugh,

136 F.3d at 437. In Goshtasby, the Seventh Circuit summarized the

scope of the ADEA as follows:

The purpose of the ADEA is “to prohibit arbitrary age
discrimination in employment.” The ADEA attempts to
redress and prevent discrimination and stereotyping of
older Americans by requiring that determinations be based
on merit. See Hazen Paper Co., 507 U.S. at 611, 113 S.
Ct. at 1706 (“The employer cannot rely on age as a proxy
for an employee’s remaining characteristics, such as
productivity, but must instead focus on those factors
directly.”). Thus, the ADEA requires personalized
determinations based on facts. If however, youth is a
bona fide occupational qualification that is reasonably
necessary to the normal operation of the particular
business, an employer may use age as a criterion for
employment decisions. . . . The ADEA, as applied by the
courts, ferrets out instances of arbitrary age
discrimination.

Goshtasby, 141 F.3d at 772 (citations omitted). As the Seventh

Circuit opined, “unlike the statute at issue in Flores, which

imposed ‘the most demanding test known to constitutional law,’ the

ADEA is narrowly drawn to protect older citizens from arbitrary and

capricious action by the state.” Id. We agree and, therefore,

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cannot conclude that the remedies imposed by the ADEA “are too

sweeping to survive the Flores proportionality test for legislation

that provides a remedy for unconstitutional discrimination or

prevents threatened unconstitutional actions.” Coolbaugh, 136 F.3d

at 438. We accordingly hold that the ADEA represents a valid

exercise of Congress’s § 5 enforcement power under the Fourteenth

Amendment. Thus, the University is not entitled to Eleventh

Amendment immunity from suit under the ADEA.

III

The University moved for judgment as a matter of law on

Scott’s claim of age discrimination at the close of Scott’s case,

at the close of all the evidence, and after the verdict. On

appeal, the University contends that the district court erred in

denying these motions because Scott presented insufficient evidence

that age was a determinative factor in its 1993 hiring decision.

A

We review a district court’s denial of a motion for judgment

as a matter of law de novo. See Travis v. Board of Regents of the

Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997), cert.

denied, ___U.S.___, 118 S. Ct. 1166, 140 L. Ed. 2d 176 (1998). “A

motion for judgment as a matter of law . . . in an action tried by

jury is a challenge to the legal sufficiency of the evidence

supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d

359, 367 (5th Cir. 1997), cert. denied, ___U.S.___, 118 S. Ct. 603,

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139 L. Ed. 2d 491 (1997) (internal quotations and citation

omitted). We test jury verdicts for sufficiency of the evidence

under the standards set forth in Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir. 1969) (en banc), overruled on other grounds,

Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)

(en banc), viewing all the evidence and drawing all reasonable

inferences in the light most favorable to the verdict. Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc)

(quoting Boeing, 411 F.2d at 374).

Under Boeing, there must be a conflict in substantial evidence

to create a jury question. Thus, a court should grant a motion for

judgment as a matter of law “not only when the non-movant presents

no evidence, but also when there is not a sufficient ‘conflict in

substantial evidence to create a jury question.’” Travis, 122 F.3d

at 263 (quoting Boeing, 411 F.2d at 374). “Substantial evidence is

defined as ‘evidence of such quality and weight that reasonable and

fair-minded men in the exercise of impartial judgment might reach

different conclusions.’” Rhodes, 75 F.3d at 993 (quoting Boeing,

411 F.2d at 374). “A mere scintilla of evidence is insufficient to

present a question for the jury.” Boeing, 411 F.2d at 374.

We apply the burden-shifting framework expounded by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.

-19-
Ed. 2d 207 (1981), to ADEA cases. See Rhodes, 75 F.3d at 992-93.

When a case has been fully tried on the merits, however, “we need

not parse the evidence into discrete segments corresponding to” the

different stages of the McDonnell Douglas-Burdine framework.

Travis, 122 F.3d at 263. Instead, applying Boeing’s sufficiency of

the evidence standards, we examine whether the plaintiff has met

her ultimate burden of proving that the employer discriminated

against her because of age. See id.

A plaintiff need not, however, provide direct evidence to

sustain a jury finding of discrimination. See Rhodes, 75 F.3d at

993. “Because direct evidence is rare in discrimination cases, a

plaintiff must ordinarily use circumstantial evidence to satisfy

her burden of persuasion.” Id. Circumstantial evidence must be

such, however, “as to allow a rational factfinder to make a

reasonable inference that age was a determinative reason for the

employment decision.” Id. Moreover, to give rise to such an

inference of discrimination, the employee must provide some

evidence, direct or circumstantial, to rebut each of the employer’s

proffered reasons and allow the jury to infer that the employer’s

explanation was a pretext for discrimination. See Swanson v.

General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir. 1997), cert.

denied, ___U.S.___, 118 S. Ct. 366, 139 L. Ed. 2d 284 (1997); EEOC

v. Texas Instruments Inc., 100 F.3d 1173, 1180 (5th Cir. 1996).

“The trier of fact may not simply choose to disbelieve the

-20-
employer’s explanation in the absence of any evidence showing why

it should do so.” Swanson, 110 F.3d at 1185.

