PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-2070
________________________
D.C. Docket No. 94-218-CIV-T-17C
JERRY E. TIDWELL,
Plaintiff-Appellee-
Cross-Appellant,
versus
CARTER PRODUCTS,
Defendant-Appellant-
Cross-Appellee,
______________________________________
Appeals from the United States District Court
for the Middle District of Florida
______________________________________
(February 26, 1998)
Before ANDERSON and CARNES, Circuit Judges, and O’KELLEY,* Senior
District Judge.
O’KELLEY, Senior District Judge:
Carter Products appeals from a judgment entered against it
pursuant to a jury verdict in favor of Jerry Tidwell in this age
discrimination case under the Age Discrimination and Employment
Act, 29 U.S.C. § 621, et seq. (the ADEA). Carter challenges the
district court’s denial of its motion for judgment as a matter
*
Honorable William C. O’Kelley, Senior U.S. District
Judge for the Northern District of Georgia, sitting by
designation.
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of law on Tidwell’s claim that his termination by Carter
constituted age discrimination as well as the district court’s
award of equitable relief in the form of front pay to Tidwell.
In his cross-appeal, Tidwell challenges the court’s grant of
judgment as a matter of law to Carter on the issue of
willfulness. The dispositive issue in this appeal is whether
Tidwell produced adequate evidence to allow a reasonable
factfinder to disbelieve Carter’s proffered nondiscriminatory
reason for terminating Tidwell. We conclude that he did not and
that Carter was entitled to judgment as a matter of law for that
reason.
Facts
Carter Products manufactures and sells health and beauty
care products. Tidwell began his employment with Carter as a
district sales manager in 1972. He later served as Territory
Representative for Carter’s central Florida region, working out
of Tampa, until his April 23, 1993 termination at the age of
fifty.
Tidwell alleges that he was terminated because of his age.
Carter contends that Tidwell’s position was eliminated as part
of a nationwide reduction-in-force (RIF). Carter eliminated
twelve positions, from an original force of 58. While four of
the original 48 sales employees over 40 were discharged, 19 were
retained.
During its reorganization, key accounts, including many of
Tidwell’s, were transferred to regional and divisional managers.
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Carter also developed a new sales philosophy, beginning to
outsource to independent contractors. The number of sales
territories were reduced in order to reduce costs, and it was
determined that Florida could be served by a single territory
manager. At that time there were two territory managers –
Tidwell in Tampa (age 50) and James Booth in Miami (age 26).
Carter determined that it would be best served by a Miami
territory, contending that Miami had more direct accounts and
more independent stores requiring individual attention. Carter
contends that Tidwell’s performance had nothing to do with this
decision. The Tampa territory manager position was therefore
eliminated, its accounts to be absorbed by other workers.
Similar decisions were made throughout the country, with no
apparent pattern of retention according to age (several older
employees were retained while their younger counterparts were
eliminated). Carter explained its methodology used in the
selection process: If there was only one sales representative in
the area to be eliminated, that person would be released; if
there were more than one representative, their relative
performances would be compared. Carter characterized Tidwell’s
situation as falling into the first category.
Procedural History
The EEOC issued a “no reasonable cause” determination to
Tidwell’s charge of discrimination. The EEOC found no cause to
believe Carter had violated any statutes in terminating Tidwell.
“The evidence obtained did not support [Tidwell’s] allegation of
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unlawful employment discrimination.” DX 20. The EEOC explained
in a memorandum that plaintiff’s low rating in his 1992
evaluation “signifies that [Tidwell] was performing below the
reasonable expectations of [Carter].” It reasoned that
plaintiff’s performance “was a factor along with [Carter’s]
other reasons to terminate [Tidwell’s] employment.” DX 20.
Tidwell then filed an action in the District Court for the
Middle District of Florida, claiming he was discharged because
of his age in violation of the ADEA. Before the jury, Tidwell
attempted to prove his claim under a disparate treatment theory,
which requires proof of intentional age discrimination. Tidwell
offered several indications of age discrimination: (1) his 1992
performance evaluation; (2) Carter’s retention of Booth and the
Miami territory; (3) inconsistent reasons given for his
termination.
The trial court denied Carter’s motions for judgment as a
matter of law at the close of Tidwell’s case. Carter then
offered its nondiscriminatory reason, the RIF, for Tidwell’s
termination. The court denied Carter’s motion for judgment as a
matter of law at the close of all the evidence. The jury
returned a verdict for Tidwell and awarded $60,000 in lost wages
and benefits. The amount was doubled as liquidated damages
because the jury found the discrimination to be a willful
violation of the ADEA. The court reserved entering judgment
until it concluded a supplemental hearing regarding valuation
and certain evidence of Tidwell’s side business which he had
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concealed during discovery. The court found that Tidwell had
indeed lied about his side business but rejected Carter’s
unclean hands defense to preclude a front pay award. Instead,
the court ordered a set-off against the front pay award in the
amount of Carter’s expenses associated with the additional
discovery caused by Tidwell’s false testimony. The court
awarded front pay for the period from the jury verdict until
Tidwell’s 62nd birthday – more than eight years. Upon Carter’s
motions, the Court permitted the jury’s verdict on liability to
stand and refused to reconsider its ruling on front pay. The
Court did, however, overturn the jury finding as to willfulness.
