United States Court of Appeals,
Eleventh Circuit.
No. 94-4769.
Paul ISENBERGH, Plaintiff-Appellant,
v.
KNIGHT-RIDDER NEWSPAPER SALES, INCORPORATED, a/k/a Newspapers
First, Inc., Knight-Ridder, Inc., Defendants-Appellees.
June 11, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-1596-CIV-UUB), Jacob Mishler, Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL*, Senior
Circuit Judge.
ENGEL, Senior Circuit Judge:
Plaintiff Paul Isenbergh appeals the district court's grant of
judgment as a matter of law for defendant Knight-Ridder Newspaper
Sales, Inc. ("KRNS"), a/k/a Newspapers First, Inc. ("Newspapers
First"), in Isenbergh's suit under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Isenbergh claims
that Newspapers First discriminated against him because of his age
in selecting the manager for the company's Miami sales office.
After trial, a jury returned a verdict in favor of Isenbergh and
awarded him $250,000 in damages. Newspapers First, which earlier
had submitted a motion for judgment as a matter of law that the
district court denied, renewed its motion under Rule 50(b) of the
Federal Rules of Civil Procedure. The district court granted the
motion. Because we agree that Isenbergh did not produce evidence
from which the jury could reasonably infer intentional
*
Honorable Albert J. Engel, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.
discrimination based on age, we affirm.
I.
In 1990, KRNS merged with Million Market Newspapers/Times
Mirror National Marketing, Inc. ("MMTM") to form Newspapers First.
At the time of the merger, Isenbergh, sixty years old, was the
manager of KRNS's Miami sales office. Larry Malloy, forty-four
years old, was the manager of MMTM's Miami sales office. Both were
candidates, along with eight other KRNS and MMTM managers from
around the country, for the new position of manager of Newspapers
First's Miami sales office. To select the new manager, King
Anthony, the former president of MMTM and current president of
Newspapers First, and John Kosanke, the former president of KRNS
and current executive vice-president of Newspapers First,
interviewed the ten candidates. The only real competition for the
new position, however, was apparently between Isenbergh and Malloy,
because Newspapers First did not want to move a manager from
another part of the country to Miami. In conjunction with the
interviews, Anthony and Kosanke used an "alternation ranking
system" to rate the candidates. KRNS had never used this system
before to make personnel decisions. Under the system, each
candidate received two ordinal rankings: one based on past
management performance and one based on the interview. The two
rankings were averaged to obtain each candidate's overall score.
When the nine candidates who had worked at KRNS or MMTM for
more than six months were ranked according to this system,
Isenbergh finished eighth. Malloy finished second. Three managers
over age fifty—including one who was sixty-three years old—finished
higher than Isenbergh. Malloy got the job, and Isenbergh was
offered the chance to interview for a sales position in Miami. He
chose to take early retirement instead.
Isenbergh testified that the atmosphere at his interview was
"cold" and that Anthony was on the phone most of the time. His
interview allegedly lasted only a half-hour, whereas Malloy's was
a full hour, as all of the interviews were planned to be.
Newspapers First presented evidence challenging Isenbergh's version
of what happened at the interview.
Isenbergh worked for KRNS from the late 1960s until 1990,
mostly as a salesman. He became a vice-president in 1984. In
1986, he won the praise of Kosanke by selling an advertising
package to Walt Disney World. Isenbergh's competitors for the
account included a newspaper whose sales were handled by Malloy.
The parties dispute the significance of this transaction.
Isenbergh characterizes it as evidence of his good job performance
in the past and of his superior qualification, relative to Malloy,
for the managerial job. Newspapers First deems it to be
irrelevant, because it involved sales, not management, and because
Isenbergh's newspaper was able to offer Walt Disney World a lower
advertising rate than was Malloy's newspaper.
There is conflicting evidence about how Isenbergh was viewed
within the company and about his qualifications as a manager.
Isenbergh points to his annual pay raises and
management-by-objective bonuses that were approved by Kosanke, as
well as to the lack of a paper trail of criticism, as evidence of
his perceived competence. He further points to testimony by
Kosanke that Isenbergh was a "seasoned manager" and a "satisfactory
manager." Kosanke also testified, however, that Isenbergh was a
"lone ranger" and was not a "team player." Isenbergh argues that
his experience running newspaper offices of up to five people and
commanding a department of about sixty men while he was in the Navy
qualified him as a manager. Newspapers First counters that
Isenbergh's job at KRNS entailed little management and that for the
management Isenbergh did do, he was criticized by Kosanke. It
stresses Malloy's extensive management experience and argues that
he was better suited for the new job than Isenbergh.
