Isenbergh v. Knight-Ridder

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________

No. 94-4769
_________________________

PAUL ISENBERGH,

Plaintiff-Appellant,

versus
KNIGHT-RIDDER NEWSPAPER SALES, INC.,
n/k/a NEWSPAPERS FIRST, INC., AND
KNIGHT-RIDDER, INC.,
Defendants-Appellees.

_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 19, 1996)

Before EDMONDSON and DUBINA, Circuit Judge, and ENGEL*, Senior
Circuit Judge.

*
Honorable Albert J. Engel, U.S. Circuit Judge for the Sixth Circuit, sitting
by designation.
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Isenbergh v. Knight-Ridder Newspaper

PER CURIAM:

We withdraw altogether our earlier opinion dated June 11, 1996,
and published at 84 F.3d 1380. Our decision for the case remains the

same. We think today's opinion may in some ways better explain our

thoughts, however.

Plaintiff Paul Isenbergh appeals the district court's grant of
judgment as a matter of law for defendant Knight-Ridder Newspaper

Sales, Inc. ("KRNS"), n/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 renewed its motion for judgment as a matter of law
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

discrimination based on age, we affirm.

I.

In 1990, KRNS merged with Million Market Newspapers/Times
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Isenbergh v. Knight-Ridder Newspaper

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--
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Isenbergh v. Knight-Ridder Newspaper

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
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Isenbergh v. Knight-Ridder Newspaper

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, 115 S. Ct. 2557 (1995). In other words, we apply the same
standard as that applied by the district court. Carter v. City of Miami, 870
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Isenbergh v. Knight-Ridder Newspaper

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.
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 (1973). See Carter v. City of Miami,
870 F.2d 578, 581 (11th Cir. 1989). Plaintiff's burden in proving a prima

facie case is light. See Brown v. American Honda Motor Co., 939 F.2d
946, 949 (11th Cir. 1991).
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Isenbergh v. Knight-Ridder Newspaper

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. The Supreme Court intended this
framework to be flexible, see id. at 802 n.13, rather than "mechanized, or
ritualistic," United States Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711, 715 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978)). This court has enunciated various reformulations of the

McDonnell Douglas test. For example, 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 an ADEA 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.
The district court treated this case as a "failure to hire" case, as
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Isenbergh v. Knight-Ridder Newspaper

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. Instead, 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.
No. 94-4769 9
Isenbergh v. Knight-Ridder Newspaper

We conclude that Isenbergh presented a prima facie case.

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.1 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.

B.

1. Newspapers First's Burden of Proffering a Non-
Discriminatory Rationale For the Challenged Decision

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.

1
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., 116 S. Ct. 1307 (1996).
No. 94-4769 10
Isenbergh v. Knight-Ridder Newspaper

See generally Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

254 (1981). This burden on the employer is one of production, not
persuasion. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (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, 113 S. Ct.

at 2749. Here, Newspapers First met its burden of production by asserting

that Isenbergh was denied the managerial position because he was the less
qualified of two applicants for the same job.

2. Isenbergh's Burden of Proving that Age Was the Real Reason
For the Challenged Hiring Decision

Newspapers First having met its burden of production, it fell to
Isenbergh to show that the employer's proffered reason for the adverse

employment decision was false and that discrimination was the real reason.

Id. at 2752. On this point, we worry that there is some conflict in the case
law of this circuit. The conflict concerns whether a plaintiff in Isenbergh's
position carries his burden of proof on discrimination just by showing a

basis in the record for disbelief of the employer's reason. The origin of the

conflict is the Supreme Court's opinion in Hicks.

Hicks involved alleged employment discrimination based on race. It
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Isenbergh v. Knight-Ridder Newspaper

decided a narrow question which arose from a bench trial. The Hicks Court

held that the plaintiff was unentitled to judgment as a matter of law even
though the trier of fact -- a district judge -- disbelieved the employer's

proffered nondiscriminatory reason. The district judge did not believe the

employer'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
district court, therefore, entered judgment for the defendant employer. The

Eighth Circuit reversed, deciding that the discrediting of the employer'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, reinstating the judgment
entered in favor of the defendant by the district court as the trier of fact.
Because Hicks was a case that had been fully tried before a judge sitting as
the trier of fact, Hicks decided nothing about either Rule 50 (judgment as a
matter of law in actions tried by jury) or Rule 56 (summary judgment) in

employment discrimination cases.

