Combs v. Plantation Patterns

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-6922
________________________

D.C. Docket No. CV94-T-103-E

DARRELL COMBS,

Plaintiff-Appellee,

versus

MEADOWCRAFT, INC.
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
________________________

(February 20, 1997)

Before BIRCH, BLACK and CARNES, Circuit Judges.
CARNES, Circuit Judge:

Meadowcraft, Inc. appeals from a judgment entered against

it pursuant to a jury verdict in favor of Darrell Combs in this

Title VII race discrimination case. The jury found that

Meadowcraft denied Combs a supervisory position because of his

race. The dispositive issue in the appeal is whether Combs

produced evidence sufficient to allow a reasonable factfinder to

disbelieve Meadowcraft's proffered nondiscriminatory reasons for

failing to promote Combs. We conclude that he did not, and that

Meadowcraft was entitled to judgment as a matter of law for that

reason.

Part I of this opinion is a discussion of the facts. In Part

II, we summarize the procedural history of this case, followed by

a brief discussion of the standard of review in Part III. Our

discussion of the law and application of it to the facts is

contained in Part IV, which has four subparts.

Subparts A through C of Part IV contain an explication of the

legal framework applicable to discrimination cases in light of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.
Ct. 2742 (1993). It is in those parts of this opinion that we

answer the dicta contained in the recent panel opinion in Isenbergh

v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436 (11th Cir.

1996), which is critical of the holding in Howard v. BP Oil Co., 32

F.3d 520 (11th Cir. 1994), and by implication, of a number of our

other decisions in line with it. Howard and those decisions like

2
it hold that after a plaintiff has established a prima facie case,

evidence from which the factfinder could find that all of the

employer's proffered reasons for the challenged job action are

pretextual entitles the plaintiff to have the factfinder decide the

ultimate issue of discrimination. We answer the Isenbergh panel's

criticism of the Howard line of decisions and explain why the

holding of those cases is the law of this circuit, as well as at

least eight other circuits.

Subpart D of Part IV applies the law to the facts of this

case, and Part V contains our conclusion.

I. BACKGROUND FACTS

Meadowcraft owns and operates a manufacturing plant in Wadley,

Alabama. The plant produces outdoor patio furniture, which is sold

under the brand name "Plantation Patterns." The plant's workforce

is divided into a number of departments, including materials,

forming, welding, painting, packing, and shipping. The departments

have various shifts, and there are supervisors for each shift.

In January 1992, Meadowcraft hired Combs, who is black, to

work in the plant as a "crimp and form" operator. Shortly

thereafter, Combs was promoted to "material handler" and given a

pay raise. Combs was supervised by George Anderson and Edward

Lane. Both Anderson and Lane are black, and both worked as

supervisors in the plant's welding department.

Shortly after Combs started working at Meadowcraft, he

introduced himself to John Hart, the plant superintendent. Combs

told Hart that he had a degree in computer science from Alabama A

3
& M and that he was interested in doing office work that would

allow him to use his degree. In June 1992, Hart made arrangements

with the plant manager for Combs to do a temporary assignment

programming personal computers in the plant and preparing

spreadsheets. At some point, those arrangements included

reclassifying Combs to be a plant "lead man" -- meaning a quasi-

supervisor-- even though he was not actually doing lead man work or

supervising anyone. When Combs was nominally promoted to lead man,

his pay was increased.

Prior to his pay raise, Combs held a second job as manager at

a low-income apartment complex at which he was responsible for

maintenance, cleaning, and painting, as well as supervising

teenagers who did maintenance work at the complex. After Combs'

pay raise, he quit his second job.

On several occasions, when Meadowcraft officials from

Birmingham headquarters visited the plant, Combs was asked to

"hide" from the officials. At trial, Combs implied that he was

asked to hide because he is black, but he admitted on cross-

examination that he was never told that was the reason. Hart

testified that Combs was asked to hide because headquarters had not

approved his computer job, and that he had explained that to Combs.

While Combs was assigned to the temporary computer project,

Hart asked him whether he would be interested in being a supervisor

at the plant. Combs said that he was interested. Although Combs

indicated an interest in supervisory positions in both the painting
and welding departments, he was awarded neither position. Both

4
positions were awarded to white persons. At trial, Combs conceded

that the person who was made painting supervisor was better

qualified than he, and Combs abandoned his discrimination claim

with respect to that position. Meadowcraft's failure to promote

Combs to the welding supervisor position was the only failure-to-

promote claim that was submitted to the jury, and it is the only

claim in controversy in this appeal.

Meadowcraft awarded the welding supervisor position to Fred

Walker in July 1992. Walker served in that capacity for ten or

eleven days, but then was reassigned to work temporarily as a

supervisor in the packing department. That temporary reassignment

lasted for about a year, after which Walker returned to his

position as a supervisor in the welding department.

Around November 1992, after Combs had completed his temporary

computer assignment, he was asked to assist with a "bar code"

scanning project in the plant's packing department -- where Walker

was then a temporary supervisor. By December 1992, the scanning

project had been put on hold, and Hart told Combs that he had run

out of temporary assignments for him. Hart suggested that Combs

return to his position as a material handler in the plant. Combs

declined to return to his material handler job, and his employment

at Meadowcraft came to an end on December 18, 1992.1

1
Meadowcraft contends that Combs resigned voluntarily. In his
complaint and at trial, Combs contended that he was not offered the
option of returning to his job as material handler, and that he was
laid off or forced to quit. However, the jury specifically
rejected Combs' discriminatory termination claim, and the only
claim at issue on appeal is Combs' failure-to-promote claim.

5
 II. PROCEDURAL HISTORY

In February 1993, Combs filed a charge with the Equal

Employment Opportunity Commission ("EEOC"), alleging unlawful

racial discrimination. After receiving his right-to-sue letter

from the EEOC, Combs filed suit in the Middle District of Alabama,

alleging claims based on Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and on 42 U.S.C. § 1981. Combs sought

recovery under the following race discrimination theories: (1)

that Meadowcraft terminated him from his employment because of his

race; (2) that Meadowcraft subjected him to impermissible racial

harassment; and (3) that Meadowcraft denied him a supervisory

position because of his race. Combs also appended a state law

claim for the tort of outrage, but the district court dismissed

that claim with prejudice, and Combs has not appealed that

dismissal.

Combs' three race discrimination claims were tried to a jury

on August 21-25, 1995. At trial, Meadowcraft proffered evidence in

support of three legitimate, nondiscriminatory reasons for its

decision to promote Walker instead of Combs. Those reasons were:

(1) Walker's superior welding experience; (2) the recommendations

of supervisors Lane and Anderson; and (3) Walker's superior

supervisory experience. At trial, Meadowcraft moved for judgment

as a matter of law both at the close of the plaintiff's case and at

the close of all the evidence. The district court denied those

motions, and the case was submitted to the jury.

6
 The jury unanimously rejected Combs' discriminatory

termination claim, but could not reach a unanimous verdict on the

remaining two claims. Thereafter, the parties agreed that the

remaining two claims could be decided by majority verdict. The

jury by a majority vote determined that Combs had not proven his

claim for discriminatory harassment, but that he had proven his

claim that he was denied a supervisory position because of his

race. The jury awarded Combs compensatory damages of $76,552 and

punitive damages of $42,700.

After the jury returned its verdict, Meadowcraft renewed its

motion for judgment as a matter of law and made an alternative

motion for a new trial. In support of those motions, Meadowcraft

argued (among other things) that Combs had failed to put forward

sufficient evidence to permit the jury to disbelieve the

nondiscriminatory reasons that Meadowcraft had proffered in

explanation of its decision to promote Walker to welding supervisor

instead of Combs. The district court denied both the principal and

alternative motions, and this appeal followed.2

2
On appeal, Meadowcraft contends that it is entitled to a new
trial, even if it is not entitled to judgment as a matter of law.
Meadowcraft asserts three grounds in support of that contention:
(1) insufficiency of the evidence; (2) prejudicial admission of
inadmissible evidence; and (3) excessive damages. Because we
conclude that Meadowcraft is entitled to judgment as a matter of
law, we do not discuss further Meadowcraft's arguments in favor of
a new trial.

7
 III. STANDARD OF REVIEW

We review de novo a district court's denial of a defendant's

renewed motion for judgment as a matter of law, applying the same

standards as the district court. Sherrin v. Northwestern Nat'l

Life Ins. Co., 2 F.3d 373, 377 (11th Cir. 1993). Those standards

require us to consider "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct.