Although “[i]n tandem with a prima facie case, the evidence

allowing rejection of the employer’s proffered reasons will often,

perhaps usually, permit a finding of discrimination without

additional evidence,” Rhodes, 75 F.3d at 994, it does not always

do so. See Travis, 122 F.3d at 263 (explaining that even if a

plaintiff’s evidence “permit[s] a tenuous inference of pretext and,

by extension, discrimination,” the evidence may “be insufficient as

a matter of law to support a finding of discrimination”). “[A]

jury issue will be presented and a plaintiff can avoid . . .

judgment as a matter of law if the evidence taken as a whole (1)

creates a fact issue as to whether each of the employer’s stated

reasons was what actually motivated the employer and (2) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complains.” Rhodes, 75 F.3d at 994. On

the other hand, an employer will be entitled to judgment as a

matter of law “if the evidence taken as a whole would not allow a

jury to infer that the actual reason for the [employer’s decision]

was discriminatory.” Rhodes, 75 F.3d at 994.

B

With these principles in mind, we turn to the case at hand.

Arguing that there is no evidence to support the jury’s verdict of

discrimination, the University characterizes this case as the

-21-
proverbial second-guessing of its decision that Gullick was more

qualified than Scott. The University consistently asserted

throughout trial))and continues to argue on appeal))that while Scott

was highly qualified for the legal writing specialist position, she

was simply not the most qualified. As the University has

repeatedly pointed out, and Scott has not disputed, the committee

ranked Scott third out of the twenty-six applicants for the 1993

hiring and would have offered the position to Scott if Gullick had

refused the offer and Scott’s reference check was satisfactorily

concluded.

Scott contends that she did in fact present sufficient

evidence of age discrimination. Scott first claims that the

University’s reasons for not hiring her were pretextual, thus

providing circumstantial evidence of discrimination. Scott further

argues that, apart from the evidence specifically refuting the

University’s reasons for not hiring her, she presented other direct

and circumstantial evidence showing that the University’s decision

was motivated by age. We address in turn the various components of

Scott’s evidence.

1

In support of its 1993 hiring decision, the University

produced several reasons why the committee ranked Gullick second

and Scott third. At trial, three of the four members of the 1993

hiring committee testified as to their reasons for ranking Gullick

over Scott. All three emphasized Gullick’s four and a half years

-22-
of federal district court clerkship experience, viewing that

favorably over Scott’s one-year Mississippi Supreme Court justice

clerkship. Bush in particular valued this credential, considering

a federal clerkship to be the “best apprenticeship you can have for

teaching law at any level.” The members also cited Gullick’s very

favorable letters of recommendation; Bush noted that the three

judges for whom Gullick had worked had given her strong letters of

recommendation. The committee members considered the quality and

extent of Gullick’s legal writing experience to be superior to

Scott’s, a criterion they all considered crucial for the position.

In addition to the writing experience she gained while clerking,

they emphasized her experience writing briefs on a contract basis

for attorneys in Memphis. Pittman noted that Gullick had written

and argued briefs during this time, even arguing at least one

before the Sixth Circuit. Finally, although they all thought Scott

interviewed well, they believed Gullick’s interview to be stronger

than Scott’s. Testifying that Gullick came across as “very

enthusiastic” and “forceful” in her interview, Pittman viewed her

interview and work experience so favorably that at one time he

considered ranking Gullick over even Shelson. Although Bush noted

that Scott gave one of the better interviews of the finalists, he

praised Gullick as being very outgoing and very assertive,

resulting in a strong interview. While the committee members

viewed Scott’s Ph.D. and prior college-level teaching experience

very positively, considering the latter to be much more extensive

-23-
than Gullick’s two years of high school teaching, they found these

other reasons to warrant ranking Gullick one notch above Scott.

Several of these reasons were included in the Affirmative

Action report the Law School filed with the University’s

Affirmative Action office. The report, which was completed and

submitted after the initial ranking, explained first why Shelson

was selected. The report then explained why other applicants were

deselected.11 With respect to Gullick, the report stated:

Ms. Gullick had significant legal writing experience both
as a law clerk for four years at the trial court level
and as a practicing attorney, but she had no significant
teaching experience. Ms. Gullick has written briefs and
has argued at least one federal appellate case. She had
a strong interview, but lacks significant teaching
experience.

11
Scott argues that the reasons provided by the University
other than in the Affirmative Action report are highly suspect,
post hoc rationalizations. This contention is easily rejected.
The Affirmative Action report undisputedly describes the reasons
Shelson was selected over the other candidates. Moreover, Scott
presents no evidence that the explanations given by the committee
members for ranking Gullick second and Scott third were not the
members’ legitimate reasons at the time of their decision. See
EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1445-46
(5th Cir. 1995) (rejecting EEOC’s argument that the standards used
by the employer in making its promotion decision were post hoc
rationalizations: “[W]e decline to substitute our judgment for the
employer in evaluating what types of experience are most valuable
for an employee in the new position in the absence of proof that
the standards were not consistently applied or were so irrational
or idiosyncratic as to suggest a cover-up.”); cf. Lloyd v. Georgia
Gulf Corp., 961 F.2d 1190, 1195 & n.7 (5th Cir. 1992) (explaining
that jury could reasonably infer that employer’s explanation of
poor performance was “‘an after the fact inspiration triggered by
the necessity of fending off litigation” when no supporting
documentation of poor performance existed in employee’s personnel
file) (quoting Walther v. Lone Star Gas Co., 952 F.2d 119, 124 (5th
Cir. 1992)).

-24-
With respect to Scott, the report stated:

Although Ms. Scott has a substantial amount of English
teaching experience and one year of clerking at the
appellate level, she had no teaching experience in legal
writing. Moreover, Ms. Scott has never worked in the
class room with collaborative groups, which is a
significant part of the pedagogy of the Legal Writing
Program.

