Trotter v. Board of Trustees of the University of Alabama

United States Court of Appeals,

Eleventh Circuit.

No. 95-6465.

Pamela Y. TROTTER, Plaintiff,

Rhonda Coleman; Sonia Floyd, Plaintiffs-Appellants,

v.

The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA, a body
corporate, for its division University of Alabama at Birmingham,
Defendant-Appellee.

Aug. 20, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV94-B-348-S), Sharon L. Blackburn,
Judge.

Before ANDERSON, Circuit Judge, and GODBOLD and RONEY, Senior
Circuit Judges.

ANDERSON, Circuit Judge:

In this appeal, plaintiffs-appellants Rhonda Coleman and Sonia

Floyd ("plaintiffs") contest the district court's order granting

defendant-appellee Board of Trustees of the University of Alabama

("the Board") judgment as a matter of law on the plaintiffs' Title

VII race discrimination claims. For the reasons set forth below,

we affirm.

I. STATEMENT OF THE CASE

A. Background Facts

Coleman and Floyd, both of whom are African-American, were

unit secretaries employed at the University of Alabama Hospital in

Birmingham ("the hospital"). Coleman was hired in early June of

1992 at a wage of $6.00 per hour, and Floyd was hired in late

September of 1992 at a wage of $5.62 per hour. Around the middle

of October 1992, Charles Russell, a caucasian, was hired by the
hospital as a unit secretary at a wage of $6.50 per hour. All

three were hired to work in the diabetes unit. There is no dispute

that both Coleman and Floyd have more experience working in a

hospital setting than Russell.

The head nurse of each unit at the hospital is responsible for

hiring and supervising the unit secretaries. Nicky Ennis was the

head nurse in the diabetes unit until November 1, 1992. However,

by the time Russell was hired in October of that year, Ennis had

been named head nurse of another unit, and she was actively engaged

in interviewing job applicants and staffing that unit. Her

administrative duties in the diabetes unit, including staffing and

interviewing responsibilities, were performed by Debbie Dement, a

shift manager. Dement interviewed Russell and, after consulting

briefly with Ennis, made the decision to send him to personnel with

the recommendation that he be hired.

Coleman testified that in May of 1993, she went to Dement and

told her that Russell was making more money than she was, even

though he had less experience. Dement immediately called Harry

Shugerman, the Senior Personnel Relations Representative, who began

an investigation into the alleged pay disparities among secretaries

in the diabetes unit. As a result of his investigation, Shugerman

concluded that Russell's salary was an error, and that he should

not have been given a higher salary than Coleman or Floyd. He

reported these findings to the hospital's Director of Compensation,

Patricia Townsend. Shugerman testified that, at the time that the

plaintiffs and Russell were hired, there was no system in place at

the hospital by which the salary of a new hire would be adjusted to
fit in appropriately with the salaries of those already hired,

although that was to some extent the expectation within the human

resources department. According to Shugerman, Townsend and Marilyn

Gavin, the Associate Director of the hospital's human resources

department, that expectation was not being met, and there were

instances throughout the hospital of more senior employees

receiving a lower salary than newer hires.1

Shortly after calling the matter to Dement's attention in May

of 1993, Coleman and Floyd filed a complaint with the EEOC in June

of 1993. Soon thereafter, the hospital acknowledged the error and

offered to pay the plaintiffs the difference between their salaries

and Russell's salary for the period during which he was employed at

the hospital.2 Shugerman testified that the plaintiffs initially

refused this offer. After the new Mercer compensation system was

implemented, Coleman and Floyd were paid a lump sum equal to the

difference between what they had been paid and what Russell had

been paid during the time that he was employed by the hospital.3

B. Procedural History

Coleman, Floyd and Pamela Trotter, who is not a party to this

appeal, filed charges with the EEOC alleging discrimination in

1
At the time that the events relevant to this case occurred,
the hospital was in the process of instituting the Mercer
Performance Recognition System. Townsend testified that the
purpose of the new system was to standardize the pay structure
and avoid disparities like the one at issue here. However, the
Mercer system was not yet in place when Russell's salary was set.