2505, 2512 (1986). In conducting our review:

[W]e consider all the evidence, and the inferences drawn
therefrom, in the light most favorable to the nonmoving
party. If the facts and inferences point overwhelmingly
in favor of one party, such that reasonable people could
not arrive at a contrary verdict, then the motion was
properly granted. Conversely, if there is substantial
evidence opposed to the motion such that reasonable
people, in the exercise of impartial judgment, might
reach differing conclusions, then such a motion was due
to be denied and the case was properly submitted to the
jury.

Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989)

(footnotes omitted).

Under the foregoing standard, the nonmoving party must provide

more than a mere scintilla of evidence to survive a motion for

judgment as a matter of law: "[T]here must be a substantial

conflict in evidence to support a jury question." Id. To

summarize, we must consider all the evidence in the light most

favorable to Combs and determine "whether or not reasonable jurors

could have concluded as this jury did based on the evidence

8
presented." Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.

1993) (citation and internal quotation marks omitted).

IV. WHETHER MEADOWCRAFT WAS ENTITLED TO JUDGMENT
AS A MATTER OF LAW

A. The Issue -- Once a Prima Facie Case Has Been
Established, Does Evidence Sufficient to
Disprove All of the Employer's Proffered
Reasons Preclude Judgment as a Matter
of Law for the Employer?

Meadowcraft and Combs disagree both as to the applicable law

and the weight of the evidence. Meadowcraft contends that it is

entitled to judgment as a matter of law because (1) Combs failed to

produce evidence sufficient to allow a reasonable factfinder to

disbelieve its proffered nondiscriminatory reasons for promoting

Walker instead of Combs, and (2) even if Combs had produced such

evidence, he still failed to present evidence that discrimination

was the true reason for the decision. According to Meadowcraft, it

is entitled to judgment as a matter of law even if a reasonable

factfinder could have rejected each of its proffered

nondiscriminatory reasons for promoting Walker instead of Combs,

because Combs had the additional burden of demonstrating that

Meadowcraft's decision was motivated by racial animus. For that

proposition, Meadowcraft relies primarily on Walker v. NationsBank

of Florida, 53 F.3d 1548 (11th Cir. 1995), and dicta contained in

this circuit's recent decision in Isenbergh v. Knight-Ridder

Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996).

Combs takes issue with Meadowcraft's view of the law and the

evidence. First, Combs contends that he put forward sufficient

9
evidence to permit a reasonable factfinder to disbelieve

Meadowcraft's proffered nondiscriminatory reasons for its decision,

and he argues that no further evidence of discrimination is

required for the jury's verdict to be sustained. Combs relies

primarily on this Court's decision in Howard v. BP Oil Co., 32 F.3d

520 (11th Cir. 1994), as well as the Supreme Court's landmark

decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.

Ct. 2742 (1993). Alternatively, Combs contends that he put forward

sufficient additional evidence of discriminatory intent to support

the jury's verdict -- even if rejection of Meadowcraft's proffered

nondiscriminatory reasons were not enough, when coupled with his

prima facie case, to support a finding of discrimination.3

We turn first to the parties' legal arguments. In light of

the parties' differing views of the law governing Title VII

discrimination claims that rely on circumstantial evidence, and the

arguments that the parties make in support of those views, we think

it appropriate to examine the applicable law in some detail. Such

a review is especially appropriate in light of the Isenbergh

panel's recent observation in dicta that, "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

3
According to Combs' alternative theory, the jury's verdict is
supported by evidence that Meadowcraft had no established criteria
for promotion to supervisor and only two out of twelve plant
supervisors were black. We reject that theory without detailed
discussion, because the evidence offered to support it was
undeveloped and without analytic foundation. See, e.g., Brown v.
American Honda Motor Co., 939 F.2d 946, 952-53 (11th Cir.) (noting
that statistics without analytic foundation are "virtually
meaningless"), cert. denied, 502 U.S. 1058, 112 S. Ct. 935 (1992).

10
plausible basis on which to disbelieve the employer's proffered

reason for the employment decision in question," 97 F.3d at 442.

We believe that any confusion about this question in our

circuit's law -- defined by holdings, not dicta -- is limited, and

we hope that our discussion will limit that confusion even more.

As we will discuss, there is a substantial line of cases in this

circuit that adequately and accurately sets forth the legal

principles governing the nature and quantum of evidence necessary

to permit a jury to infer discrimination. Before turning to those

cases, however, we will review briefly the basic legal framework

governing discrimination cases that are based on circumstantial

evidence.

B. The Basic Framework Governing Discrimination Cases
Based on Circumstantial Evidence

Despite a Title VII plaintiff's failure to present direct

evidence of discrimination, he may nevertheless present sufficient

circumstantial evidence of discrimination to create a jury

question. In evaluating Title VII claims supported by

circumstantial evidence, we use the now-familiar framework

established by the United States Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.

Ct. 1089 (1981). Under that framework, the plaintiff has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at

11
1824; Burdine, 450 U.S. at 253-54 & n.6, 101 S. Ct. at 1093-94 &

n.6.

Establishment of the prima facie case in effect creates
a presumption that the employer unlawfully discriminated
against the employee. If the trier of fact believes the
plaintiff's evidence, and if the employer is silent in
the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact
remains in the case.

Burdine, 450 U.S. at 254, 101 S. Ct. at 1094 (footnote omitted).

The effect of the presumption of discrimination created by

establishment of the prima facie case is to shift to the employer

the burden of producing legitimate, nondiscriminatory reasons for

the challenged employment action. McDonnell Douglas, 411 U.S. at

802, 93 S. Ct. at 1824; Burdine, 450 U.S. at 254, 101 S. Ct. at

1094. To satisfy that burden of production, "[t]he 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." Burdine, 450 U.S. at 254-55, 101 S. Ct at

1094 (citation and footnote omitted). "[T]o satisfy this

intermediate burden, the employer need only produce admissible

evidence which would allow the trier of fact rationally to conclude

that the employment decision had not been motivated by

discriminatory animus." Id. at 257, 101 S. Ct. at 1096 (emphasis

added).

If a defendant carries its burden of producing legitimate,

nondiscriminatory reasons for its decision, the presumption of

discrimination created by the McDonnell Douglas framework "drops

12
from the case," and "the factual inquiry proceeds to a new level of

specificity." Burdine, 450 U.S. at 255 & n.10, 101 S. Ct. at 1094-

95 & n.10. However, elimination of the presumption does "not imply

that the trier of fact no longer may consider evidence previously

introduced to establish a prima facie case." Id. at 255 n.10, 101

S. Ct. at 1095 n.10. As the Supreme Court has explained:

A satisfactory explanation by the defendant destroys the
legally mandatory inference of discrimination arising
from the plaintiff's initial evidence. Nonetheless, this
evidence and inferences properly drawn therefrom may be
considered by the trier of fact on the issue of whether
the defendant's explanation is pretextual. Indeed, there
may be some cases where the plaintiff's initial evidence,
combined with effective cross-examination of the
defendant, will suffice to discredit the defendant's
explanation.

Id.

Once a defendant satisfies its intermediate burden of

production, and the initial presumption of discrimination

accompanying the prima facie case has been eliminated, the

plaintiff has the opportunity to discredit the defendant's

proffered explanations for its decision. According to the Supreme

Court:

[The plaintiff] now must have the opportunity to
demonstrate that the proffered reason was not the true
reason for the employment decision. ... [The plaintiff]
may succeed in this either directly by persuading the
court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.

Id. at 256, 101 S. Ct. at 1095 (emphasis added) (citation omitted).

In other words, the plaintiff has the opportunity to come forward

with evidence, including the previously produced evidence

establishing the prima facie case, sufficient to permit a

13
reasonable factfinder to conclude that the reasons given by the

employer were not the real reasons for the adverse employment

decision. Id.; McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at
1825.

C. The Effect of Evidence Sufficient to Permit
Rejection of the Employer's Proffered
Nondiscriminatory Reasons

1. The Supreme Court's Hicks Opinion

The framework for evaluating discrimination cases based on

circumstantial evidence, which we have just discussed, had been

established for some time when the Supreme Court decided St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).

Before the Hicks decision, however, the circuits had split over the

effect of a decision by the factfinder that the proffered

nondiscriminatory reasons given by the employer were not the real

reasons for its employment decision. Some of the circuits had held

that a finding of pretext mandated a finding of illegal

discrimination, while others had held that a finding of pretext did

not. See Hicks, 509 U.S. at 512-13, 113 S. Ct. at 2750 (listing

cases). The divergent views of the circuits on the effect of a

finding of pretext prompted the Supreme Court to grant certiorari

in Hicks to resolve the question. Id. at 512, 113 S. Ct. at 2750.

In Hicks, the plaintiff had brought a Title VII lawsuit,

alleging he had been demoted and discharged because of his race.