Citing all of these reasons, the University adamantly contends that

Scott simply presented no evidence showing that these sound,

professional reasons, or the committee’s reliance on them, were

false, let alone a pretext for age discrimination.

Scott disagrees, claiming that she established a genuine issue

for trial about the legitimacy of each of the nondiscriminatory

reasons offered by the University for ranking Gullick over her.

She first challenges the Affirmative Action report’s statement that

Scott was deselected because she had neither taught legal writing

nor worked with collaborative groups. Scott claims that these

reasons are pretexts for discrimination because Gullick had not

taught legal writing either, Robertshaw did not even ask Gullick

about collaborative groups, and Robertshaw testified that

collaborative groups were not that important and that there was

nothing particularly difficult about them. The University responds

by pointing out that the Affirmative Action report to which Scott

refers sets forth the University’s reasons why Shelson was selected

and the other applicants were deselected,12 not why Gullick was

12
Shelson was the only candidate who had previously taught
legal writing, and, according to the report (as well as the

-25-
selected and Scott deselected))a fact that Scott does not dispute.

Thus, the University argues, Scott does not effectively refute its

reasons for preferring Gullick over Scott and, in fact, merely

restates the reasons why it preferred Shelson over Scott and

Gullick. We agree.

Scott next challenges the University’s explanation that

Gullick had more extensive legal writing and research experience.

She attempts to rebut this explanation by pointing out that she was

teaching legal research to first-year law students at the time of

the 1993 hiring and that she had more than ten years experience

teaching college-level English. She also argues that the

committee’s ranking of Gullick over Scott based on writing skills

could not be true because the committee made its initial ranking

without the benefit of Scott’s writing samples.

At the outset, we note that neither the Affirmative Action

report nor the committee members’ testimony indicates that the

committee members’ testimony), this was the primary reason the
committee ranked Shelson over Gullick and Scott. The record
indicates that the fact that Scott had no experience teaching with
collaborative groups was relevant to the comparison of Scott to
Shelson. Robertshaw explained at trial that she asked Scott about
her experience with collaborative groups to determine the relevance
of her prior teaching experience to the legal writing position.
Furthermore, nothing in the record indicates that any of the
committee members ever contended that Gullick’s teaching experience
was a plus factor for Gullick. In fact, Robertshaw explained that
she did not ask Gullick about collaborative group teaching because
Gullick’s only experience teaching was at the high school level,
something which all of the committee members testified weighed
against her when compared to Scott.

-26-
committee cited Gullick’s research skills as a reason for ranking

Gullick over Scott. Thus, any attempt Scott makes to rebut such a

reason is irrelevant. The University did, of course, repeatedly

mention legal writing experience as a basis for ranking Gullick

over Scott. Scott’s first two reasons here))her experience

teaching English and her experience teaching legal research))do

not, however, cast suspicion on the committee’s opinion that

Gullick’s legal writing experience was superior to Scott’s

experience and instead present only a mismatched comparison.

With respect to the writing samples, the record indicates that

Scott submitted her writing samples to the committee shortly after

its June 14th meeting, at which time the committee ranked the

finalists.13 The relevancy of this fact to the committee’s stated

13
Bush, one of the committee members, was responsible for
informing the interviewees that they had been selected for an
interview. He was to tell them at the time he scheduled their
interviews that they needed to provide the committee with writing
samples when they arrived for their interview. Bush testified that
he forgot to tell Scott to bring a writing sample to the interview.
He explained that when he invited the other candidates, he did so
on the telephone from his office, where he referred to a list of
things he wanted to tell the candidates; when he informed Scott of
her selection for an interview, however, he walked downstairs to
the library and did not have his list for reference. Scott
testified that she was asked for her writing samples at her
interview, which was on a Thursday, but was not able to give them
to the committee until Monday because she had to go home to
Gulfport to retrieve them.
The committee met on the morning of that Monday, June 14th.
The record indicates that while the rankings made at that meeting
were subject to certain contingencies, including, among other
things, reference checks of the top two candidates, these rankings
were approved by the Dean and remain unchanged as a result of the
reference checks and the resolution of the other contingencies.

-27-
reasons for its decision is, however, not evident. The reason

offered by the University for ranking Gullick over Scott was the

quality of Gullick’s legal writing experience as compared to

Scott’s. The record indicates that the committee members based

their opinions of Gullick’s legal writing experience on Gullick’s

federal clerkship experience, her subsequent brief-writing work,

and her letters of recommendation))none of which Scott is able to

rebut. Moreover, the only trial testimony elicited of the

committee members regarding their consideration of writing samples

was Robertshaw’s testimony that although she reviewed some of

Gullick’s writing samples, she read Scott’s writing samples at

about the same time she read Gullick’s.14 For these reasons, we

conclude that Scott has failed to present evidence rebutting the

University’s reliance on Gullick’s legal writing experience in

ranking Gullick over Scott.

Scott is unable to present evidence refuting any of the

University’s other reasons for ranking Gullick over Scott. Most

notably, she does not attempt to refute the committee’s reliance on

Gullick’s federal clerkship experience, which was arguably the

committee members’ primary reason for ranking Gullick over Scott,

other than by introducing statements that a Mississippi Supreme

14
With respect to her opinion of the writing samples,
Robertshaw testified that while Scott’s writing samples were
“pretty good,” they did not affect her opinion of Scott’s ranking
in relation to Gullick, who submitted a brief that Gullick wrote
for an appeal to the Sixth Circuit and that Robertshaw considered
“very outstanding.”