2
Russell resigned at the end of July 1993.
3
Additional facts will be discussed in the course of our
analysis.
compensation based on race and sex. On February 14, 1994, Coleman,

Floyd and Trotter filed suit against the Board in United States

District Court, alleging sex and race discrimination in violation

of Title VII, 42 U.S.C. § 1981 and the Equal Pay Act. The district

court dismissed Trotter's claims in their entirety, dismissed

Coleman's and Floyd's sex discrimination claims under Title VII and

the Equal Pay Act with the consent of the plaintiffs' counsel, and

granted the Board's motion for summary judgment on the plaintiffs'

§ 1981 claim. Coleman's and Floyd's Title VII race discrimination

in compensation claims were tried before a jury. At the conclusion

of the evidence, but before the case was given to the jury for

deliberation, the district court granted the Board's motion for

judgment as a matter of law, and denied a similar motion by the

plaintiffs. In this appeal, the plaintiffs challenge only those

rulings of the district court relating to their Title VII race

discrimination claim, in which they alleged discrimination based on

the disparity in compensation between themselves and Russell.

II. ISSUES ON APPEAL

On appeal, plaintiffs-appellants challenge three of the

district court's decisions: (1) the district court's ruling that

there was no direct evidence of discrimination on the part of the

person who made the salary decision at issue in this case, (2) the

court's ruling that the Board did satisfy its burden of producing

evidence which would permit the finder of fact to conclude that the

challenged salary decision had not been motivated by racial animus,

and (3) the court's direction of a verdict against the plaintiffs

after the close of the evidence.
 III. ANALYSIS

A. Standard of review

We review the district court's grant of judgment as a matter

of law de novo, applying the same standard that the district court

applied in its ruling granting the motion. Hessen v. Jaguar Cars,

915 F.2d 641, 644 (11th Cir.1990). When evaluating the grant of

judgment as a matter of law, the court

should consider all of the evidence—not just that evidence
which supports the non-mover's case—but in the light and with
all reasonable inferences most favorable to the party opposed
to the motion. If the facts and inferences point so strongly
and overwhelmingly in favor of one party that the [c]ourt
believes that reasonable men could not arrive at a contrary
verdict, granting of the motions is proper. On the other
hand, if there is substantial evidence opposed to the motions,
that is, evidence of such quality and weight that reasonable
and fairminded men in the exercise of impartial judgment might
reach different conclusions, the motions should be denied, and
the case submitted to the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969).4

B. Direct evidence of discrimination

The plaintiffs argue that head nurse Nicky Ennis decided to

pay Russell more than they were paid because Russell is white and

they are African-Americans. They offered at trial the testimony of

Juanita Lamb as proof of Ennis' discriminatory intent. Lamb is

also a secretary in the diabetes unit. Lamb testified that she

overheard Ennis explain to a doctor that the reason she left the

emergency room in 1982, where she had worked as a nurse, was that

she did not like taking orders from an African-American person.

Lamb also described an incident that allegedly occurred when Ennis

was on duty in the diabetes unit. According to Lamb, a white nurse

4
Both the direct evidence and directed verdict issues
involve the application of this standard.
whose name she could not recall dropped a pill on the floor in

front of an African-American patient, and then tried to administer

that same pill to the patient, who refused to take it. Lamb stated

that Ennis tried to get the patient discharged because the patient

was causing problems for one of her white employees.5
Statements indicating racial bias on the part of a

decisionmaker in an employment setting can constitute direct

evidence of racial discrimination in Title VII cases. See Haynes

v. W.C. Caye and Co., Inc., 52 F.3d 928, 931 (11th Cir.1995)

("Indeed, a statement that members of a racial minority in general

... are simply not competent enough to do a particular job would

seem to be a classic example of direct evidence."); Bell v.

Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983),

cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984)

(finding statement by decisionmaker that he would not let female

plaintiff work in the washroom because then all women would want to

5
With respect to both incidents related in the text, Lamb
testified that Ennis used a racial slur to describe African-
American persons during the course of those particular
conversations. There is a conflict in the evidence with respect
to racial bias on the part of Ennis in the foregoing incidents.
On cross examination, Lamb could not recall when these incidents
occurred. Ennis disputed Lamb's assertions. She said that the
incident with the pill did not happen the way Lamb described it,
because she specifically recalled that the patient in question
was a white female, and she remembered reprimanding the nurse,
Valorie Parrish, for trying to give her the pill. Ennis also
testified that when she applied to become an emergency room nurse
in 1977, she knew that the medical director was Dr. Rick Ransom,
an African-American man, whom she stated is a personal friend of
hers. Ennis insisted that her reasons for leaving the emergency
room in 1982 were personal—her son was killed by a hit and run
driver, and she could no longer tolerate the sight of injured
children. In the posture of this case, we assume the truth of
Lamb's version of events because a reasonable jury could resolve
the conflict in favor of the plaintiffs and conclude that Ennis
displayed racial bias.
work there "highly probative evidence of illegal discrimination.")