II.
A.
We review de novo the district court's grant of judgment as
a matter of law. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2557, 132 L.Ed.2d
811 (1995). In other words, we apply the same standard as that
applied by the district court. Carter v. City of Miami, 870 F.2d
578, 581 (11th Cir.1989). In considering a motion for judgment as
a matter of law, a court must view all the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of the nonmoving party. Id. The motion should
be granted only if upon such consideration, the court finds that
reasonable people in the exercise of impartial judgment could not
arrive at a contrary verdict. Id. The court may not weigh the
evidence or decide the credibility of witnesses. Watts v. Great
Atl. & Pac. Tea Co., 842 F.2d 307, 310 (11th Cir.1988) (quoting
Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc)).
The nonmoving party must provide more than a mere scintilla of
evidence to survive a motion for judgment as a matter of law;
"there must be a substantial conflict in evidence to support a jury
question." Carter, 870 F.2d at 581.
Newspapers First argues that judgment as a matter of law is
appropriate in age discrimination cases more often than in other
cases because in age discrimination cases juries tend to return
verdicts based on sympathy rather than law. Certainly it is true
that in some age discrimination cases, "sympathy for the plaintiff
may present an overriding but impermissible factor in a jury
verdict for plaintiff." Chappell v. GTE Prods. Corp., 803 F.2d
261, 265 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct.
1375, 94 L.Ed.2d 690 (1987). If there can be no reasonable dispute
as to the facts of the case and the inferences to be drawn from
them, judgment as a matter of law is of course applicable to
prevent a jury verdict based purely on sympathy. The legal
standard for when to grant judgment as a matter of law in age
discrimination cases, however, is no different from that in other
cases: whether reasonable people could arrive at a contrary
verdict. In fact, this court has cautioned against taking
employment discrimination cases away from the jury. See Batey v.
Stone, 24 F.3d 1330, 1336 (11th Cir.1994) (noting that summary
judgment is often inappropriate in employment discrimination cases
because the factual inquiry involves an examination of motive and
intent); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913,
921 (11th Cir.1993) (noting that summary judgment is "generally
unsuitable in Title VII cases in which the plaintiff has
established a prima facie case").
The fact that the district court judge allowed the question
of Newspapers First's liability to go to the jury before granting
judgment as a matter of law does not affect our review of the
judgment. Before the 1991 amendment to Rule 50, a Rule 50 motion
before the verdict was a "motion for directed verdict," and a Rule
50 motion after the verdict was a "motion for judgment
notwithstanding the verdict." Now, both are termed "motion for
judgment as a matter of law." The Advisory Committee on Rules has
explained that one reason for the change in terminology was to
express "the common identity of the two motions made at different
times in the proceeding." Fed.R.Civ.P. 50(a) advisory committee's
note on 1991 amendment. Furthermore, our cases have acknowledged
that the standard of review for a judgment notwithstanding the
verdict is the same as that for a directed verdict. E.g., Lamb v.
Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir.1993). The
district court's grant of Newspapers First's motion for judgment as
a matter of law after the jury verdict under Rule 50(b) was not
inconsistent with its denial of Newspapers First's motion for
judgment as a matter of law before the verdict under Rule 50(a).
As the Advisory Committee has explained,
Often it appears to the court ... that a motion for judgment
as a matter of law made at the close of the evidence should be
reserved for a post-verdict decision. This is so because a
jury verdict for the moving party moots the issue and because
a preverdict ruling gambles that a reversal may result in a
new trial that might have been avoided. For these reasons,
the court may often wisely decline to rule on a motion for
judgment as a matter of law made at the close of the
evidence....
Fed.R.Civ.P. 50(b) advisory committee's note on 1991 amendment.
The district court in this case took such a prudent course, which
in no way affects our analysis of whether its grant of the motion
after the verdict was correct.
B.
We look first to see whether Isenbergh has presented a prima
facie case of discrimination. A plaintiff alleging age
discrimination under the ADEA may choose one of three ways to
establish a prima facie case: (1) direct evidence of
discriminatory intent; (2) statistical proof of disparate
treatment; or (3) meeting a test such as that set out in
McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). See Carter v. City of Miami, 870 F.2d 578, 581 (11th
Cir.1989).
