IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-12004 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 7, 2005
________________________ THOMAS K. KAHN
D. C. Docket No. 01-07621-CV-JEM CLERK
GEORGE AKOURI,
Plaintiff-Appellant
Cross-Appellee,
versus
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee
Cross-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 7, 2005)
Before MARCUS, FAY and SILER *, Circuit Judges.
ORDER:
The court, sua sponte, vacates the portion of the opinion published on May 11,
2005, designed as Part III B.(2) and substitutes in its place the following:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
(2)
Finding that Akouri succeeded in establishing a prima facie case, we now
address the DOT’s argument that Akouri failed to establish that its proffered non-
discriminatory business reason for not promoting him to the Atkins position 1 was
pretextual. However, this argument is inapplicable where the plaintiff presents direct
evidence of discrimination. Trans World Airlines, Inc. v. Thurston, 496 U.S. 111,
121, 105 S.Ct. 613, 621-622 (1985). Here, Blanchard’s discriminatory comments
made shortly after the decision to promote Atkins and in direct response to Akouri’s
inquiry as to the reasons for the promotion decision constituted direct evidence of
discrimination. Therefore, we reject the DOT’s argument, finding no basis upon
which to reverse the district court’s denial of DOT’s motion for judgment as a matter
of law with regard to the Atkins promotion, and affirm the district court’s decision.
1
The DOT contended that Akouri did not interview well “in regards to his demeanor
during the interview as well as the substance and lack of elaboration in his interview answers.”
2
3