When there is direct evidence that discrimination was a

motivating factor in the challenged employment decision, the

appropriate analysis is different from that employed in a case

where only circumstantial evidence is available. Bell v.

Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983),

cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984)

(where plaintiff provides direct evidence of a discriminatory

motive, "the ultimate issue of discrimination is proved"); Haynes

v. W.C. Caye and Co., Inc., 52 F.3d 928, 931 (11th Cir.1995)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109

S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989)) (once the plaintiff

presents direct evidence of discriminatory motive, it is then left

to the defendant to prove by a preponderance of the evidence that

the same employment decision would have been reached even absent

discriminatory intent).

We can assume arguendo, without deciding, that the evidence

of bias on the part of Ennis might otherwise rise to the level of

direct evidence. However, in this case Ennis was not involved in

the challenged salary decision. For statements of discriminatory

intent to constitute direct evidence of discrimination, they must

be made by a person involved in the challenged decision. Price

Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804-05 (O'Connor, J.,

concurring) ("Thus, stray remarks in the workplace, while perhaps

probative of sexual harassment ... cannot justify requiring the

employer to prove that its hiring or promotion decisions were based

on legitimate criteria. Nor can statements by nondecisionmakers
..."); see also id. at 251, 109 S.Ct. at 1791 (plurality opinion

of Brennan, J.) (plaintiff must show that remarks played a part in

a particular hiring decision).

In this case, there is no substantial evidence that Ennis had

anything to do with deciding how much Russell would be paid.

Dement, who had assumed Ennis' administrative duties in the

diabetes unit while Ennis was engaged in setting up her new unit,

conducted the actual interview with Russell. All of the evidence,

including the documentary evidence and the testimony of a
disinterested witness, Russell, confirms the fact that it was

Dement who handled the hiring of Russell. Dement also testified

that she never discussed salary with Russell. Russell's testimony

confirms this. In addition, Ennis testified at trial that she did

not meet with Russell prior to his hiring, and that she did not

have any role in setting his salary. 6 Russell testified that he

discussed his prospective salary only with Paige Lessig, an

employment specialist in the human resources department at the

hospital, with whom he met at Dement's behest after she recommended

6
At an earlier deposition, Ennis testified that she
interviewed Russell. However, as she explained in her testimony
at trial, she obviously was mistaken. At the time of her
deposition, she did not realize that Russell was interviewed and
hired during the time when she was no longer actively
participating in the interviews and hiring process in the
diabetes unit. Rather, as noted above, in mid-October, 1992,
when Russell was hired, Ennis had already been appointed the head
nurse of another unit and was actively engaged in interviewing
and staffing that unit, while Dement assumed those duties with
regard to the diabetes unit. These facts, including the fact
that it was Dement and not Ennis who interviewed Russell and
recommended that he be hired, were confirmed by all of the
evidence at trial, including the documentary evidence and the
testimony of a disinterested witness, Russell. No reasonable
juror could conclude that Ennis was involved in setting Russell's
salary.
that he be hired. According to the testimony of Ennis, Dement,

Patricia Townsend and Marilyn Gavin, the human resources department

is responsible for setting the salaries of secretaries within the

medical nursing areas, which includes the diabetes unit.

Even assuming arguendo that Ennis made the statements

attributed to her by Lamb, there is no substantial evidence that

Ennis was a decisionmaker when it came to salaries in general and

to Russell's salary in particular. Neither plaintiff testified to

that effect, nor did any other witness. 7 At most, Ennis' words

constitute "stray remarks in the workplace" and "statements by [a]

nondecisionmaker" that do not constitute direct evidence of

discrimination in compensation in the diabetes unit. Price

Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804-05; see also

E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th

Cir.1990). We conclude that the evidence "so strongly and

overwhelmingly" points to the fact that Ennis was not involved in

the challenged salary decision that no reasonable juror could

conclude otherwise. Thus, the plaintiffs cannot rely upon the

evidence of discriminatory intent on the part of Ennis to prove

that the challenged salary decision was racially motivated.