Id. at 505, 113 S. Ct. at 2746. After a full bench trial, the

district court found for the defendant, despite its finding that

the reasons the defendant gave for its actions were not the real

14
reasons for the plaintiff's demotion and discharge. Id. at 508,

113 S. Ct. at 2748. The Eighth Circuit reversed, holding that once

the plaintiff had discredited all of the employer's proffered

nondiscriminatory reasons for its decision, the plaintiff was

entitled to judgment as a matter of law. Id. The Supreme Court

reversed the Eighth Circuit and held that judgment for the

plaintiff was not compelled by rejection of all of the employer's

proffered nondiscriminatory reasons. Id. at 511, 113 S. Ct. at

2749.

Although the Supreme Court in Hicks rejected the position that

disbelief of the employer's proffered reasons requires judgment for

the plaintiff, the Court was careful to explain that such

disbelief, in tandem with the plaintiff's prima facie case, is

sufficient to permit the factfinder to infer discrimination. The

Court said:

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 the Court of Appeals was correct when
it noted that, upon such rejection, "[n]o additional
proof of discrimination is required."

Id. at 511, 113 S. Ct. at 2749 (quoting Hicks v. St. Mary's Honor

Ctr., 970 F.2d 487, 493 (8th Cir. 1992)) (footnote omitted) (second

emphasis added). That is a pretty clear statement.

Four justices dissented in Hicks, but none of them did so

because they thought that rejection of an employer's proffered

nondiscriminatory reasons, together with the prima facie case, is

15
insufficient to permit the factfinder to infer the ultimate fact of

intentional discrimination. To the contrary, the dissenting

justices would have gone even further than the majority did. They

would have affirmed the Eighth Circuit's holding that once the

factfinder rejects the employer's explanations for its decision, a

finding of discrimination is required, and the plaintiff is

"entitled to judgment." See Hicks, 509 U.S. at 532-33, 113 S. Ct.

at 2760-61 (dissenting opinion of Souter, J., joined by White,

Blackmun, and Stevens, J.J.).

Based on the Supreme Court's clear statement in the majority

opinion in Hicks, read together with the rationale of the

dissenting justices, we understand the Hicks Court to have been

unanimous that disbelief of the defendant's proffered reasons,

together with the prima facie case, is sufficient circumstantial

evidence to support a finding of discrimination. Therefore, it

follows from Hicks that a plaintiff is entitled to survive summary

judgment, and judgment as a matter of law, if there is sufficient

evidence to demonstrate the existence of a genuine issue of fact as

to the truth of each of the employer's proffered reasons for its

challenged action. With one exception, which we will discuss

later, up until the Isenbergh opinion, not only the holdings but
also the statements of this Court have been entirely consistent

with that understanding of the Hicks decision.

2. The Post-Hicks Case Law in this Circuit Before Isenbergh

Just a few months after the Supreme Court decided Hicks, we

were called upon to apply it in Hairston v. Gainesville Sun

16
Publishing Co., 9 F.3d 913 (11th Cir. 1993). In Hairston, a

terminated employee sued his former employer, alleging age

discrimination and retaliatory termination.4 The district court

granted summary judgment for the employer. We reversed. In doing

so, we explained that, under Hicks, if the employer carries its

burden of production (by articulating legitimate reasons for the

action), the plaintiff must demonstrate "that the proffered reason

was not the true reason for the employment decision." Id. at 919

(quoting Hicks, 509 U.S. at 508, 113 S. Ct. at 2747) (internal

quotation marks omitted). Following the Hicks rule, we did not

hold that additional proof of discrimination would be required at

trial. Instead, we explained:

The plaintiff may succeed by directly persuading the
court at trial that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence.
In order to establish pretext, the plaintiff is not
required to introduce evidence beyond that already
offered to establish the prima facie case.

....

[P]laintiff's burden at summary judgment is met by
introducing evidence that could form the basis for a
finding of facts, which when taken in the light most
favorable to the non-moving party, could allow a jury to

4
Although Hairston was an age discrimination case brought
under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§ 621 et seq., and not under Title VII, "[t]he Eleventh Circuit has
adapted to issues of age discrimination the principles of law
applicable to cases arising under the very similar provisions of
Title VII." Hairston, 9 F.3d at 919 (citing Carter v. City of
Miami, 870 F.2d 578, 581 (11th Cir. 1989)). Indeed, the Isenbergh
panel opinion, which we discuss infra in some detail, acknowledges
that the Title VII burden-shifting framework of McDonnell Douglas
and Burdine also applies to age discrimination cases. See
Isenbergh, 97 F.3d at 440.

17
 find by a preponderance of the evidence that the
plaintiff has established pretext ....

Id. at 920-21 (citations omitted) (emphasis added). Because the

plaintiff in Hairston had submitted sufficient evidence to permit

the factfinder to find that the employer's proffered reasons were

pretextual, we held it was error for the district court to grant

summary judgment. Id. at 921.

Thus Hairston, our first decision on this issue following

Hicks, clearly held that one way a plaintiff may succeed in

establishing discrimination is by showing that the employer's

proffered explanations are not credible. When that happens, the

plaintiff may or may not ultimately prevail in the litigation,

because the factfinder may or may not choose to make the

permissible inference of discrimination. However, as we explained

in Hairston, once the plaintiff introduces evidence sufficient to

permit the factfinder to disbelieve the employer's proffered

explanations, summary judgment is not appropriate, because

"[i]ssues of fact and sufficiency of evidence are properly reserved

for the jury." Id. at 921. We said nothing in Hairston about the

plaintiff being required to establish anything more than a prima

facie case plus the falsity of the tendered explanations; we said

nothing about anything else being required for the plaintiff to

avoid summary judgment, because nothing else is required.

In Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), we were
again called upon to apply the Hicks rule, this time in the context

of sex discrimination. In Batey, we recognized that under Hicks,

evidence demonstrating the incredibility of the employer's

18
proffered explanations is not, standing alone, enough to "compel

judgment for the plaintiff." Id. at 1334 n.12 (emphasis added)

(citation and internal quotation marks omitted). Nevertheless, we

held that such evidence is sufficient to satisfy the plaintiff's

burden in responding to a summary judgment motion, because Hicks

permits the trier of fact to base a finding of discrimination on

rejection of the employer's proffered nondiscriminatory reasons,

taken together with the plaintiff's prima facie case. Id. at 1334.

Because the plaintiff in Batey had produced sufficient evidence for

the factfinder to disbelieve the reasons that the employer

proffered for the employment decision, we reversed the district

court's grant of summary judgment for the employer. Id. at 1335-

36. Consistent with our Hairston precedent, and with Hicks, we

held that evidence of pretext, when added to a prima facie case, is

sufficient to create a genuine issue of material fact that

precludes summary judgment. Id.

Batey was followed closely by our decision in Howard v. BP Oil

Co., 32 F.3d 520 (11th Cir. 1994). In Howard, we reversed the

district court's grant of summary judgment for the defendant where

there was sufficient evidence to permit the factfinder to reject

the defendant's proffered reasons for awarding gas station

dealerships to white and Asian dealers instead of to the plaintiff,

who was black. We explained the effect of that evidence as

follows:

[Hicks] holds that proof that a defendant's
articulated reasons are false is not proof of intentional
discrimination; it is merely evidence of intentional
discrimination. However, evidence of intentional

19
 discrimination is all a plaintiff needs to defeat a
motion for summary judgment. That evidence must be
sufficient to create a genuine factual issue with respect
to the truthfulness of the defendant's proffered
explanation.

Id. at 525 (emphasis in original). In Howard, as in Hairston and

Batey, we held that summary judgment was inappropriate because,

taken together with the plaintiff's prima facie case, "the fact

finder's rejection of [the] defendant's proffered reasons is

sufficient circumstantial evidence upon which to base a judgment

for the plaintiff." Id. at 527.

We again addressed application of the Hicks rule in Cooper-

Houston v. Southern Railway Co., 37 F.3d 603 (11th Cir. 1994). In

that case, we reversed the district court's grant of summary

judgment in favor of an employer where the evidence was sufficient

to permit the factfinder to reject the employer's proffered

explanation for its employment decision. We explained that in

order to avoid summary judgment, "[the plaintiff] was ... obligated

to present evidence that [the employer's] legitimate reasons were

not what actually motivated its conduct," and we held that the

plaintiff had met that obligation. Id. at 605 (citations omitted).

The plaintiff's pretext evidence in Cooper-Houston included

evidence that the employer had made racially derogatory remarks in

the workplace, so it was unnecessary to discuss whether summary

judgment would have been inappropriate even if the plaintiff's

pretext evidence itself had not been racially charged.