In McDonnell Douglas, the Supreme Court articulated the four
elements a plaintiff must show in order to establish a prima facie
case of employment discrimination:
(i) that he belongs to a [protected class]; (ii) that he
applied and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications,
he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek
applicants from persons of complainant's qualifications.
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The Supreme
Court intended this framework to be flexible, see id. at 802 n. 13,
93 S.Ct. at 1824 n. 13, rather than "mechanized, or ritualistic,"
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943,
2949, 57 L.Ed.2d 957 (1978)). This court has enunciated various
reformulations of the McDonnell Douglas test. For example, in
Carter, we applied a variation of the McDonnell Douglas test
requiring that a plaintiff show the following elements to establish
a prima facie case under the ADEA:
(1) that he is a member of the protected group; (2) that
adverse employment action was taken against him, e.g.
discharge, demotion, or failure to hire; (3) that he was
replaced by a person outside the protected group; and (4)
that he was qualified for the position for which he was
rejected.
Carter, 870 F.2d at 582 (footnote omitted).1 In Carter, the
plaintiff had been fired and replaced by a younger employee. In
Earley v. Champion International Corp., 907 F.2d 1077 (11th
Cir.1990), we set forth a slightly different variation of the
McDonnell Douglas test in a case involving a "reduction in force."
The plaintiff had to show
(1) that he was in a protected age group and was adversely
affected by an employment decision; (2) that he was qualified
for his current position or to assume another position at the
time of discharge or demotion; and (3) evidence by which a
fact finder might reasonably conclude that the employer
intended to discriminate on the basis of age in reaching the
decision at issue.
Earley, 907 F.2d at 1082.
We have followed the Supreme Court's command that the
application of any test for establishing a prima facie case be
flexible. E.g., Carter, 870 F.2d at 582 n. 11; see also Pace v.
Southern Ry. Sys., 701 F.2d 1383, 1387 (11th Cir.) ("The
particularly amorphous nature of age discrimination counsels
1
An ADEA plaintiff need not show that the person selected
for the job was younger than 40, even though ADEA protection
begins at that age. See, e.g., Pace v. Southern Ry. Sys., 701
F.2d 1383, 1387 (11th Cir.) ("Because of the value of experience
rarely are sixty-year-olds replaced by those under forty."
(quoting McCorstin v. United States Steel Corp., 621 F.2d 749,
754 (5th Cir.1980))), cert. denied, 464 U.S. 1018, 104 S.Ct. 549,
78 L.Ed.2d 724 (1983).
against rigid application of a McDonnell Douglas[-type] test."),
cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983).
Noting the difficulty of tailoring the McDonnell Douglas test to a
specific case, we have held that the essence of any prima facie
case test is simply "whether the plaintiff has presented sufficient
evidence to provide a basis for an inference that age was a factor
in the employment decision." Pace, 701 F.2d at 1387. Any
particular test that a court chooses to use in evaluating this
question is merely a "tool" to facilitate this evaluation. Id.
The district court treated this case as a "failure to hire"
case, as opposed to a "reduction in force" case. Although, as
discussed above, case law suggests that the standard for
establishing a prima facie case depends on whether the case
concerns a reduction in force as opposed to a termination or a
failure to hire, compare Earley, 907 F.2d at 1082 (listing prima
facie case criteria for reduction-in-force cases), with Carter, 870
F.2d at 582 (listing prima facie case criteria for termination and
failure-to-hire cases), the instant appeal demonstrates why, as we
noted in Pace, employment discrimination cases are not easily
categorized and why any prima facie case test must be flexible. In
a sense, the position of manager of Newspapers First's Miami office
was a new job as a result of the merger of KRNS and MMTM, and
Isenbergh's and Malloy's previous positions disappeared. From this
viewpoint, the case is one of a failure to hire. Because the
candidates considered for this "new" position, however, were all
from within the two merging companies, the situation was not the
same as in a standard failure-to-hire case. In essence, because of
the merger, there was a reduction in force from two Miami managers
to one. In deciding whether Isenbergh has established a prima
facie case, we need not crudely categorize the facts as involving
either a failure to hire or a reduction in force. Rather, we
examine the facts of the case and decide "whether the plaintiff has
presented sufficient evidence to provide a basis for an inference
that age was a factor in the employment decision." Pace, 701 F.2d
at 1387.