Standard of Review
A district court’s denial of a defendant’s motion for
judgment as a matter of law is reviewed de novo, entailing the
application of the same standards used by the district court.
th
Dade County v. Alvarez, 124 F.3d 1380, 1383 (11 Cir. 1997).
Those standards require the consideration of “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 (1986). All evidence and
inferences are considered in a light most favorable to the
nonmoving party. Carter v. City of Miami , 870 F.2d 578, 581
(11th Cir. 1989).
If the facts and inferences point overwhemingly 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
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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.
Id. (footnotes omitted). 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.” Id.
Accordingly, we must determine whether reasonable jurors could
have concluded as this jury did based on the presented evidence.
Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir. 1993).
Discussion
Carter contends that it is entitled to judgment as a matter
of law because (1) Tidwell presented no evidence, statistical or
otherwise, of age bias or discrimination and (2) Tidwell failed
to demonstrate that Carter’s articulated reason for its decision
to include him in the RIF was pretextual. Tidwell disagrees,
arguing that judgment as a matter of law is inappropriate
because he introduced sufficient evidence to permit the jury to
disbelieve Carter’s proffered explanation for his dismissal.
To create a jury question in a discrimination case based on
circumstantial evidence, a plaintiff must establish a prima
facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). A prima facie case effectively
creates a presumption of unlawful discrimination by the
employer: “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
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because no issue of fact remains in the case.” Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)(footnote
omitted). Tidwell established a prima facie case by proving
that he was 50 years old, had worked for Carter for 21 years,
was terminated, and that his accounts were assumed by a 26 year
old with only one year of experience with the company.1
The establishment of a prima facie case shifts the burden
to the employer to produce legitimate, nondiscriminatory reasons
for the allegedly discriminatory employment action. Id. at 254.
To satisfy this 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. If the
employer successfully produces a nondiscriminatory reason for
its action, the presumption of discrimination disappears. Id.
at 255. The plaintiff then has the opportunity to show the
employer’s proffered reason to be pretextual. Id. at 256.
Once an employer offers a legitimate, nondiscriminatory
reason for its action, a plaintiff must show that “there is
sufficient evidence to demonstrate the existence of a genuine
1
Our task is not to revisit whether the plaintiff
below successfully established a prima facie case of
discrimination. “When 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” and the
question of whether the plaintiff properly made out a prima
facie case is no longer relevant. See U.S. Postal Serv. v.
Aikens, 460 U.S. 711, 714-15 (1983) and Combs v. Plantation
Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).
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issue of fact as to the truth of each of the employer’s
proffered reasons for its challenged actions” in order to
survive judgment as a matter of law. Combs v. Plantation
Patterns, 106 F.3d 1519, 1529 (11 th Cir. 1997). If a plaintiff
provides a prima facie case plus evidence discrediting the
employer’s proffered reasons, the plaintiff is entitled to have
the factfinder decide the ultimate issue of discrimination. Id.
at 1531.
The task of this court is to consider the entire record in
the light most favorable to Tidwell to determine whether there
was sufficient evidence for Tidwell to withstand Carter’s
motions for judgment as a matter of law. In order to affirm the
district court’s denial of judgment to Carter as a matter of
law, we must find that Tidwell has cast sufficient doubt on
Carter’s proffered legitimate, nondiscriminatory reasons to
permit a reasonable factfinder to conclude that Carter’s
proffered reasons “were not what actually motivated its
conduct,” Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605
(11th Cir. 1994).
Carter proffered its RIF as a legitimate, nondiscriminatory
reason for terminating Tidwell, eliminating the presumption of
discrimination that attached to Tidwell’s prima facie case. The
court will consider the record evidence to determine whether it
would permit a reasonable factfinder to reject Carter’s
explanation, allowing the case to be submitted to the jury.
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I. 1992 Performance Evaluation
Tidwell’s evaluations show that he met Carter’s
expectations in 1990 and 1991. During his 1992 evaluation, his
supervisor, Sindee Furshman, ranked him below expectations.
Tidwell complained that the evaluation was unfair. He testified
that he asked Furshman several times whether he could get a good
evaluation. The first two times she responded that she did not
know. “The third time I asked her, I said, ‘Sindee, if I do my
job completely perfect, can I get a good evaluation?’ And she
went like that to me (shaking head) and that was it.” Rec. 3-
130.