Significantly, however, we did not say that evidence of racially

prejudiced attitudes was required for proof of pretext, even though

20
such evidence was present in that case. Therefore, Cooper-Houston

represents our fourth post-Hicks decision on this issue, all

consistently establishing the law of this circuit that a prima

facie case plus evidence permitting disbelief of the employer's

proffered reasons equals the plaintiff's entitlement to have the

factfinder decide the ultimate issue of discrimination. So far, so

good. But then came the incongruent Walker decision.

In Walker v. NationsBank of Florida, 53 F.3d 1548 (11th Cir.

1995), a panel of this Court affirmed the grant of judgment as a

matter of law in favor of the employer in an age and sex

discrimination case, even though the plaintiff had established a

prima facie case and had put on evidence sufficient to permit the

factfinder to disbelieve all of the employer's proffered reasons

for the adverse employment action. Id. at 1556-58. Despite that

evidence, the Walker panel said that "Walker did not produce

evidence that raised a suspicion of mendacity sufficient to permit

us to find on this record that the bank intentionally discriminated

against her on the basis of age and/or sex." Id. at 1558. For

that reason, the panel concluded that "[r]easonable and fair-minded

persons, in the exercise of impartial judgment, would not conclude

that the bank had discriminated against [the plaintiff] on the

basis of her age or sex." Id.
In a concurring opinion, Judge Johnson accurately noted that

the majority had exceeded its proper role by "deciding whether

evidence of pretext supports an inference of intentional

discrimination," a task that requires credibility determinations

21
and the weighing of evidence -- which is the jury's function. Id.

at 1563 (Johnson, J., concurring). As Judge Johnson pointed out,

53 F.3d at 1561-62, the majority's reasoning was not consistent

with the teaching of Hicks, or with our decisions in Howard and

Batey. Judge Johnson agreed with the result in Walker only

because, in his view, the evidence was not sufficient to permit a

factfinder to reject the employer's proffered reasons for its

action. Id. at 1564-65.

As we have recognized before, "no one is perfect, least of all

federal appellate judges, and from our mistakes and oversights

spring inconsistent decisions which we must deal with as best we

can." United States v. Hogan , 986 F.2d 1364, 1369 (11th Cir.

1993). The Walker decision is a mistake. Not only is Walker

inconsistent with the Supreme Court's clear instruction in Hicks,

but it is also inconsistent with the holdings of our Hairston,

Batey, Howard, and Cooper-Houston decisions. Where there are

inconsistent panel decisions, "the earliest panel opinion resolving

the issue in question binds this circuit until the court resolves

the issue en banc." United States v. Dailey, 24 F.3d 1323, 1327

(11th Cir. 1994) (quoting Clark v. Housing Auth. of Alma, 971 F.2d
723, 726 n.4 (11th Cir. 1992)). Our next decision on the issue at

hand is consistent with that principle, because it followed the law

established in the earlier decisions instead of the Walker

decision.

In Richardson v. Leeds Police Department , 71 F.3d 801 (11th

Cir. 1995), we reversed the district court's entry of judgment as

22
a matter of law in a racial discrimination case, after the close of

all the evidence, because the evidence was sufficient to permit a

jury to disbelieve the employer's proffered reasons for its adverse

employment decision. In reviewing the law applicable to these

cases, we cited Hicks and explained:

If the defendant meets this burden [of proffering a
nondiscriminatory reason for its decision], the plaintiff
must then have the opportunity to persuade the trier of
fact, through the presentation of his own case and by
cross-examining the defendant's witnesses, that the
reason proffered was not the real basis for the decision,
but a pretext for discrimination.

Richardson, 71 F.3d at 806 (emphasis added). Of course, persuading

the trier of fact "that the proffered reason was not the real basis

for the decision" is pointless unless that trier of fact is then

permitted to make the inference, which Hicks permits, that the

disbelieved reason is "but a pretext for discrimination."

Therefore, the fact that "a reasonable jury could ... have

concluded that [the employer's proffered explanation] was not the

true reason he was not rehired," precluded entry of judgment as a

matter of law in Richardson, 71 F.3d at 807. That holding, of

course, is inconsistent with Walker, but is consistent with the

binding precedents of Hicks, Hairston, Batey, Howard, and Cooper-
Houston.5

5
Trotter v. Board of Trustees, 91 F.3d 1449 (11th Cir. 1996),
is not inconsistent with our post-Hicks line of precedents properly
applying the Hicks standard. In Trotter, the district court
directed a verdict for the defendant at the close of all the
evidence. We affirmed, because the defendant had proffered
legitimate, nondiscriminatory reasons for its actions, and at the
close of all the evidence, those reasons "remain[ed] unrebutted."
Id. at 1457. In other words, the plaintiffs failed to produce
evidence sufficient to allow a reasonable factfinder to disbelieve

23
 To summarize, with the exception of Walker, which is an

anomaly, this circuit's post-Hicks decisions uniformly hold that

once a plaintiff has established a prima facie case and has put on

sufficient evidence to allow a factfinder to disbelieve an

employer's proffered explanation for its actions, that alone is

enough to preclude entry of judgment as a matter of law.

Nevertheless, that well-established rule of law was recently called

into question in dicta contained in Isenbergh v. Knight-Ridder

Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996).

3. The Isenbergh Dicta

In Isenbergh, a former employee brought an Age Discrimination

in Employment Act lawsuit against his former employer when,

following a merger, the employee was not awarded a new managerial

position. Id. at 438. The district court granted summary judgment

for the employer, and a panel of this Court affirmed. In its

opinion, the Isenbergh panel criticized the interpretation of Hicks

established by our Howard decision and questioned whether it

represents a "correct statement of the law." Isenbergh, 97 F.3d at

443. Noting that the Walker decision is out of line with the

reasoning of Howard, the panel said that "[s]ome 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 decision in question." Isenbergh, 97 F.3d at 442.

those reasons.

24
The panel concluded its critique of Howard by noting its "fear that

what Howard says about sufficient evidence is a mistake."

Isenbergh, 97 F.3d at 442.6

Although the Isenbergh panel opinion criticized our Howard

decision's application of the Hicks standard, the actual decision

in Isenbergh was in harmony with it. As the panel explained, it

affirmed the district court's grant of summary judgment in favor of

the employer, because its "examination of the record here indicates

that Isenbergh failed in creating an issue of fact about the

disbelievability of the employer's reason for the hiring decision."

Isenbergh, 97 F.3d at 443-44. Therefore, the Isenbergh holding, as

distinguished from its dicta, is consistent with Hicks, and with

our post-Hicks precedents properly applying the Hicks standard.

See, e.g., New Port Largo, Inc. v. Monroe County , 985 F.2d 1488,

1500 (11th Cir.) (Edmondson, J., concurring) (emphasizing that "for

law-of-the-circuit purposes, a study of [case law] ought to focus

far more on the judicial decision than on the judicial opinion"),

cert. denied, 510 U.S. 964, 114 S. Ct. 439 (1993). Nevertheless,

the ideas and critiques advanced by Isenbergh's dicta are worthy of

some discussion.7

6
As we have explained in the previous section of this opinion,
Howard followed and was entirely consistent with the holdings of
our earlier decisions in Hairston and Batey. The Isenbergh opinion
mentions Batey, but not Hairston.
7
In Part IV.D, infra, we conclude that in this case the
evidence was insufficient to create a genuine issue of material
fact as to one of Meadowcraft's proffered reasons for not promoting
Combs. We realize, of course, that that holding makes our response
to Isenbergh's dicta itself dicta. Instead of defending our use of
dicta with the cliché about it sometimes being necessary to fight

25
 First, we believe that a chronological review of our post-

Hicks case law, see supra Part IV.C.2, ought to dispel any

"confusion [that] 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 decision in question."

Isenbergh, 97 F.3d at 442.

Second, we hope that the Isenbergh opinion will not be read to

call into question the binding authority of our Howard, Hairston,
8
and Batey precedents. While recognizing the "ostensible conflict"

fire with fire, we will rely on our recent acknowledgment that
"[d]icta can sometimes be useful when it contains a persuasive
analysis." McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077
(11th Cir. 1996). We leave it to the reader to determine whether
that condition is met in this instance.

The concurring opinion in this case states that “[t]he legal
principles that control this dispute are familiar and do not
require extended explication.” It then goes on to list as one of
these “familiar” principles the proposition that under the
McDonnell Douglas framework, the plaintiff may shoulder the burden
of convincing the factfinder that a discriminatory reason motivated
the employment action “either directly by persuading the factfinder
that a discriminatory reason motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of
credence.” That principle was not so familiar to the Isenbergh
panel, which went to some length to state its views to the
contrary.