If Isenbergh has succeeded in presenting a prima facie case,
we then examine whether Newspapers First has satisfied its burden
of producing evidence that the hiring of Malloy over Isenbergh was
based on some "legitimate, nondiscriminatory reason." Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089,
1094, 67 L.Ed.2d 207 (1981). This burden on the employer is one of
production, not persuasion. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). If
the burden is met, the McDonnell Douglas framework "drops out" of
the case, leaving the jury to decide the ultimate question of
whether the employer intentionally discriminated on the basis of
age. Hicks, 509 U.S. at 510-11, 113 S.Ct. at 2749.
Hicks holds that the plaintiff must show not only that the
employer's proffered reason for the adverse employment decision was
false, but also that discrimination was the real reason. Id. at
515-17, 113 S.Ct. at 2752. In Hicks, a case involving alleged
employment discrimination based on race, the Supreme Court held
that the plaintiff was not entitled to judgment as a matter of law
when the trier of fact disbelieved the employer's proffered
nondiscriminatory reason. The district court, which was the trier
of fact, did not believe the defendant's reason for firing the
plaintiff but also did not think that the plaintiff had proved that
race was the real reason for his discharge. The court therefore
entered judgment for the defendant. The Eighth Circuit reversed,
arguing that the discrediting of the defendant's proffered reason
entitled the plaintiff to judgment as a matter of law. The Supreme
Court in turn reversed the court of appeals and remanded the case
for further proceedings consistent with its opinion, presumably
reinstating the judgment entered in favor of the defendant by the
district court as the trier of fact. We recognize that the effect
of our decision is not to reinstate the verdict for the plaintiff
entered by the jury as the trier of fact but rather to express our
agreement with the trial court that as a matter of law
discrimination was not shown. Nonetheless, we believe that Hicks
is instructive here and persuades us that the district judge did
not err in granting the Rule 50(b) motion.
Evidence allowing the trier of fact to discredit an
employer's proffered reason for an adverse employment decision thus
alone is not enough for a plaintiff to survive a motion for
judgment as a matter of law. Isenbergh disputes this proposition,
relying on the following language from Hicks:
The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant's proffered reasons, will
permit the trier of fact to infer the ultimate fact of
intentional discrimination, ... [and] upon such rejection,
"[n]o additional proof of discrimination is required,"....
Id. at 510-11, 113 S.Ct. at 2749 (quoting Hicks v. St. Mary's Honor
Center, 970 F.2d 487, 493 (8th Cir.1992) (appellate court decision
in same case)). The first sentence of this passage shows that
disbelief of the employer's proffered reason may be enough for a
plaintiff to survive a motion for judgment as a matter of law. The
second sentence is potentially confusing in saying that rejection
of the proffered reason "will permit " the inference of
discrimination. In the context of both sentences together,
however, it is clear that rejecting the proffered reason is not
always sufficient to show discrimination. The Hicks Court
clarified this distinction in a footnote:
Contrary to the dissent's confusion-producing analysis, there
is nothing whatever inconsistent between [the statement quoted
above] and our later statements that (1) the plaintiff must
show "both that the reason was false, and that discrimination
was the real reason," and (2) "it is not enough ... to dis
believe the employer." Even though (as we say here) rejection
of the defendant's proffered reasons is enough at law to
sustain a finding of discrimination, there must be a finding
of discrimination.
Id. at 511 n. 4, 113 S.Ct. at 2749 n. 4.
Therefore, under Hicks, a plaintiff must show both that the
defendant's reason was false and that the real reason was
discrimination. Id. at 511 n. 4, 515-17, 113 S.Ct. at 2749 n. 4,
2752. A finding that the defendant's reason was false is alone not
enough; there must also be a finding of discrimination. The
finding of discrimination may be inferred, though, from the
disbelief. Evidence from which the jury may reasonably disbelieve
the employer's proffered reason is not necessarily enough to
support a verdict for the plaintiff; the jury also must be able to
infer from this disbelief or from other evidence that the
employer's actual reason was discrimination. Id. at 510-11 & n. 4,
113 S.Ct. at 2749 & n. 4. Therefore, if the evidence in this case
reasonably allows both the inference that Newspapers First's
alleged reason for the employment decision was false and the
inference that the real reason was age discrimination, then we must
let the jury verdict stand.
C.
We find that Isenbergh has presented a prima facie case. The
circumstances surrounding the merger of the two companies and the
way in which Malloy was selected for the new position suggest that
the newly formed company might have wanted to avoid hiring
employees of Isenbergh's age. Isenbergh was in the protected age
group, and he was adversely affected by Newspapers First's decision
to select Malloy, who is sixteen years younger than Isenbergh, as
the new manager.2 Moreover, because the decisionmakers for
Newspapers First were familiar with Isenbergh's performance in his
work for KRNS, we can infer from the fact that he was granted an
interview that Isenbergh was at least at some level qualified for
the new job. Without deciding the ultimate question of whether a
jury could reasonably infer intentional discrimination, we believe
that Isenbergh has satisfied this part of the McDonnell Douglas-
Burdine burden-shifting analysis.