This case is about Rule 50. Isenbergh argues that never can an
employer be entitled to a judgment as a matter of law in an employment

discrimination case if the evidence is sufficient to allow the jury to
disbelieve the employer's proffered reason for the employment action. To

support this argument, Isenbergh looks beyond the decision in Hicks, that
is, its holding, and stresses some language lifted from the opinion in Hicks:
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Isenbergh v. Knight-Ridder Newspaper

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 2749 (quoting Hicks v. St. Mary's Honor Center, 970 F.2d 487, 493 (8th

Cir. 1992)) (emphasis added).
We do not see these sentences as giving force to Isenbergh's
argument. The first sentence of this passage shows that disbelief of the

employer's proffered reason may (and by implication, may not) be enough
for a plaintiff to overcome an employer's motion for judgment as a matter
of law. The second sentence is potentially more confusing in saying that

rejection of the proffered reason "will permit" the inference of
discrimination. But keeping in mind that the word "will" sometimes means
"can" (for example, "can permit") or "capable of," (for example, "capable of

permitting"), both sentences, when read together, at least strongly suggest

that rejecting the employer's proffered reason is not always sufficient to
allow a finding of discrimination, although sometimes "(particularly if

disbelief is accompanied by a suspicion of mendacity)" it might be. The
Hicks Court spoke in a similar way in the accompanying 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
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Isenbergh v. Knight-Ridder Newspaper

real reason," and (2) "it is not enough . . . to disbelieve 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 2749 n.4.
In the context of the Hicks decision and the whole opinion, we think

the phrase "(as we say here)" probably means "(as we say in this case, that
is, in the matter before us)": given the record in Hicks, itself, the rejection
of defendant's proffered reasons was enough -- in Mr. Hicks' case, no more

proof was required -- to have supported a finding of discrimination.
While the language from the Hicks opinion might be capable of being
read in two or more ways, the most important thing to recall about Hicks is
plain: the case before the Court was not about Rule 50, a jury trial, or a

verdict for plaintiff. Thus, the Court was deciding nothing about a case that
presents those circumstances.

Some confusion exists in the law of this circuit about whether Hicks
always precludes judgments as a matter of law for employers whenever
there is a plausible basis on which to disbelieve the employer's proffered

reason for the employment decision in question. Howard v. BP Oil Co., 32
F.3d 520, 527 (11th Cir. 1994), for example, concluded that under Hicks, "the

fact finder's rejection of defendant's proffered reasons is sufficient
No. 94-4769 14
Isenbergh v. Knight-Ridder Newspaper

circumstantial evidence upon which to base a judgment for the plaintiff."2
Howard reversed a summary judgment for the defendant where the record

provided a basis for the disbelief of the defendant's proffered explanation.
If Howard was purporting to set out a legal principle that had
application beyond its own facts, Howard seems inconsistent in this regard

with the holding in, at least, Walker v. NationsBank, 53 F.3d 1548 (11th Cir.
1995), and with some of the language in Batey v. Stone, 24 F.3d 1330 (11th
Cir. 1994). See NationsBank, 53 F.3d at 1557-58 (accepting plaintiff's

contention that defendant's proffered reasons were lies, and nonetheless

affirming directed verdict for defendant); Batey, 24 F.3d at 1334 n.12 (noting
that after Hicks, focus in discrimination cases is no longer falsity of
employer's explanation, but whether plaintiff has proved intentional

discrimination).
We doubt that Howard's words are supported by the reasoning of

Justice Scalia's opinion for the Court in Hicks, and we believe that Howard
is mistaken when it reads Hicks as controlling kinds of cases that were not
before the Supreme Court in Hicks.3 Again, Hicks only held that a judge

2
Howard is not the court's only opinion that says this kind of thing. Howard,
however, may possibly be the only case in which the facts before the court were
such as to make the statement determinative of the outcome.