-28-
Court clerkship is comparable to a federal clerkship. In fact, in

her brief, Scott concedes that Gullick possessed this qualification

and she did not. “Where the plaintiff has offered no evidence to

rebut the employer’s facially benign explanations, no inference of

discrimination can be drawn.” EEOC v. Louisiana Office of

Community Servs., 47 F.3d 1438, 1447 (5th Cir. 1995); see also id.

at 1448 (“[T]he only evidence [of discriminatory intent] is the

EEOC’s own speculation that age motivated the decision not to

promote Fisher. We have consistently held that an employee’s

subjective belief of discrimination, however genuine, cannot be the

basis of judicial relief.”).

Despite this lack of evidence rebutting the University’s

proffered legitimate, nondiscriminatory reasons for ranking Gullick

second and her third, Scott claims that not only was she better

qualified than Gullick, she was clearly better qualified.

Specifically, she claims that the jury could have found that her

Ph.D. in English, Masters in Library Science, college teaching

experience, Mississippi Supreme Court clerkship, and experience

teaching legal research to law students compared to Gullick’s B.A.

in English, federal clerkship, and two years teaching high school

made Scott so clearly better qualified that the University’s

reasons for not selecting Scott must have been pretexts for age

discrimination.

We have held that “a plaintiff can take his case to a jury

-29-
with evidence that he was clearly better qualified than younger

employees” who were selected for the position at issue.15 Walther

v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992) (emphasis

added); see also Louisiana Office of Community Servs., 47 F.3d at

1444 (“A factfinder can infer pretext if it finds that the employee

was ‘clearly better qualified’ (as opposed to merely better or as

qualified) than the employees who are selected.”). “However, this

evidence must be more than merely subjective and speculative.”

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).

“To establish a fact question as to relative qualifications, a

plaintiff must provide sufficiently specific reasons for his

opinion; mere subjective speculation will not suffice.” Id.

Moreover, in pursuing this inquiry, we recognize that “the judicial

system is not as well suited by training and experience to evaluate

qualifications . . . in other disciplines as are those persons who

have trained and worked for years in that field of endeavor for

which the applications under consideration are being evaluated.”

Louisiana Office of Community Servs., 47 F.3d at 1445. Thus,

15
In Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 n.8
(5th Cir. 1993), we questioned whether this proposition remains
viable in light of the Supreme Court’s decision in St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993) because “[a]rguably, evidence showing the plaintiff was
‘clearly better qualified’ establishes only that the employer’s
proffered reasons were pretextual and not that they were a pretext
for age discrimination, as required by St. Mary’s.” Because we
conclude that Scott has failed to present evidence that she was
clearly better qualified than Gullick, we need not reach that
question today.

-30-
“[u]nless disparities in curricula vitae are so apparent as

virtually to jump off the page and slap us in the face, we judges

should be reluctant to substitute our views for those of the

individuals charged with the evaluation duty by virtue of their own

years of experience and expertise in the field in question.” Id.

To support her assertion that she was clearly better qualified

than Gullick, Scott presents her testimony and the testimony of

Mark Baggett, her expert.16 Scott testified that she had a Ph.D.

and a Masters degree in English in addition to her law degree,

while Gullick had only a law degree. She cited her extensive

teaching experience compared to Gullick’s two years of teaching

high school. She also compared her Mississippi Supreme Court

clerkship to Gullick’s federal clerkship, concluding that her

clerking experience was superior to Gullick’s. She also noted that

one of the two professors as well as a group of students who gave

their opinions of the candidates to the committee ranked her one

ahead of Gullick. (The other professor listed both Gullick and

Scott in his top three, but did not rank them within that group.).

Scott also points to the testimony of her expert, Mark

Baggett, who teaches English literature and composition in the

English department as well as legal writing and research in the law

school at Cumberland University. Baggett stated that Scott was

16
On appeal, the University challenges the admission of
Baggett’s testimony regarding the 1993 hiring on three grounds.
Because we reverse the judgment entered in favor of Scott on the
age discrimination claim, we need not consider these arguments.

-31-
“clearly better qualified” for the legal writing position than

Gullick. He based this decision primarily on Scott’s Ph.D. in

English because it requires a dissertation, which he described as

a very rigorous writing project, and involves teaching. He also

cited her experience in private practice, her degree in Library

Science, and her job as reference librarian at the Law School’s

library as further supporting his opinion. Finally, Baggett

testified that a State Supreme Court clerkship and a federal

clerkship are generally comparable in the extent of legal research

and writing.

The University contends that Scott’s evidence, including her

and Baggett’s testimony, did nothing more than present a difference

of opinion as to whether Scott or Gullick was better qualified for

the job and, therefore, did not establish either directly or

through inference that the University intentionally refused to hire

Scott because of her age. We agree. Their testimony, as well as

our review of the resumes and other documents included in the

record, is insufficient evidence that Scott was clearly better

qualified and, therefore, does not suffice to present a jury

question as to pretext.17 Scott’s comparison of her qualifications

17
We note that Baggett’s statement that Scott was “clearly
better qualified” for the legal writing position cannot by itself
be sufficient to create a jury question on discrimination; like
Scott, Baggett must present specific reasons supporting this
conclusion. Cf. Nichols, 81 F.3d at 42 (“To establish a fact
question as to relative qualifications, a plaintiff must provide
sufficiently specific reasons for his opinion.”).