We make no apologies for attempting to clarify this area of
the law, or at least to illuminate the difference of opinion which
exists among some members of this Court concerning it. Unless and
until the issue is presented in a dispositive fashion by the facts
of some future case, which will provide an opportunity for the en
banc court to settle the matter, that is all we can do.
8
In a footnote, the Isenbergh opinion refers to "the
possibility" that the " ostensible conflict" between Walker and
Howard might be reconciled on the grounds that Howard is a Rule 56
(summary judgment) case, whereas Walker is a Rule 50 (judgment as
a matter of law) case. Isenbergh, 97 F.3d at 443 n.4. We are

26
between Howard and Walker, the Isenbergh opinion states that "[w]e

suspect ... that [Walker v.] NationsBank, not Howard, is the more

correct statement of the law." Isenbergh, 97 F.3d at 443; see also

id. at 444 ("even if Howard is and ought to be the law"). Of

course, once a panel of this Court has decided the issue, questions

about whether a different view of the matter might be "more

correct" are rendered academic insofar as subsequent panels are

concerned. Stated somewhat differently, unless and until an issue

is addressed by the en banc Court, the Supreme Court, or Congress,

the first panel decision on it is, by definition, "more correct"

than any subsequent panel decisions. That is what our prior

precedent rule, upon which much of the rule of law in this circuit

depends, is all about.

Because the Walker decision was preceded by a number of

earlier Eleventh Circuit decisions holding that a jury question is

unpersuaded by that suggested distinction. Rule 56 and Rule 50 are
both concerned with judgment as a matter of law -- either before
the trial begins or after. Compare Fed. R. Civ. P. 56 with Fed. R.
Civ. P. 50. As the Supreme Court has instructed us, "the inquiry
under each is the same: whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct.
2505, 2512 (1986). Isenbergh's suggested reconciliation of Walker
and Howard would set up differing substantive liability standards
for judgment as a matter of law in discrimination cases, depending
entirely upon the timing of the related motion. We know of no
authority for making such a change in the law, and we believe
Anderson squarely prohibits it.

The reality of the situation is that Walker is irreconcilably
out of step with this circuit's precedents. See Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1376 n.4 (11th Cir. 1996)
(acknowledging that "an apparent conflict exists within this
circuit on the issue").

27
created when a prima facie case is coupled with evidence sufficient

to permit a reasonable factfinder to disbelieve an employer's

proffered reasons for the challenged action, those earlier

decisions remain binding on this Court, and all panels of it.

They, and not Walker or Isenbergh, state what has been and will be

the law of this circuit unless and until the en banc Court, the

Supreme Court, or Congress changes it. See, e.g., United States v.

Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994); Clark v. Housing Auth.

of Alma, 971 F.2d 723, 726 n.4 (11th Cir. 1992).

Finally, the Isenbergh opinion sets up a reductio ad absurdum

that bears further examination:

Assume the following situation by way of example.
A defendant sues, 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 disbelievability)
nonetheless supports a judgment for the employer. This
result is the one specifically authorized by Hicks. See
509 U.S. at 508-11, 113 S. Ct. at 2748-49.

The issue in Howard and [Walker v. ]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)

28
 disbelieve the employer's stated reason? The Howard
panel, reading Hicks, seems to say "no."

We suspect, however, that the answer is "yes" ....

Isenbergh, 97 F.3d at 442-43.

The real answer is that in the Isenbergh opinion's

hypothetical, the nondiscriminatory reason proffered by the

employer for its actions is excessive lateness, not that the

employee was late exactly a specific number of times, no more and

no less. In the hypothetical, there is a conflict only between the

precise number of times the employer said the employee was late,

and the actual number of times the employee was late. But there is

no conflict about the employee's being late an excessive number of

times. The issue upon which judgment as a matter of law turns is

whether the employer's proffered nondiscriminatory reason for its

action, excessive lateness, may reasonably be disbelieved, not

whether the employee was late nine times as opposed to seven.9

9
By treating the employer's proffered nondiscriminatory reason
as a specific number of "latenesses," instead of excessive
lateness, the hypothetical also makes the same sort of analytical
error that the Supreme Court identified and addressed in Hicks
itself:

These statements imply that the employer's "proffered
explanation," his "stated reasons," his "articulated
reasons," somehow exist apart from the record -- in some
pleading, or perhaps in some formal, nontestimonial
statement made on behalf of the defendant to the
factfinder. ("Your honor, pursuant to McDonnell Douglas
the defendant hereby formally asserts, as its reason for
the dismissal at issue here, incompetence of the
employee.") Of course it does not work like that. The
reasons the defendant sets forth are set forth "through
the introduction of admissible evidence." Burdine, 450
U.S., at 255, 101 S. Ct., at 1094.

Hicks, 509 U.S. at 522-23, 113 S. Ct. at 2755 (emphasis omitted).

29
 In the hypothetical set up in the Isenbergh opinion, there is

no evidence to discredit the employer's explanation that the

defendant was fired for excessive lateness; the defendant's reason

for its action remains unrebutted. So, the employer would be

entitled to judgment as a matter of law under Hicks, 509 U.S. at

515-18, 113 S. Ct. at 2751-53 (discussing plaintiff's burden of

discrediting the defendant's explanations), and under all of our

prior decisions, including Hairston, Batey, and Howard.

4. The Post-Hicks Case Law in Other Circuits

Eight other circuits have considered the issue and interpreted

Hicks to mean exactly what we have interpreted it to mean -- that

evidence sufficient to discredit a defendant's proffered

nondiscriminatory reasons for its actions, taken together with the

plaintiff's prima facie case, is sufficient to support (but not

require) a finding of discrimination. That is the law not only in

this circuit, but also in the Second, Third, Fourth, Sixth,

Seventh, Eighth, Ninth, and District of Columbia Circuits. See,

e.g., EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)

("A finding of pretextuality allows a juror to reject a defendant's

proffered reasons for a challenged employment action and thus

permits the ultimate inference of discrimination."); Sheridan v.

Because the employer is required to proffer its explanation
not by a mere assertion, but by the introduction of admissible
evidence, the hypothetical's assumption that the employer somehow
"offers the nine-latenesses explanation" when the overwhelming
weight of the evidence is that the employee was late only seven
times, is unrealistic. As the Supreme Court said in Hicks, "[I]t
does not work like that." Id. at 523, 113 S. Ct. at 2755.

30
E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1066-67 (3d Cir. 1996)

(en banc) ("[T]he elements of the prima facie case and disbelief of

the defendant's proffered reasons are the threshold findings,

beyond which the jury is permitted, but not required, to draw an

inference leading it to conclude that there was intentional

discrimination.");10 Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316

(4th Cir. 1993) (considering two questions at summary judgment:

(1) the prima facie case and (2) "whether [the plaintiff] has shown

that there is a genuine dispute of material fact about [the

defendant's] proffered explanation for the discharge"); Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)

("[T]he only effect of the employer's nondiscriminatory explanation

is to convert the inference of discrimination based upon the

plaintiff's prima facie case from a mandatory one which the jury

must draw, to a permissive one the jury may draw, provided that the

jury finds the employer's explanation 'unworthy' of belief.")

(emphasis in original); Perdomo v. Browner, 67 F.3d 140, 146 (7th

Cir. 1995) ("The district court found Perdomo's [direct] evidence

of racial discrimination unpersuasive, but ... such evidence is not

required: the trier of fact is permitted to infer discrimination

from a finding that the employer's proffered reason was

spurious."); Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104,
1110 (8th Cir.) ("The elements of the plaintiff's prima facie case

10
The Third Circuit's en banc opinion in Sheridan is a
particularly illuminating and thorough study of the issue,
especially its discussion of the justification for the
interpretation of Hicks that has been adopted by a majority of the
circuits. See 100 F.3d at 1068-72.

31
are thus present and the evidence is sufficient to allow a

reasonable jury to reject the defendant's non-discriminatory

explanations. The 'ultimate question' of discrimination must

therefore be left to the trier of fact to decide."), cert. denied,

115 S. Ct. 355 (1994); Washington v. Garrett, 10 F.3d 1421, 1433

(9th Cir. 1993) ("If a plaintiff succeeds in raising a genuine

factual issue regarding the authenticity of the employer's stated

motive, summary judgment is inappropriate, because it is for the

trier of fact to decide which story is to be believed."); Barbour

v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) ("According to

Hicks, a plaintiff need only establish a prima facie case and

introduce evidence sufficient to discredit the defendant's

proffered nondiscriminatory reasons; at that point, the factfinder,

if so persuaded, may infer discrimination.").