3
While the Howard court referred to St. Mary's Honor Center v. Hicks in
shortened form as "St. Mary's," we refer to the case as "Hicks" because that
name is the more widely used shortened form of the case name and because
Hicks is the name of the first non-governmental party.
No. 94-4769 15
Isenbergh v. Knight-Ridder Newspaper

may, after a bench trial, disbelieve the employer's proffered reason for a

hiring decision and yet still grant judgment to the employer. Hicks, 113
S.Ct. at 2748-49. So, despite the Hicks language quoted above, we have no

confidence that the Hicks decision dictates to circuit and district judges, or
even was intended to suggest, that every time the evidentiary record in a
case could support a jury's disbelief of the employer's explanation for the

pertinent employment action, no court may grant a motion for judgment as

a matter of law to the employer (or grant to an employer summary
judgment) in an employment discrimination case. In our view, Hicks, taken

as a whole, more likely supports a different conclusion: in such

circumstances, the watchword would be not "every time," but "sometimes."
According to Hicks, cases will exist where certain facts are
established at trial, among them facts supporting the "dis-believability" (put

differently, the unbelievableness) of the employer's reasons for the
challenged employment decision, and where nonetheless the application

of the law to the facts established at trial will yield a decision by the

factfinder for the employer. Accepting Hicks's holding, we still also think
there will be some cases in which the record, viewed in the light most
favorable to the plaintiff, supports the dis-believability of the employer's

reason; and yet the application of the law to the evidence demands a

judgment for the employer as a matter of law.

Assume the following situation by way of example. A defendant sues,
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Isenbergh v. Knight-Ridder Newspaper

alleging he was terminated based on his membership in a protected class.

The employer responds with a neutral reason for the hiring decision: the
employee was terminated because he was late nine times. After a bench

trial, the judge finds, among other facts, that the defendant was late not

nine, but seven times. Relying on Hicks, however, the judge determines
that this case is one where the employer's reason should be disbelieved,
but where application of discrimination law to the instant facts (including
dis-believability) nonetheless supports a judgment for the employer. This

result is the one specifically authorized by Hicks. See 113 S.Ct. at 2748-49.
The issue in Howard and NationsBank and the issue alluded to in the
original panel opinion here is essentially this one: might there be a case

where the application of law to facts can proceed in a similar way, but at the
summary judgment stage or for the purposes of judgment as a matter of
law? To continue with the prior example, suppose the employer offers the

nine-latenesses explanation, and the record in a jury trial shows that no

reasonable jury could find but that the plaintiff was late only seven times.
Assuming the employee made out a bare prima facie case and nothing else

points to discrimination, may the employer -- at least, sometimes -- be

entitled to a judgment as a matter of law even though the jury could (indeed,
must) disbelieve the employer's stated reason? The Howard panel, reading

Hicks, seems to say "no."
We suspect, however, that the answer is "yes" -- that NationsBank,
No. 94-4769 17
Isenbergh v. Knight-Ridder Newspaper

not Howard, is the more correct statement of the law. Howard's

understanding of Hicks would preclude a judgment as a matter of law in
some cases where historically (pre-Hicks) such judgment was required. But

the Hicks opinion says that trial courts and reviewing courts should not
treat discrimination differently from other ultimate questions of fact. 113
S.Ct. at 2756. So, we are skeptical that the Supreme Court intended to

remove an entire category of cases from traditional consideration under

Fed.R.Civ.P. 50 or 56. See generally Earley v. Champion Intern. Corp., 907

F.2d 1077, 1080 (11th Cir. 1990) ("The summary judgment standard mirrors

the standard for a directed verdict under the Federal Rule of Civil Procedure
50(a), which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the

verdict.") (citations and internal quotation marks omitted); see also Rhodes
v. Guiberson Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc) (concluding
that when employer's reason is disbelieved, "we are convinced that

ordinarily such verdicts [for plaintiffs] would be supported by sufficient

evidence, but not always. The answer lies in our traditional sufficiency-of-
the-evidence analysis").

We doubt the Supreme Court intended to command such a dramatic
and hurtful-to-employers change in the law when the Court decided Hicks:

a decision which did not contract, but expanded, the universe of

discrimination cases where judgment for employers would be permissible.
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Isenbergh v. Knight-Ridder Newspaper

We believe the Supreme Court would not declare such an important new

rule -- the rule which Howard sees in Hicks -- in a case in which the new rule
plays no vital part in the decision. We think the Supreme Court would have
set out such an important new rule -- one that, in effect, partly nullifies two

of the Federal Rules of Civil Procedure -- conspicuously and plainly so that

no Article III judge could miss it. Simply put, we fear that what Howard says
about sufficient evidence is a mistake which was caused by extending

possibly ambiguous language in Hicks to decide a case (Howard) that
presented a question not decided in Hicks.
Having noted the ostensible4 conflict in the circuit's law and having
had our say about it, we return to the case before us now. Whatever

significance Howard might have, Howard does not control this case
because our examination of the record here indicates that Isenbergh failed

in creating an issue of fact about the dis-believability of the employer's
reason for the hiring decision.