-32-
with Gullick’s simply does not reveal any “glaring distinction”

that would reasonably support a conclusion that she was clearly

better qualified than Gullick. See Odom v. Frank, 3 F.3d 839, 846

(5th Cir. 1993) (“Their respective statements of ‘specific

qualifications’ are quite different, but neither is particularly

more impressive than the other. A careful and objective comparison

of Price’s and Odom’s applications reveals no glaring distinction

that would support a finding that Odom was ‘clearly better

qualified than [Price] for the . . . position.’”). We note first

that in comparing her qualifications to Gullick’s, Scott

understates Gullick’s qualifications. She refers to Gullick’s four

and a half years of federal clerkship experience merely as a

“federal clerkship” and does not even mention, for example,

Gullick’s other legal writing experience. Scott’s teaching

experience is, of course, much more extensive than Gullick’s. On

the other hand, the record reveals that Gullick had more extensive

legal writing experience; for example, the record indicates that

Gullick had significant brief-writing experience, while Scott

testified that she had written only one brief other than the briefs

she had written for this lawsuit. Furthermore, like Scott’s,

Baggett’s comparison of Scott’s qualifications with Gullick’s

simply does not reveal any “glaring distinction” that would

reasonably support a conclusion that Scott was clearly better

qualified or, more importantly, that the University discriminated

-33-
against Scott on the basis of age.18 In fact, his testimony

undermined Scott’s in one respect: while she claimed that her

clerkship was superior to Gullick’s, Baggett testified that they

were comparable.

In sum, we conclude that Scott’s qualifications are not “so

superior” to those of Gullick’s “to allow an inference of pretext.”

Louisiana Office of Community Servs., 47 F.3d at 1445. We see no

“disparities in curricula vitae [that] are so apparent as virtually

to jump off the page and slap us in the face.” Id.; see also Odom

v. Frank, 3 F.3d 839, 847 (5th Cir. 1993) (“We find that neither

singly nor collectively do Odom’s qualifications leap from the

record and cry out to all who would listen that he was vastly))or

even clearly))more qualified for the subject job than was Price.”).

Disagreements over which applicant is more qualified are employment

decisions in which we will not engage in the practice of second

guessing. See Bienkowski v. American Airlines, Inc., 851 F.2d

1503, 1507-08 (5th Cir. 1988) (“The ADEA was not intended to be a

18
This conclusion is bolstered by the fact that the
district court qualified Baggett as an expert only in legal
writing, explicitly limiting Baggett to testifying about legal
writing ability (specifically, Scott’s legal writing ability as
compared to Gullick’s), and not about hiring decisions. Thus, as
the district court expressly ruled, Baggett was not an expert on
hiring decisions. Nor could he be in this specific instance. He
had not, for example, met or interviewed any of the candidates or
read the letters of recommendation submitted by the applicants to
the committee. His opinion was based mainly on Scott’s and
Gullick’s resumes and writing samples, including the writing
samples submitted to the committee as well as two documents Scott
prepared for this litigation.

-34-
vehicle for judicial second-guessing of employment decisions, nor

was it intended to transform the courts into personnel managers.”);

Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.

1988) (“[W]e do not sit as a super-personnel department that

reexamines an entity’s business decisions.”). Even if evidence

suggests that a decision was wrong, we will not substitute our

judgment as to who was more qualified for the employer’s business

judgment. See Bienkowski, 851 F.2d at 1508 (“The ADEA cannot

protect older workers from erroneous or even arbitrary personnel

decisions, but only from decisions which are unlawfully

motivated”). Such disputes do not support a finding of

discrimination and have no place in front of a jury.

2

Scott next claims that statistical evidence shows that the Law

School had a policy of not hiring tenure-track professors or legal

writing teachers over the age of forty. She specifically relies on

the fact that the five legal writing teachers hired by the

University’s law school during the relevant period were all under

forty years old. She also claims that from 1986 through 1995, few

professors over the age of forty were hired, and the few who were

hired were significantly younger than Scott. In denying the

University’s first partial summary judgment motion, the district

court referred to this evidence, noting that “it may be significant

that the law school has hired only one person in the over-forty age

-35-
bracket since 1986 as a regular full-time professor” and that

“[t]hose in the protected age group who have been employed were

hired as ‘visiting professor’ or ‘adjunct professor’ or ‘professor

emeritus’ or ‘acting professor.’” The University challenges

Scott’s proposed evidence of a discriminatory hiring policy first

by arguing that Scott ignores evidence in the record that refutes

her data and second by claiming that her assertion of a

discriminatory hiring policy is flawed as a statistical matter.

Assuming arguendo that Scott’s data accurately states the ages

of professors and legal writing teachers hired during the stated

periods, we nonetheless agree with the University that Scott’s

asserted statistical evidence is fatally flawed and does not

support an inference of age discrimination. We have previously

stated that while statistical evidence “may be probative of pretext

in limited circumstances,” it “usually cannot rebut the employer’s

articulated nondiscriminatory reasons.” Texas Instruments, 100

F.3d at 1184-85 (“[P]roof of pretext, hence of discriminatory

intent, by statistics alone, would be a challenging endeavor.”)