Of course, the holdings of other federal courts of appeals on

the issue do not determine the law of this circuit. However, in

considering whether the rule established in our precedents "ought

to be the law," it is of no small moment that eight of the ten

other circuits that have considered the question are in agreement

with our interpretation of Hicks. Thus far, only the First and

Fifth Circuits have issued opinions expressing a contrary view, and

in neither opinion was that expression actually a holding.

In Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir.

1994), the First Circuit stated that proof of pretext will not

always shield a plaintiff from summary judgment, id. at 260 n.3,

but held only that the defendant in that case was entitled to

32
summary judgment because the plaintiff had presented "no evidence

... to rebut [the defendant's] assertion that those hired were more

qualified," id. at 262. Of course, that holding -- as

distinguished from the dicta -- is entirely consistent with the law

of our circuit and the eight other circuits we have cited.

In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996)

(en banc), the Fifth Circuit affirmed judgment in favor of an

employee in an age discrimination case, holding that the evidence

was sufficient to allow a rational jury to find that age

discrimination was the true reason the employer discharged the

employee. That holding itself is no problem, but the Rhodes

opinion also contains dicta regarding the Hicks rule that is

arguably inconsistent with the law of this circuit and eight

others. Although the Rhodes opinion states that under Hicks,

"evidence of pretext will permit a trier of fact to infer that the

discrimination was intentional," id. at 993, it also states that

"[i]t is unclear ... whether the [Supreme] Court intended that in

all such cases in which an inference of discrimination is permitted

a verdict of discrimination is necessarily supported by sufficient

evidence," id. Additionally, the opinion states, "[w]e are

convinced that ordinarily such verdicts would be supported by

sufficient evidence, but not always." Id.

The fact remains that the contrary dicta in the First and

Fifth Circuit decisions are just that: dicta. We have not found

any holding of any circuit inconsistent with the holding of our

33
Hairston, Batey, Howard, Cooper-Houston line of decisions, and at

least eight other circuits have reached the same holding.

5. The Hicks Standard is not a "Dramatic and Hurtful-
to-Employers Change in the Law”

We close out our discussion of the Isenbergh dicta by

answering its charge that the Howard line of decisions represents

a "dramatic and hurtful-to-employers change in the law" that the

Supreme Court did not intend or command in the Hicks decision, see

Isenbergh, 97 F.3d at 443. Not only does Hicks command the rule

recognized in our Howard line of decisions, but that rule is a
rational, common-sense consequence of the unique evidentiary

framework that has been in place for over twenty years -- ever

since the Supreme Court decided McDonnell Douglas.

Under the McDonnell Douglas framework, if a plaintiff

establishes a prima facie case, and the defendant employer proffers

no nondiscriminatory reasons for the action, it is settled that the

plaintiff wins judgment as a matter of law. Burdine, 450 U.S. at

253, 101 S. Ct. at 1093-94. Hopefully, no one would suggest that

in such a case the defendant might be entitled to a judgment as a
matter of law. Yet, those who argue against the Howard line of

decisions are advocating a position that is not much more logically

defensible than that. Given the establishment of a prima facie

case in each, the case in which an employer puts forward nothing

but false reasons is too analytically close to the case in which

the employer puts forward no reasons for the law to permit judgment

as a matter of law to be entered for opposite sides in the two

34
cases. Stated somewhat differently, why should the law reward so

handsomely mendacity in legal proceedings?

The upshot of Hicks and the Howard line of decisions is that
a defendant cannot win judgment as a matter of law merely by

proffering nothing but false nondiscriminatory reasons for its

actions. The justification for that rule is closely analogous to

the justification for the mandatory presumption of discrimination

that initially accompanies a plaintiff's prima facie case. As

then-Justice (now Chief Justice) Rehnquist pointed out long before

the Hicks decision, we require a defendant, on pain of losing the

case, to come forward with explanations for its actions once a

plaintiff has made out a prima facie case of discrimination,

"because we presume these acts, if otherwise unexplained, are more

likely than not based on the consideration of impermissible

factors." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.

Ct. 2943, 2949-50 (1978). Justice Rehnquist further explained:

[W]e are willing to presume this largely because we know
from our experience that more often than not people do
not act in a totally arbitrary manner, without any
underlying reasons, especially in a business setting.
Thus, when all legitimate reasons for rejecting an
applicant have been eliminated as possible reasons for
the employer's actions, it is more likely than not the
employer, who we generally assume acts only with some
reason, based his decision on an impermissible
consideration such as race.

Id.
As the Third Circuit, sitting en banc, recently observed, "The

distinct method of proof in employment discrimination cases,

relying on presumptions and shifting burdens of articulation and

production, arose out of the Supreme Court's recognition that

35
direct evidence of an employer's motivation will often be

unavailable or difficult to acquire." Sheridan v. E.I. DuPont De
Nemours & Co. , 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc).

Frequently, acts of discrimination may be hidden or subtle; an

employer who intentionally discriminates is unlikely to leave a

written record of his illegal motive, and may not tell anyone about

it. "There will seldom be 'eyewitness' testimony as to the

employer's mental processes." United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482

(1983). Because of those realities, plaintiffs are often obliged

to build their cases entirely around circumstantial evidence. The

unique proof problems that accompany discrimination cases are the

genesis of the unique solutions that the Supreme Court has devised

for those cases in McDonnell Douglas and its progeny. See, e.g.,

Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S. Ct. 1775,

1801-02 (1989) (O'Connor, J., concurring) ("[T]he entire purpose of

the McDonnell Douglas prima facie case is to compensate for the

fact that direct evidence of intentional discrimination is hard to

come by.").

A defendant who puts forward only reasons that are subject to

reasonable disbelief in light of the evidence faces having its true

motive determined by a jury. But we fail to see how that result is

particularly "hurtful-to-employers," as Isenbergh suggests, 97 F.3d
at 443. The Third Circuit recently explained:

We routinely expect that a party give honest
testimony in a court of law; there is no reason to expect
less of an employer charged with unlawful discrimination.
If the employer fails to come forth with true and

36
 credible explanation and instead keeps a hidden agenda,
it does so at its own peril. Under those circumstances,
there is no policy to be served by refusing to permit the
jury to infer that the real motivation is the one that
the plaintiff has charged.

Sheridan, 100 F.3d at 1069.

Of course, the law is that the jury is not required to make

the inference of discrimination that Hicks permits upon rejection

of the employer's proffered nondiscriminatory reasons. "That the

employer's proffered reason is unpersuasive, or even obviously

contrived, does not necessarily establish that the plaintiff's

proffered reason of race is correct. That remains a question for

the factfinder to answer ...." Hicks, 509 U.S. at 524, 113 S. Ct.

at 2756. In answering that question, the jury must perform its

traditional duties of assessing the credibility of witnesses

through observation of trial testimony and of weighing the evidence

-- tasks peculiarly within the province of the jury. E.g., Castle

v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir. 1988)

("Assessing the weight of evidence and credibility of witnesses is

reserved for the trier of fact."). In performing those traditional

duties, the jury must measure the strength of the permissible

inference of discrimination that can be drawn from the plaintiff's

prima facie case along with the evidence that discredits the

employer's proffered explanations for its decision. Even if the

jury concludes that all the employer's proffered explanations are

unworthy of belief, it may still remain unpersuaded that

discrimination was the real reason for the employer's decision.

37
That decision is entrusted to the jury's discretion, but to

exercise that discretion, the jury has to get the case.

When deciding a motion by the defendant for judgment as a

matter of law in a discrimination case in which the defendant has

proffered nondiscriminatory reasons for its actions, the district

court's task is a highly focused one. The district court must, in

view of all the evidence, determine whether the plaintiff has cast

sufficient doubt on the defendant's proffered nondiscriminatory

reasons to permit a reasonable factfinder to conclude that the

employer's proffered "legitimate reasons were not what actually

motivated its conduct," Cooper-Houston v. Southern Ry. Co., 37 F.3d

603, 605 (11th Cir. 1994) (citation omitted). The district court

must evaluate whether the plaintiff has demonstrated "such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of

credence." Sheridan, 100 F.3d at 1072 (citation and internal

quotation marks omitted); see also Walker, 53 F.3d at 1564

(Johnson, J., concurring) (discussing methods of proving pretext).

However, once the district court determines that a reasonable jury

could conclude that the employer's proffered reasons were not the

real reason for its decision, the court may not preempt the jury's

role of determining whether to draw an inference of intentional

discrimination from the plaintiff's prima facie case taken together

with rejection of the employer's explanations for its action. At

that point, judgment as a matter of law is unavailable.