C.

4
We say ostensible conflict because we observe that Howard is a summary
judgment case and that NationsBank is a Rule 50 case. This difference may be
important. We today do not mean to rule out the possibility that motions for
judgment as a matter of law in cases which have been fully tried, including the
cross-examination of witnesses, may be governed by some different principles
than those governing the grant or denial of summary judgment. So, the words of
the NationsBank opinion might be inconsistent with the words of the Howard
opinion, yet the two decisions might not be conflicting.
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Newspapers First 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.

And, Isenbergh's efforts to produce a basis to contradict Newspapers

First's nondiscriminatory justification do not suffice to create a jury

question on the issue of pretext. So, even if Howard is and ought to be the
law, and a plaintiff -- by providing a basis to doubt the employer's

justification -- can bar his employer's obtaining a judgment as a matter of
law, Isenbergh has still failed to do so in this case.

"[B]ecause the plaintiff bears the burden of establishing pretext [for
discrimination], he must present 'significantly probative' evidence on the
issue to avoid summary judgment." Young v. General Foods Corp., 840
F.2d 825, 829 (11th Cir. 1988) (quoting Celotex Corp. v. Catrett, 106 S.Ct.

2548, 2552-53 (1986) (discussing summary judgment standard)).

"Conclusory allegations of discrimination, without more, are not sufficient
to raise an inference of pretext or intentional discrimination where [a

defendant] has offered extensive evidence of legitimate, non-discriminatory

reasons for its actions." Young, 840 F.2d at 830.
In the discrimination context, we have stated that "[it] bears repeating

that a mere scintilla of evidence does not create a jury question." Carter v.

City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) (holding, in ADEA case, that

defendant was due judgment as matter of law where plaintiff failed to cast
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sufficient doubt on defendant's proffered non-discriminatory rationale).

And, in considering whether a plaintiff has presented a jury question on
pretext, we have required that the plaintiff point to facts which, if true,

would present a basis for the disbelief of the defendant's overall
justification. That the plaintiff calls into question some assertions made by

the defendant in support of defendant's justification is not enough. The
plaintiff must call into question the veracity of the defendant's ultimate
justification itself. See Brown v. American Honda Motor Co., 939 F.2d 946,

952-54 (11th Cir. 1991) (although plaintiff succeeded in contradicting some

facts alleged by defendant, plaintiff presented no jury question because
defendant's ultimate justification went essentially unchallenged).
Here, as noted above, Newspapers First's proffered rationale was that

Isenbergh was the less qualified of the two applicants for the job. In
support of this assertion, Newspapers First presented the jury with
evidence to show that Malloy, Isenbergh's competitor, managed a larger

office; that Isenbergh had difficulties agreeing to office budgets; that Malloy

was perceived by the decisionmakers as more of a team player; that Malloy

was near the top of the rankings under the alternation ranking system, while
Isenbergh ranked second-to-last; and that Malloy had dealt with a larger
number of major market newspapers than had Isenbergh. Also, the

evidence showed that the favorable past ratings Isenbergh pointed to

related to Isenbergh's sales, not managerial, experience.
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In the light of the extensive evidence supporting Newspapers First's

contention that it hired Malloy because it believed him the better-qualified
applicant, Isenbergh's efforts to prove Newspapers First's justification a

pretext for discrimination do not succeed in creating a jury question.

Isenbergh points out that he had successfully competed for a sales account

with Malloy in 1986, that he had consistently received raises, that the
alternation ranking system had not always been used, and that his would-be

employers appeared bored and disinterested during his interview. These
things provide a basis on which to question some facts offered by
Newspapers First in support of its decision; but they do not, in view of

Defendant's overwhelming evidence, provide a basis for contradicting
Newspapers First's ultimate justification: Malloy was more qualified. See
Brown v. American Honda Motor Co., 939 F.2d 946, 952-54 (11th Cir. 1991)
(although plaintiff presented evidence that defendant slighted the

procedures set out in its manual, plaintiff failed to create sufficient basis to
disbelieve defendant's ultimate reasons for selecting other applicant).

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 address this issue.
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Isenbergh v. Knight-Ridder Newspaper

For the foregoing reasons, the judgment of the district court is

AFFIRMED.