(citing Walther, 977 F.2d at 162); LeBlanc v. Great Am. Ins. Co.,

6 F.3d 836, 848 (1st Cir. 1993) (“[A] company’s overall employment

statistics will have little direct bearing on the specific

intentions of the employer when dismissing a particular

individual.”). This insufficiency is especially true here because,

as the University argues, Scott failed to compare the persons hired

-36-
to the pool of qualified applicants when she presented this

purported statistical evidence of discriminatory hiring practice.19

See Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1286-87 (5th

Cir. 1994) (“Where plaintiffs use statistical evidence to challenge

an employer’s hiring practices, that evidence, to be probative of

discriminatory intent, must compare the relevant portion of the

employer’s work force with the qualified population in the relevant

labor market.”); id. at 1287 (“Actual applicant flow figures are

the preferred method by which to measure an employer’s hiring

practices and performance.”). Such an omission renders her

evidence invalid for purposes of rebutting the University’s reasons

for ranking Gullick over Scott and for raising an inference of

discrimination.20

3

19
We note that Scott does not argue that she attempted to
obtain this information or that she was prevented from doing so.
20
As the University argues, without such information,
nothing prevents us from surmising that Scott was the only or one
of the very few applicants for the five legal writing positions who
was over the age of forty. And this flaw is no less germane to her
data regarding the tenure-track professors who were hired during
the time period referred to by Scott. In fact, without information
regarding the applicant pool, one plausible explanation of Scott’s
hiring data))and perhaps the only explanation appearing in the
record))is that provided by the University’s witness, Carolyn
Staton, the University’s Associate Vice Chancellor for Academic
Affairs and former Dean of the Law School, who testified that “the
problem you might see with certain people who are coming in the
tenure trac[k] jobs being younger is that people who have been in
the profession a long time don’t like to take the fifty, sixty,
seventy thousand dollar cut that they would have to take to become
a law teacher.”

-37-
 At oral argument, Scott made much of the fact that Robertshaw

wrote down on her copy of Scott’s resume the dates that Scott

received her graduate degrees from the University of Mississippi,

arguing that this fact allows for a reasonable inference of age

discrimination. Scott claimed that the effect of this action was

exacerbated because Robertshaw dominated the search committee.

Robertshaw explained at trial that she asked Scott about these

dates to determine the relevancy of Scott’s course work to the

legal writing teaching position))she “wanted to find out when

[Scott] had done her graduate work in English because the use of

multiple drafts and collaborative groups and the things that we

used in the [legal writing] program really didn’t develop until

about the early to the mid 80s.” In denying the University’s

motion for judgment as a matter of law, the district court relied

on Robertshaw’s notation of these dates, finding that Robertshaw’s

testimony about her concerns of when Scott received her advanced

English degrees “clearly raised the specter of age.” The court

further found that “the jury was entitled to believe Scott’s

argument that Robertshaw’s position as director of the legal

writing program would carry more weight with the other members of

the selection committee.”

The University argues that Robertshaw’s noting of the dates

Scott attended graduate school is no evidence at all of age

discrimination. The University points out that Robertshaw’s

explanation for asking Scott about the dates remained undisputed in

-38-
the record. It emphasizes that age was never mentioned during any

of the committee meetings and that Robertshaw did not relate either

the graduation dates or her conversation with Scott about

collaborative groups methods to the other members. Finally, the

University counters Scott’s argument that Robertshaw dominated the

search committee by stressing that the search committee was

composed of the dean of the law school, a tenured professor, and an

associate, tenure-track professor in addition to Robertshaw and

that the trial testimony of the other committee members revealed

that they felt that the hiring decision was just as important to

them as to Robertshaw.

At first blush, Robertshaw’s act of writing down the dates

Scott received her graduate degrees appears, as the district court

stated, to raise the specter of age. On further inspection,

however, we disagree with the district court. Viewing this

evidence in the light most favorable to Scott, perhaps the most the

jury could reasonably infer was that Robertshaw noted Scott’s

graduation dates on her resume as a rough indication of Scott’s

age. However, even if Robertshaw had noted Scott’s actual age on

her resume, this single notation, without other evidence of its

import, is insufficient to support a reasonable inference of

discrimination. See Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d

1498, 1504 (10th Cir. 1996) (holding that a reasonable jury could

have concluded that age played determinative role in hiring process

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where employer wrote down plaintiff’s and other job applicants’

ages, “sometimes underlining, circling or calculating ages on the

applicants’ resumes or other relevant documents,” and “admit[ted]

to underlining and circling things he thought were ‘important’ or

‘relevant’ about an applicant”). As the Eighth Circuit concluded

in a case that the University cites and we find persuasive on this

point:

Nor do we believe that the fact that the district manager
knew Mr. Nelson’s age could furnish the basis for a
reasonable inference that his age was a basis for his
termination. A fact finder may not simply convert a
condition that is necessary for a finding of liability
(here, knowledge of a plaintiff’s age) into one that is
sufficient for such a finding.

Nelson v. J.C. Penny Co., Inc., 75 F.3d 343, 345 (8th Cir.), cert.

denied, - U.S. -, 117 S. Ct. 61, - L. Ed. 2d - (1996) (vacating the

jury verdict for plaintiff Nelson on his age discrimination claim

and remanding for entry of judgment in favor of the employer); see

also May v. Shuttle, Inc., 129 F.3d 165, 173 (D.C. Cir. 1998),

cert. denied, - U.S. -, 118 S. Ct. 2320, 141 L. Ed. 2d 695 (1998)

(explaining that supervisor’s knowledge of workers’ ages and how

much it cost the company to keep them employed was insufficient to

show unlawful motivation); Jang v. Biltmore Tire Co., 797 F.2d 486,

489 n.3 (7th Cir. 1986) (concluding that testimony that supervisor

asked plaintiff about his age “falls far short of constituting

direct proof of age discrimination”). Scott does not respond in

her brief to the arguments or cases advanced by the University,

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and, unearthing no cases suggesting an alternative legal

significance of Robertshaw’s actions, we conclude that Robertshaw’s

writing down these dates is insufficient, without more, to support

a finding that age was a motivating factor in the University’s

decision to hire Gullick over Scott.