38
 D. Application of the Legal Standard to the
Evidence in this Case

Having reviewed the legal principles that govern this case, we

now proceed to apply those principles to the evidence adduced at

trial. In doing so, we consider the entire record in the light

most favorable to Combs, for the limited purpose of ascertaining

whether there was sufficient evidence for Combs to withstand

Meadowcraft's motions for judgment as a matter of law. Our task,

like that of the district court, is a highly focused one. We must,

in view of all the evidence, determine whether the plaintiff has

cast sufficient doubt on the defendant's proffered

nondiscriminatory reasons to permit a reasonable factfinder to

conclude that the employer's proffered "legitimate reasons were not

what actually motivated its conduct," Cooper-Houston v. Southern

Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994).

As previously noted, Meadowcraft proffered evidence in support

of three legitimate, nondiscriminatory reasons for its decision to

promote Walker, instead of Combs, to the position of welding

supervisor. Those reasons were: (1) Walker's superior welding

experience; (2) the recommendations of supervisors Lane and

Anderson; and (3) Walker's superior supervisory experience. By

meeting its burden of producing legitimate reasons for its

decision, Meadowcraft successfully eliminated the presumption of

discrimination that initially accompanied Combs' prima facie case.11

11
To establish a prima facie case of discriminatory failure to
promote, a plaintiff must prove: (1) that he is a member of a
protected class; (2) that he was qualified for and applied for the
promotion; (3) that he was rejected; and (4) that other equally or

39
Provided that the record evidence would permit a reasonable

factfinder to reject each of Meadowcraft's proffered explanations

for its decision, the case properly was submitted to the jury for

a decision on the ultimate question of intentional discrimination.

less qualified employees who were not members of the protected
class were promoted. Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.
1988), cert. denied, 490 U.S. 1006, 1090 S. Ct. 1641 (1989).
Although Meadowcraft contends that we should revisit whether Combs
successfully established a prima facie case of discrimination, the
Supreme Court has instructed otherwise:

[W]hen the defendant fails to persuade the district court
to dismiss the action for lack of a prima facie case, and
responds to the plaintiff's proof by offering evidence of
the reason for the plaintiff's rejection, the factfinder
must then decide whether the rejection was discriminatory
within the meaning of Title VII.

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 714-15, 103 S. Ct. 1478, 1481 (1983) (footnote omitted).
"When the trier of fact has before it all the evidence needed to
decide the ultimate issue of whether the defendant intentionally
discriminated against the plaintiff, the question of whether the
plaintiff properly made out a prima facie case 'is no longer
relevant.'" Richardson v. Leeds Police Dep't, 71 F.3d 801, 806
(11th Cir. 1995) (quoting Aikens, 460 U.S. at 715, 103 S. Ct. at
1482; see also Wall v. Trust Co., 946 F.2d 805, 809-10 (11th Cir.
1991) (same).

Because Meadowcraft failed to persuade the district court to
dismiss Combs' lawsuit for lack of a prima facie case, and
responded to Combs' proof by offering evidence to explain why Combs
was rejected in favor of Walker, the factfinder was then required
to "decide whether the rejection was discriminatory within the
meaning of Title VII." Aikens, 460 U.S. at 715, 103 S. Ct. at
1481. Of course, the factfinder could conclude that the decision
was discriminatory only if it permissibly could disbelieve
Meadowcraft's proffered nondiscriminatory reasons for its decision.
Therefore, on appeal -- as on Meadowcraft's motion for judgment as
a matter of law -- the question of whether Combs "properly made out
a prima facie case 'is no longer relevant,'" Richardson, 71 F.3d
at 806 (11th Cir. 1995) (quoting Aikens, 460 U.S. at 715, 103 S.
Ct. at 1482. While we consider the evidence submitted by Combs in
connection with his prima facie case in evaluating whether a
reasonable jury could disbelieve Meadowcraft's proffered
nondiscriminatory reasons for its actions, we do not revisit the
existence of the prima facie case itself.

40
We now consider the evidence related to each of the three proffered

nondiscriminatory reasons for Meadowcraft's decision to promote

Walker instead of Combs.

1. Welding Experience

The parties agree that Walker had welding experience and that

Combs did not. Combs concedes that "some difference in the two

existed" with respect to welding experience, which we take to mean

that Walker was more qualified as a welder than Combs.

Nonetheless, Combs contends that the jury reasonably could have

concluded that Walker's welding experience did not actually

motivate Meadowcraft's promotional decision, because Walker was

transferred to the packing department -- where welding experience

is irrelevant -- almost immediately after his promotion.

Viewing the record evidence in the light most favorable to

Combs, we agree that a reasonable jury could have concluded that

Meadowcraft's promotional decision was not actually motivated by

Walker's concededly superior welding experience. At trial, John

Hart, supervisor of the Wadley plant, testified: "Fred was packing

supervisor when I hired him. He wasn't in the weld area, he was a

packing supervisor." Although Meadowcraft contends that Walker's

stint in the packing department lasted only a short time, that

contention is undermined by the record. George Anderson, one of

the welding department supervisors, testified about the duration of

Walker's packing assignment as follows: "Fred made a good
supervisor. When he was first hired, I think he spent a couple of

weeks in welding, then he was moved to packing for a year or so.

41
Now he's back over there with the men in the welding, and he's

doing an outstanding job."

When viewed in the light most favorable to Combs, the

foregoing evidence would permit a reasonable juror to conclude that

Walker was hired to work as a packing supervisor and that he spent

at least a year in that position before being transferred to the

welding department. Because welding experience is not relevant to

supervisory work in the packing department, a reasonable juror

would be permitted to conclude that Walker's superior welding

experience was not a factor that actually motivated Meadowcraft's

decision to promote Walker instead of Combs.

2. Supervisory Recommendations

Meadowcraft contends that its decision to promote Walker

instead of Combs was based on the recommendations of welding

department supervisors George Anderson and Edward Lane, both of

whom are black. According to Meadowcraft, those supervisory

recommendations favored Walker, because Walker was endorsed by both

supervisors, whereas Combs was endorsed only by Lane. That view of

the circumstances is supported by the testimony of Plant Supervisor

Hart. At trial, Hart testified: "George and Edward both

recommended Fred Walker for the job. They were more familiar with

Fred Walker than I was. I had never spoken to Fred Walker until I

interviewed him." Hart further testified that "[a]fter George and

Edward came to me and recommended him, I did pull his resume."

Additionally, Hart testified that neither Anderson nor Lane ever

recommended that Combs be promoted to supervisor.

42
 Meadowcraft's view of the evidence is also supported by

Anderson's testimony. At trial, the following exchange took place

on direct examination of Anderson:

Q. Did you have anything to do with Mr. Walker's
promotion to supervisor?

A. Well, one day Fred come up to the office and talked
with me and Mr. Lane about do they think we have
any chance of progressing himself in the plant. He
told him to send out a resume. He did, and I sort
of recommended him to John [Hart] that, you know, I
have nothing to do with the hiring, but I did
recommend Fred to be a supervisor.

Q. Why did you do that?

A. Well, I worked with Fred down there on the floor.
He came in and he got into welding, and I already
knew that he had used to be a principal, and I knew
he worked with people. At that time we was needing
supervisors. We was going to start up a second
shift and we'd have to get some supervisors, and I
hadn't thought about him until he came and talked
with us that day. I figured he'd be a good
candidate.

Q. And you communicated that to Mr. Hart?

A. Yes.

Q. Did you ever recommend Darrell Combs to be
supervisor?

A. No, I didn't.

Although Hart's and Anderson's testimony supports

Meadowcraft's proffered nondiscriminatory explanation for promoting

Walker instead of Combs, Edward Lane's testimony paints a different

picture of the supervisory assessments of Walker and Combs.

According to Lane's testimony on direct examination, he recommended

Combs for the supervisor position, and Anderson agreed with Lane's
evaluation of Combs' qualifications for the position:

43
Q. Now, were you there when Mr. Combs sought a
position in the office?

A. Yes, ma'am, I was.

Q. And tell the ladies and gentlemen of the jury what
you know about that.

A. At the time it was for other positions, supervision
positions were open. The man that I was working
for by the name of Mr. John Hart, knew of such a
position, and we made a recommendation for him to
be a supervisor.