C. Circumstantial evidence of discrimination

Despite the fact that the plaintiffs have presented no direct

evidence of discrimination, they may still have sufficient

7
Although the evidence might raise an inference, see n. 8,
infra, that the person in the diabetes unit who interviewed and
recommended hiring Russell would have been consulted about and
would have approved his salary, Ennis did neither. During that
entire time Dement, and not Ennis, performed those functions as
acting head nurse.
circumstantial evidence of discrimination to reach the jury. We

evaluate Title VII claims supported by circumstantial evidence

using the familiar framework set out by the United States Supreme

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

1817, 36 L.Ed.2d 668 (1973). Initially, the plaintiff has the

burden of establishing a prima facie case of discrimination. Id.

at 802, 93 S.Ct. at 1824. The plaintiffs' prima facie case gives

rise to a presumption of discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2747, 125 L.Ed.2d

407 (1993); Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th

Cir.1994). If the plaintiff establishes a prima facie case, the

defendant has a burden of producing a legitimate, nondiscriminatory

reason for the challenged action. This places upon the defendant

merely an intermediate burden of production. Turnes, 36 F.3d at

1060. To satisfy this burden of production, the "defendant need

not persuade the court that it was actually motivated by the

proffered reasons.... It is sufficient if the defendant's evidence

raises a genuine issue of fact as to whether it discriminated

against the plaintiff." Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d

207 (1981). In other words, a defendant satisfies its intermediate

burden of production if it produces "admissible evidence which

would allow the trier of fact to conclude that the employment

decision had not been motivated by discriminatory animus." Turnes,

36 F.3d at 1061-62 (quoting Burdine, 450 U.S. at 257, 101 S.Ct. at

1095-96) (emphasis in Turnes ). If a defendant succeeds in

carrying its intermediate burden of production, the McDonnell
Douglas framework, along with its presumption of discrimination,

drops out of the case and the trier of fact proceeds to the

ultimate issue of whether the plaintiff has proven that the

defendant intentionally discriminated. Id. at 1061. On the other

hand, "[w]here a plaintiff's prima facie case is established, but

the employer fails to meet its burden of production, the unrebutted

presumption of discrimination stands." Id.

If the defendant satisfies its burden of production, the

plaintiff has an opportunity to show by a preponderance of the

evidence that the reasons offered by the defendant are a mere

pretext for discrimination, and to persuade the factfinder that the

defendant intentionally discriminated against the plaintiff.

McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. "The

ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at

1093-94.

1. The Board's Burden of Production

The Board in this case does not argue that the plaintiffs

failed to present a prima facie case creating a presumption of

discrimination. Therefore, the first issue we address is whether

the Board has satisfied its burden to produce evidence to rebut

that presumption. The plaintiffs characterize the Board's attempt

in this regard as consisting merely of an assertion that Russell

was paid a higher salary than the plaintiffs because of a mistake.

The plaintiffs argue that our holding in Turnes governs the

disposition of this case.
 In Turnes, the plaintiff applied for and was denied a job as

a loan collector with the defendant bank. After Turnes filed a

charge with the EEOC, the bank performed a credit check on him and

discovered that he had a poor credit history. A bank officer

testified at trial that his poor credit history would preclude the

plaintiff from being considered as a loan collector with the bank.

Id. at 1059-60. We noted that Turnes' credit history was

discovered only after the bank made its decision not to hire him.

Id. at 1061-62. Applying the McDonnell Douglas framework, we held

that AmSouth had not satisfied its burden of production because it

offered a justification which the employer "either did not know or

did not consider at the time the decision was made." Id. at 1061.

Because the after-acquired knowledge that Turnes had a bad credit

history had to be disregarded, we held that AmSouth had come

forward with "no explanation" at all for the challenged decision.

Id. at 1062. We therefore held that Turnes' prima facie case and

presumption of discrimination stood unrebutted. Id.