4

Finally, Scott asserted at oral argument that the jury was

entitled to infer discrimination from the evidence that she was

treated differently from the other applicants in that the committee

did not call her references, did not tell her to bring a writing

sample to her interview, and did not take her to lunch when she was

interviewed. We can reject this last point in short order because

the record reveals that Scott was not the only interviewee not

taken out to lunch: Bush testified that the committee did not take

Duffy Graham, the last candidate interviewed by the committee, out

to lunch. See Swanson, 110 F.3d at 1187 (holding that plaintiff

had “presented no competent evidence from which the jury could

conclude . . . that illegal race discrimination motivated

[employer’s] decision to deny” plaintiff an in-building parking

space where, among other things, white managers of his same level

were not provided a parking space). While Scott’s other two

statements are undisputed in the record, the following facts are

also undisputed. After ranking the candidates, Shelson first,

Gullick second, and Scott third, the committee decided that only

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the top two candidates’ references would be called. After Shelson

declined the position, the Law School offered it to Gullick. The

record indicates that had Gullick refused the offer, the committee

would have checked Scott’s references and offered Scott the

position if the reference check was satisfactory. Under these

circumstances, the fact that the committee did not call Scott’s

references cannot support a reasonable inference of discrimination.

With respect to the writing samples, we note again that while

Scott was not informed))as were the other interviewees))at the time

her interview was scheduled that she needed to bring her samples to

the interview, she was told during her interview that she needed to

submit writing samples to the committee.21 While the committee’s

failure to tell Scott to provide writing samples until the date of

her interview may support a reasonable inference that the committee

was less than conscientious about her application, it does not

represent even a mere scintilla of evidence of age discrimination.

See Rhodes, 75 F.3d at 994 (“[I]f the evidence put forth by the

plaintiff to establish the prima facie case and to rebut the

employer’s reasons is not substantial, a jury cannot reasonably

21
As we stated previously, Scott’s interview was on a
Thursday, and the committee meeting was on the following Monday.
As we also noted previously, the only trial testimony regarding the
committee’s consideration of writing samples was Robertshaw’s
testimony that she read Scott’s writing samples at about the same
time she read Gullick’s and they did not affect her opinion of the
candidates’ relative rankings. No other committee member was asked
or testified about the effect of the delay in the committee’s
receipt of Scott’s writing samples.

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infer discriminatory intent.”).

For all of the foregoing reasons, we conclude that Scott’s

evidence, taken as a whole, is insufficient to create a fact issue

as to whether each of the University’s stated reasons was what

actually motivated it and to create a reasonable inference that age

was a motivating factor in the University’s decision. See Rhodes,

75 F.3d at 994; see also Louisiana Office of Community Servs., 47

F.3d at 1448 (“While we or the jury might have made a different

employment decision, we should not substitute our judgment of an

employee’s qualifications for the employer’s in the absence of

proof that the employer’s nondiscriminatory reasons are not

genuine. We are persuaded that this is precisely what the jury did

here.”); Texas Instruments, 100 F.3d at 1186-87 (rejecting the

EEOC’s argument that the district court should not have “discounted

each of its type of evidence and ignored that, taken together, all

of the agency’s evidence bespoke pretext sufficiently to warrant a

jury trial” and instead opining that “‘[e]vidence’ that does not

imply pretext taken alone does not do so when cumulated”). We

accordingly hold that the district court erred in denying the

University’s motion for judgment as a matter of law.

IV

Scott raises three evidentiary issues on appeal. First, she

claims that the court erroneously excluded Baggett’s testimony

regarding the 1995 hiring. Second, she argues that the court

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erroneously excluded evidence of retaliation after Scott filed her

second amended complaint. Finally, Scott contends that the court

erred in excluding evidence about her claim of age discrimination

in the 1995 hiring. We address each of these rulings in turn.

A

Scott argues that she substantially complied with the

discovery rules with respect to Baggett’s testimony about the 1995

hiring and, therefore, the district court’s ruling excluding this

testimony on the grounds of failure to timely supplement was error.

Scott, who submitted Baggett’s affidavit regarding the 1995 hiring

less than six weeks before trial in a response to the University’s

partial summary judgment motion, does not dispute that she failed

to meet the applicable discovery deadlines. Instead, she contends

that she supplemented discovery as soon as practicable after the

University made available the documents pertaining to the 1995

hiring on which Baggett based his opinion. The record reveals,

however, that prior to that Scott had not informed the University

that Baggett would be testifying regarding the 1995 hiring. We

therefore hold that the district court did not abuse its discretion

in excluding this testimony. See Hester v. CSX Transp., Inc., 61

F.3d 382, 388 n.11 (5th Cir. 1995); see also Alldread v. City of

Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993) (explaining that the

district court has wide discretion in determining whether to

exclude expert testimony due to failure to comply with discovery

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requirements).