We next inquire whether Newspapers First has met its burden
of producing evidence of a legitimate, nondiscriminatory reason for
offering the job to Malloy rather than to Isenbergh. We find that
2
That Malloy was also a member of the class of persons
protected by the ADEA does not render insufficient Isenbergh's
prima facie showing. See O'Connor v. Consol. Coin Caterers
Corp., --- U.S. ----, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).
it has done so. It has produced evidence showing that the
principal criterion used in determining who would get the job was
management ability, as assessed at the interviews and by evaluating
past performance.
Finally, we examine whether Isenbergh has produced evidence
that Newspapers First's proffered reason was false and that the
real reason was age discrimination. Looking at all the evidence in
the light most favorable to Isenbergh, and drawing all reasonable
inferences in his favor, we find that even if a reasonable jury
could have disbelieved Newspapers First's proffered reason for
hiring Malloy, there was no evidence from which a reasonable
inference could be drawn that age discrimination was the actual
reason. We stress that this holding is not inconsistent with our
conclusion that Isenbergh has presented a prima facie case of
discrimination. See Carter v. City of Miami, 870 F.2d 578, 585
(11th Cir.1989) ("[T]he mere establishment of a prima facie case of
discrimination ... does not alone establish a genuine issue of
material fact sufficient to go to the jury.").
As discussed above, under Hicks, evidence based on which the
employer's proffered reason may be disbelieved may be enough to
permit the trier of fact to infer discrimination. In this case,
however, it is not. Once the employer asserts a reason for the
adverse employment decision, the case is in equipoise, and the
McDonnell Douglas-Burdine framework becomes irrelevant. Walker v.
NationsBank of Florida, N.A., 53 F.3d 1548, 1557 (11th Cir.1995).
The plaintiff has the burden of proving discrimination, so if the
case remains in equipoise, the plaintiff must lose as a matter of
law. Disbelief of the employer's reason is enough to push the case
beyond equipoise and support a judgment for the plaintiff only if
the disbelief is coupled with a reasonable belief that
discrimination was the true reason. In Hicks, the trier of fact
(the district court) disbelieved the defendant's reason but did not
believe that the plaintiff had proved discrimination, and therefore
the plaintiff lost. In the case at bar, similarly, we find that
there is no evidence from which a reasonable jury could have
inferred the "ultimate fact of intentional discrimination." See
Hicks, 509 U.S. at 511, 113 S.Ct. at 2749.
The alternation ranking system, by which Newspapers First
evaluated managers from all around the country, may or may not have
been a fair way to evaluate the candidates for the new job.
Looking at it in the light most favorable to Isenbergh, Newspapers
First may not have been completely truthful in claiming that this
somewhat objective criterion was used to evaluate the candidates.
Malloy did not rank first in the selection process, and the
competition for the new job may effectively have been only between
Malloy and Isenbergh, the two candidates from Miami, which makes
the process appear somewhat suspect. Isenbergh's testimony that
his interview was shorter than planned and that Anthony talked on
the phone during most of the time, if believed, casts further doubt
on the selection process. It would not have been mere speculation
for the jury to disbelieve Newspapers First's explanation of the
selection process. There is no evidence, however, that the real
selection process used age as a criterion. A sixty-three-year-old
candidate was rated more highly than Isenbergh overall, and more
highly than both Malloy and Isenbergh in terms of managerial
skills. Most likely, Kosanke and Anthony chose Malloy because they
liked the way he had performed in the past. The alternation
ranking system may have been a smoke screen hiding the fact that
Newspapers First held Malloy in higher regard than Isenbergh, but
there is no evidence from which a jury could reasonably believe
that it was a smoke screen hiding the fact that Malloy was hired
because of his relative youth.
In sum, there was not sufficient evidence of intentional
discrimination to allow Isenbergh's claim to be decided by the
jury. Therefore, the district court was correct in granting
Newspapers First's motion for judgment as a matter of law.
III.
Newspapers First argues that Isenbergh's failure to remain
employed and thereby mitigate his damages cuts off any claim that
he may have. In view of our ruling, we need not and do not address
this issue.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.