The plaintiffs argue that the instant case is identical to

Turnes in that the Board's mistake theory amounts to no explanation

at all. To evaluate the plaintiffs' argument, it is necessary to

summarize the relevant evidence. We have already discussed the

evidence of discrimination on the part of Ennis, and also the lack

of involvement by Ennis in the challenged salary decision. We also

noted above that the evidence indicates that Lessig made the salary

decision at issue here.8 Russell testified that he spoke only with

8
The only evidence that anyone else was involved in setting
Russell's salary comes from the deposition of Lessig, which was
read at trial. Although her deposition confirms all the other
Lessig about his salary and that he told her he would not accept

the position at a salary less than $6.50 per hour. The Board

adduced evidence that the human resources department was

responsible for such salary decisions. Lessig was the employment

specialist who processed Russell, and she had been on the job for

10 months at the time she did so. Employees in medical nursing, a

group which includes both Russell and the plaintiffs, were not

within Lessig's normal sphere of responsibility, and Lessig was not

familiar with the hiring procedures in that area. At the time
Russell was hired, the human resources department was in the midst

of filling 400 positions, four times the normal contingent of

positions vacant at the hospital at any one time. Lessig testified

that Russell was the best qualified of the numerous candidates

evidence that the salary decision was made by her, Lessig also
testified that the general practice followed when setting a rate
of compensation was to consult with and rely on the unit, and
that generally that would entail consulting with the head nurse.
She testified that the unit (through the head nurse) would
ordinarily approve the salary. However, she did not know whether
or not the head nurse in diabetes approved Russell's salary. As
noted above, it is undisputed that, although Ennis held the
official position of head nurse until November 1, 1992, at the
time Russell was hired in mid-October 1992 she had already been
appointed head nurse of another unit and was interviewing
applicants and staffing that unit. Dement was acting as head
nurse and performing those functions in the diabetes unit where
Russell was employed. It is also clear that it was Dement, and
not Ennis, who interviewed Russell. Thus, when Lessig testified
that the unit would generally be consulted and would approve a
salary decision, the only reasonable inference in light of all of
the evidence is that the person consulted in this case would have
been Dement, not Ennis. Although Lessig's deposition raises an
inference that Dement had some involvement in the challenged
salary decision, that provides no support for the plaintiffs'
case, because there is no evidence of discriminatory intent on
the part of Dement.
 9
available for the job. The plaintiffs offered absolutely no

evidence of racial animus on the part of Lessig, or indeed on the

part of Dement or anyone except Ennis. Indeed, the plaintiffs

offered no evidence that Lessig even knew that the plaintiffs were

African-American.

In view of the foregoing evidence, we reject the plaintiffs'

argument that this case is just like Turnes. Unlike Turnes, in

which there was no explanation at all, the Board in the instant

case presented substantial evidence which tended to rebut the

plaintiffs' presumption of discrimination. The Board presented,

inter alia, evidence on the basis of which a reasonable factfinder

could conclude the following: that the person with respect to whom

the plaintiffs' evidence attributes racial discrimination, Ennis,

had no involvement at all in the salary decision at issue; that

the person who made the challenged salary decision was Lessig;

that Lessig was a new employee who was unfamiliar with the relevant

procedures and who was placed in the relevant position by the

strained circumstances of the need to fill four times the normal

vacancies; that Lessig's salary decision was based upon the

judgment the Russell was the best qualified of the candidates then

available and the fact that Russell told Lessig that he would not

work for less than $6.50 an hour; and, most significantly, that

Lessig did not even know at the time the race of the plaintiffs.10

9
Of course, plaintiffs had been hired earlier and were not
in the pool of candidates at the time.
10
Not only was there no evidence of racial animus on the
part of Lessig, there was also evidence that she did not even
know the plaintiffs' salaries or the salaries of other
secretaries in the diabetes unit. Ennis testified that she never
 Under these circumstances, it cannot be said that the Board