B

Scott’s second amended complaint alleged certain acts of

retaliation by the University. Less than three weeks before trial,

Scott informed the University that she planned to present

additional evidence of retaliation arising out of her working

environment at the library. She sought to amend her complaint to

add these charges of retaliation. In response to the University’s

subsequent motion in limine on this point, the district court

excluded all evidence of retaliation occurring after Scott filed

her second amended complaint.

Scott states in her brief that she “was severely prejudiced by

denial of an opportunity to put on a substantial part of her proof

of retaliatory conduct.” In her reply brief, she appears to claim

that the University had sufficient notice of at least some of these

additional alleged acts of retaliation because she had included

them in her response to the University’s partial summary judgment

motion, which she filed approximately five weeks before trial. She

also suggests that she did not need to amend her complaint to add

charges of retaliation because the retaliation in her work

environment at the library continued to the day of trial, arguing

that “amending the complaint after every incident in the Law

Library was not feasible and [was] a waste of judicial resources.”

Scott presents no other explanation why she believes the district

court erred in excluding the evidence of retaliation occurring

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after she filed her second amended complaint. Given the time frame

in which Scott presented these alleged additional acts of

retaliation, we cannot conclude that the district court abused its

discretion in excluding evidence of the acts not included in her

second amended complaint. See Information Resources Inc. v. United

States, 996 F.2d 780, 785 (5th Cir. 1993) (holding that district

court did not abuse its discretion in excluding claim when party

delayed supplementing discovery responses to include the claim

until shortly before trial); EEOC v. Manville Sales Corp., 27 F.3d

1089, 1092-93 (5th Cir. 1994) (stating that we review evidentiary

rulings only for abuse of discretion).

C

Scott lastly contends that the district court erred in

excluding testimony about age discrimination in the 1995 hiring.

The district court excluded all testimony pertaining to this claim

because Scott had not presented the claim to the EEOC. Citing “29

C.F.R. § 16.513 (1988),”22 Scott argues that amendments to the EEOC

regulations have eliminated the exhaustion requirements for age

discrimination cases, citing several cases that she claims support

this proposition. She also contends that it was not necessary to

file this claim with the EEOC because the age discrimination in the

1995 hiring was “intricately intertwined” with the 1993 hiring,

22
Based on our review of the cases Scott cites, it appears
that she intended to cite 29 C.F.R. § 1613.513, rather than 29
C.F.R. § 16.513, which does not exist in the federal regulations.

-46-
which was already being litigated; she argues that, under this

circumstance, the district court has “ancillary jurisdiction” to

hear the claim.

The University counters that a plaintiff must submit a charge

of age discrimination to the EEOC prior to filing a lawsuit raising

an ADEA claim. The University distinguishes the cases cited by

Scott, and the regulations cited therein, as applying to only

federal and not state government agencies and their employees.

We first reject as incorrect Scott’s assertion that an ADEA

plaintiff need not exhaust administrative remedies. As we have

previously held, “[a] charge of discrimination must be timely filed

with the EEOC prior to the initiation of a civil action under the

ADEA.” Clark v. Resistoflex Co., Div. of Unidynamics Corp., 854

F.2d 762, 765 (5th Cir. 1988) (citing 29 U.S.C. § 626(d), which

provides that “[n]o civil action may be commenced by an individual

. . . a charge alleging unlawful discrimination has been filed with

the Equal Employment Opportunity Commission”). Moreover, as the

University correctly points out, the cases cited by Scott as

supporting the elimination of the EEOC filing requirement are

inapposite: those cases concern the interpretation and application

of regulations that are sections of 29 C.F.R. Part 1613 (since

redesignated as Part 1614), which governs complaints filed by

federal employees only. See Bak v. Postal Serv., 52 F.3d 241, 243

(9th Cir. 1995), cert. denied sub nom. Bak v. Runyon, ___U.S.___,

-47-
118 S. Ct. 374, 139 L. Ed. 2d 291 (1997) (citing 29 C.F.R. §

1613.513); Adler v. Espy, 35 F.3d 263, 264 (7th Cir. 1994) (citing

29 C.F.R. § 1613.215(a)(3)); Bornholdt v. Brady, 869 F.2d 57, 63

(2d Cir. 1989) (citing 29 C.F.R. § 1613.513); see also 62 Fed. Reg.

17,041, 17,043 (1997) (“The Equal Employment Opportunity

Commission’s regulations governing discrimination complaints filed

by Federal employees, formerly found at 29 C.F.R. Part 1613, are

now found at 29 C.F.R. Part 1614.”).

We also reject Scott’s contention that the district court

could properly entertain the 1995 discrimination claim because it

was intricately intertwined with the 1993 discrimination claim.

While we have held that “a district court has ‘ancillary

jurisdiction’ to hear a claim of retaliation, even though not filed

with the EEOC, ‘when it grows out of an administrative charge that

is properly before the court,’” see Barrow v. New Orleans Steamship

Ass’n, 932 F.2d 473, 479 (5th Cir. 1991) (quoting Gupta v. East

Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)),

we have not so held with respect to discrimination claims. See

Gupta, 654 F.2d at 414 (indicating that this rule is limited to

retaliation claims due to the special nature of such claims).

As the district court correctly stated, Scott never presented

her ADEA claim concerning age discrimination in the 1995 hiring to

the EEOC. We accordingly hold that the district court did not err

in excluding testimony regarding her age discrimination claim for

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the 1995 hiring.

VI

For the foregoing reasons, the decision of the district court

denying the University’s motion for judgment as a matter of law is

REVERSED and judgment is hereby RENDERED in the University’s favor.

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