Carter contends that Furshman’s response was a stray
remark. This incident occurred several months before his
2
termination, an event with which Furshman had no involvement.
Additionally, Furshman’s response in no way suggested that
Tidwell’s age was the reason for his termination. This instance
does not provide the needed “more than a mere scintilla of
evidence” to survive a motion for judgment as a matter of law.
It does not present a substantial conflict in evidence as to
Carter’s purported reason for terminating Tidwell, the RIF, as
to support a jury question.
II. Retention of Booth and the Miami Territory
Carter presented evidence at trial to demonstrate that the
RIF was age neutral, belying any intent to discriminate. Among
other things, Carter’s expert showed that the average age of the
2
Furshman was also eliminated as part of Carter’s RIF.
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sales force actually increased slightly after the RIF. Carter
argues that its elimination of Tidwell’s territory was not a
pretext for age discrimination, as is clear because the
territory was eliminated and has not been replaced. Tidwell
improperly questions Carter’s methodology and process in the
RIF. Tidwell also focuses on the difference in age between
himself and Booth and questions the wisdom of the choice to
retain Booth. However, while Booth absorbed some of Tidwell’s
accounts, he was not hired to replace Tidwell. Tidwell also
points out that he was never offered a transfer to Miami. This
contention is superfluous, since no other workers were offered
transfers and Tidwell himself never suggested the idea. See
th
Zaben v. Air Products & Chem., Inc., 129 F.3d 1453, 1459 (11
Cir. 1997) (employee’s contention that he should have been
allowed to transfer did not present sufficient evidence of
pretext to create a jury question when no other workers were
permitted to transfer either). All of these contentions by
Tidwell are disagreements about the wisdom of Carter’s decision
to retain Booth and the Miami territory, rather than disbelief
in the RIF and its application to Tidwell. “[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.” Combs, 106 F.3d at 1543.
III. “Inconsistent” Remarks
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Tidwell maintains that certain alleged inconsistencies as
to the reason given for Tidwell’s termination allow an inference
of pretext. Carter maintains that the reason for its decision
was based on its reorganization and an evaluation of its
territorial needs. Tidwell points to several instances to show
Carter’s inconsistency.
A few days before his termination, Tidwell was asked to
meet with a supervisor in Atlanta, Tim Cleary, and the head of
Carter’s personnel department, Denise Duca. At this time
Tidwell was told that he had done a great job but that his
position was being terminated due to the realignment of
territory. When Tidwell asked Cleary who was going to take over
the Tampa market, Cleary responded that he did not know.
Kenneth Geissler, Carter’s vice-president of field sales,
wrote a memo regarding the positions which he anticipated would
be affected by the territory realignments. The memo notes two
criteria: (1) whether they are in a market with other Carter
personnel and, (2) if so, how they were selected to be
terminated verses others in their marketplace. As to Tidwell,
the memo notes: “Tampa. Total volume $900,000. Only 7% of
volume done in food. Five accounts make up 80% of business.
Performance issue. Accounts would be covered by telemarketing
or by J. Booth, Angel Martinez.” DX 7.
Tidwell placed great importance on the EEOC “no cause”
determination which noted that performance was a factor along
with Carter’s other reasons for terminating Tidwell. Carter
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argues that the EEOC “no cause” determination did not reflect
any inconsistent statements made by Carter but simply reflected
a conclusion made by the EEOC after reviewing Tidwell’s
performance evaluations.
Although the identification of inconsistencies in an
employer’s testimony can be evidence of pretext, see Bechtel
Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir. 1995),
and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.
1994), the examples in this case do not present such a
situation. At most, the jury could find that performance was an
additional, but undisclosed, reason for the decision; the
existence of a possible additional non-discriminatory basis for
Tidwell’s termination does not, however, prove pretext. See
Zaben, 129 F.3d at 1458-59 (“Although the company gave differing
explanations for the selection of employees to be discharged,
saying on the one hand that seniority played no role in the
process and that only an employee’s performance was considered
while, on the other hand, asserting that [the employee] was
discharged because he had the least seniority, its reasons are
not ... necessarily inconsistent.”).
Conclusion
Tidwell failed to produce evidence adequate to permit a
reasonable factfinder to disbelieve Carter’s proffered
nondiscriminatory explanation that it terminated Tidwell as a
part of its reduction-in-force. Therefore, Carter was entitled
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to judgment as a matter of law, and the district court should
not have permitted the case to go to the jury.
Accordingly, we REVERSE the entry of judgment in favor of
Tidwell, and we REMAND the case for entry of judgment in favor
of Carter.
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