offered no explanation for the salary decision at issue. It is

important to recall the dimensions of the Board's burden of

production. It is required merely to adduce evidence that raises

a genuine issue of fact as to whether it discriminated against the

plaintiffs or, in other words, to "produce admissible evidence

which would allow the trier of fact to conclude that the employment

decision had not been motivated by discriminatory animus." Turnes,

36 F.3d at 1061 (quoting from Burdine, 450 U.S. at 257, 101 S.Ct.

at 1095-96) (emphasis added by Turnes )). As noted above, the

Board's evidence did more than raise a genuine issue of fact about

the noninvolvement of Ennis. The Board's evidence conclusively

established that Ennis was not involved in the challenged salary

decision. The Board's evidence was sufficient to create genuine

issues of fact from which the factfinder could conclude that Lessig

was the person who made the salary decision and that she made that

decision because Russell was the best qualified of the available

candidates and would not work for less than $6.50 per hour. We

readily conclude that a factfinder could surmise that the salary

talked to Lessig or the human resources department about Russell.
Dement, the person with whom Lessig did speak, testified that she
first learned that Russell was paid $6.50 per hour only after the
plaintiffs complained to her. Although other units of the
hospital apparently were involved in setting the salaries for new
hires, which perhaps explains Lessig's testimony to that effect,
the Board presented evidence that the director of the nursing
units had a firm policy that salaries should be determined
exclusively by the human resources department, and that head
nurses under her supervision, including Ennis and Dement, should
not be involved. Thus, the evidence adduced by the Board
permitted the jury to find that, with respect to the challenged
salary decision, the decisionmaker, Lessig, did not know either
the race of plaintiffs or the amount of their salaries and thus
could not have intentionally discriminated.
decision was not motivated by discriminatory animus. Thus, the

Board has satisfied its burden of production.11
2. The Directed Verdict

The Board having satisfied its burden of production, the

McDonnell Douglas presumption of discrimination drops out of the

case, and the plaintiffs retain their ultimate burden of proving by

a preponderance of the evidence that the salary decision was

motivated by intentional discrimination. As noted above, this

issue went to trial, but the district court directed a verdict

against the plaintiffs at the close of all of the evidence. We

review that ruling by employing the Boeing standard set forth

above.

The only evidence of racial animus adduced by the plaintiffs

pointed to racial animus on the part of Ennis. However, as we

demonstrated above, no reasonable juror could conclude based on the

evidence before this jury that Ennis had any involvement in the

determination of Russell's compensation. Because Ennis was not

involved in the challenged decision, the plaintiffs cannot rely

upon possible racial animus on her part. With respect to the

11
It is true that the Board's evidence does not fully
explain why Russell was paid $6.50 per hour, which in light of
his experience level apparently was higher than that to which he
was entitled under the pay system then in operation. The precise
figure of $6.50 was apparently a mistake. However, the
defendant's intermediate burden of production merely requires a
defendant to adduce evidence which would allow the factfinder to
conclude that the employment decision was not racially motivated.
As demonstrated above, defendants amply satisfied this burden.
The parties in this case argue about whether or not evidence of a
mistake can satisfy a defendant's burden of production. However,
the more appropriate inquiry is whether the circumstances
revealed by the evidence, whether characterized as mistake or
otherwise, permit the factfinder to conclude that the challenged
decision was not racially motivated.
person who probably made the salary decision, Lessig, the

plaintiffs adduced absolutely no evidence of discrimination.12 The

plaintiffs adduced absolutely no evidence that Lessig knew that

they were African-Americans or that African-Americans in the
13
diabetes unit were paid less than their white co-workers. The

inference created by the Board's evidence, that Lessig set the

salary at $6.50 per hour because there was a need for new hires and

because Russell was the best qualified candidate and would not work

for less, remains unrebutted. There was simply no evidence at all

that Lessig or any other possible decisionmaker was motivated by

racial animus, and thus the plaintiffs have failed to carry their

ultimate burden of persuasion. The evidence points "so strongly

and overwhelmingly in favor of ... [the Board] that ... reasonable

men could not arrive at a contrary verdict." Boeing Co. v.

Shipman, 411 F.2d at 374. Accordingly, the district court properly

directed a verdict against the plaintiffs at the close of all of

the evidence.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

12
Indeed, plaintiffs adduced absolutely no evidence of
discrimination on the part of anyone except Ennis. Even assuming
arguendo that Lessig communicated with someone in the diabetes
unit, one could not reasonably infer that Lessig consulted with
Ennis because Ennis was no longer actually involved in
administrative matters in that unit. Assuming arguendo that
Lessig consulted with Dement does not help the plaintiffs because
the plaintiffs adduced absolutely no evidence of discrimination
on the part of Dement.
13
In fact, there was no substantial evidence that African-
Americans in the diabetes unit were paid less than their white
counterparts.