Q. You made a recommendation for who to be a
supervisor?

A. This gentleman in the courtroom by the name of
Darrell Combs.

Q. To whom did you make that recommendation?

A. To Mr. John Hart.

Q. Now, at the time you made that recommendation, was
there any other individuals discussed?

A. Yes, ma'am, there was. A gentleman by the name of
Mr. Fred Walker.

Q. Now, when you made this recommendation about Mr.
Combs, it was being of supervisory material, is
that correct?

A. Yes, ma'am, I did.

Q. Who else was -- Was it at a meeting you made that
recommendation?

A. Yes, ma'am.

Q. Who else was at that meeting?

A. Mr. George Anderson.

Q. Did Mr. Anderson go along with your assessment that
Mr. Combs was qualified to be a supervisor?

A. Yes, he did.
Q. Did he express that to Mr. Hart?

44
 A. Yes, ma'am, he did.

In addition to testifying that both he and Anderson supported

Combs for the supervisory position, Lane repeatedly denied

recommending Walker for the job:

Q. Did you recommend Fred Walker be promoted to
supervisor, and did you make that recommendation to
John Hart?

A. No, sir, I made the recommendation for Darrell
Combs.

....

Q. All I want you to tell me, I don't mean to cut you
off again, but I want you to tell me what you said.

A. I'm telling you direct as to what I directed to the
gentleman right there, Darrell Combs. That's the
recommendation I made to be supervisor.

Q. I got that. You recommended Darrell Combs.

A. Yes, sir.

Q. Did you, or did you not, recommend Fred Walker?

A. No, sir, I did not.

Q. You did not?

A. No, sir.

When confronted with his deposition testimony, however, Lane

admitted that he told Hart that Walker would make a good

supervisor, but indicated that he was pressured to do so:

Q. So you did tell John Hart that Fred Walker would
make a good supervisor.

A. Yes, sir, I had to.

Q. All right. Tell us about that.
A. The reason I had to, sir, was we was in a meeting.
... And John was the manager. If I would have said

45
 yes or no, still John was going to pick who he
wanted.

Q. I'm not trying to get at what Mr. Hart was going to
do with your recommendation, I'm trying to get at
what your recommendation was.

A. Yes, sir. We all agreed.

To summarize, the evidence is in conflict about the

communications that Anderson and Lane made to Hart about the

relative merits of Walker and Combs for the supervisory position.

It is undisputed that Anderson recommended Walker, but there is

conflicting testimony about whether he also endorsed Combs.

Similarly, Lane's testimony clearly indicates that he recommended

Combs, but there is conflicting testimony about whether he also

endorsed Walker, or merely begrudgingly agreed at a meeting with

Hart and Anderson that Walker would be a good supervisor. Viewing

the evidence in the light most favorable to Combs, a reasonable

jury could conclude that the supervisory recommendations of

Anderson and Lane did not clearly point to Walker or Combs as the

preferable candidate and that, therefore, those supervisory

recommendations did not actually motivate Meadowcraft's decision to

promote Walker instead of Combs.

3. Supervisory Experience

Meadowcraft's third proffered nondiscriminatory reason for

promoting Walker instead of Combs is that Walker had better

experience as a supervisor, both in quality and quantity. On that
point, it is undisputed that prior to joining the workforce at

Meadowcraft, Walker worked for over twenty years as a school

46
administrator and had supervised others throughout most of his

career. Walker's testimony about his supervisory experience, which

is entirely undisputed, is as follows:

Q. [Y]ou say, you became principal with Woodland High
School in 1974?

A. About January of 1974, immediately after New
Year's.

Q. And did you supervise people?

A. Yes, sir.

Q. How many people would you say you supervised?

A. Approximately forty-seven or forty-eight teachers,
thirty-five to thirty-six bus drivers, thirteen or
fourteen lunchroom personnel, and custodian type
workers. Probably around a hundred or more people.

....

Q. All right. How long were you principal at
Woodland?

A. Seven years.

Q. And then what did you do?

A. I received a promotion to the superintendent's
office at the county courthouse, and I joined the
superintendent's staff as supervisor of
instruction.

....

Q. How many schools did you all have jurisdiction
over?

A. We had four high schools, two middle schools and
one junior high school at that time. Also a share
of the vocational trade school.

....

Q. All right. How long were you supervisor of
instruction?

A. Six years.

47
 ....

Q. So after the superintendent's office, you went to
Rock Mill?

A. Yes, sir.

Q. And Rock Mill is a -- what type of school is that?

A. It's a K through 8 junior high school.

Q. All right. How many students were there?

A. Approximately at that time 350 students.

Q. And you had responsibility for those students?

A. Yes, sir.

Q. How many teachers were there?

A. At that time probably sixteen or seventeen on
staff.

Q. Did you supervise any other workers?

A. My custodial workers, my lunchroom workers and my
bus drivers.

Q. Okay. And you were principal of Rock Mill
beginning in '86 until what year?

A. 1991.

By contrast, Combs' testimony at trial established that his

own supervisory experience was extremely limited:

Q. Now, you had never really had any power to
discipline, or counsel, or fire anybody while you
were out there [in the scanning department], had
you?

A. On that job?

Q. Yes, sir.

A. No, sir.
Q. While you were at the company at all?

A. No, sir.

48
 Q. And you never really supervised anyone, other than
showing the people how to use the scanning guns for
over those two or three weeks?

A. Right.

Q. Let's look at your work experience, if we can.
Prior to the company, okay, you had been a grocery
store bagger?

A. Yes, sir.

Q. You had been a resident manager at an apt
[apartment] complex, right?

A. Yes, sir.

Q. Had you supervised anybody there?

A. Supervise? Well, I used to have little teenagers
working for me when I was doing some of my
maintenance duties, but as far as -- like as far as
like company people, no.

....

Q. So at the point of 1992 when you're working for Mr.
Hart on this assignment he had for you, you hadn't
really ever supervised anybody except those
teenagers you told me about, is that right?

A. That's right.

Thus, the evidence was undisputed that Walker had substantial

supervisory experience, while Combs had virtually none.

Nonetheless, Combs contends that he put on sufficient evidence to

permit a reasonable jury to disbelieve that Meadowcraft's decision

to promote Walker was motivated by Walker's supervisory experience.

Combs points to the fact that, prior to joining Meadowcraft, Walker

was forced to resign his position as principal of Rock Mills Junior

High School after acknowledging that he had misused approximately
$5,000 of school funds. Combs' theory seems to be that Walker's

substantial supervisory experience is sufficiently undermined by

49
the circumstances surrounding his resignation as principal that a

reasonable juror could disbelieve Meadowcraft's explanation that it

promoted Walker instead of Combs because Walker had more and better

supervisory experience. We disagree.

Financial impropriety is a serious matter, but there is no

evidence in the record that either Walker or Combs were considered

for a position that involved the custody or management of company

funds. Walker and Combs were contenders for a position that

involved managing people, not money. If Meadowcraft had contended

that it promoted Walker instead of Combs because it believed Walker

would be a more trustworthy financial manager, the evidence of

Walker's misuse of funds clearly would have been sufficient to

permit a reasonable jury to disbelieve Meadowcraft's proffered

explanation. However, Meadowcraft never proffered that as a

reason. Instead, Meadowcraft proffered evidence that the reason it

promoted Walker was that he had years of extensive supervisory

experience that Combs did not.

In relying on Walker's financial improprieties to undermine

Meadowcraft's explanation that it based its promotion decision on

Walker's superior supervisory experience, Combs confuses

disagreement about the wisdom of an employer's reason with

disbelief about the existence of that reason and its application in

the circumstances. Reasonable people may disagree about whether

persons involved in past financial improprieties should be made

supervisors, but such potential disagreement does not, without

more, create a basis to disbelieve an employer's explanation that

50
it in fact based its decision on prior non-financial supervisory

experience. Meadowcraft's decision to promote Walker instead of

Combs may seem to some to be bad business judgment, and to others

to be good business judgment, but federal courts do not sit to

second-guess the business judgment of employers. Stated somewhat

differently, a plaintiff may not establish that an employer's

proffered reason is pretextual merely by questioning the wisdom of

the employer's reason, at least not where, as here, the reason is

one that might motivate a reasonable employer.

To summarize, Combs failed to produce evidence sufficient to

permit a reasonable factfinder to disbelieve Meadowcraft's

proffered nondiscriminatory explanation that it promoted Walker

instead of Combs because Walker had superior supervisory

experience. Because of that failure, the district court should not

have permitted the case to go to the jury. Meadowcraft was

entitled to judgment as a matter of law.

V. CONCLUSION

A plaintiff in a discrimination case based on circumstantial

evidence can avoid judgment as a matter of law by putting on a

prima facie case and by producing evidence sufficient to discredit

in the mind of a reasonable juror all of the defendant's proffered

nondiscriminatory reasons for its actions. In this case, however,

Combs failed to produce evidence sufficient to permit a reasonable

juror to reject as spurious Meadowcraft's explanation that it
promoted Walker instead of Combs to supervisor because Walker had

superior supervisory experience.

51
 Therefore, we REVERSE the entry of judgment in favor of Combs,

and we REMAND the case for entry of judgment in favor of

Meadowcraft.

52