dissenting.
As the majority opinion emphasizes, this appeal concerns the propriety of the district court’s grant of defendant Denny’s motion for summary judgment on plaintiff Logan’s Title VII claim of racial discrimination based upon alleged constructive discharge. Plaintiff does not challenge on appeal dismissal of her other claims, including state-law claims based upon the same set of facts asserted as a basis for her Title VII constructive-discharge allegation. The majority acknowledges that the district court:
[Ajccurately recognized that in order to show that she suffered a constructive discharge, Plaintiff had to come forward with evidence to demonstrate that the *579working conditions [because of racial discrimination] under which she labored were so difficult that a reasonable person standing in her shoes would have felt compelled to resign.
Majority Op. at 567.
In this Title VII action, Eileen Logan claims that once she transferred into the Denny’s Restaurant in Highland Heights, Denny’s discriminated against her and subjected her to a hostile work environment because she is African-American, and that because of Denny’s treatment of her, she could no longer work there and was, in fact, constructively discharged. The majority opinion holds that the district court erred in granting Denny’s motion for summary judgment. Because I believe that the majority opinion is contrary to law in a number of significant and troubling respects, I must respectfully dissent.
An appellate court reviews de novo a district court’s order granting summary judgment. Like the district court, we must view the facts in the light most favorable to the non-moving party. Because the district court may grant summary judgment only if it is clear that on the undisputed facts, or on the facts viewed in the light most favorable to the non-moving party, the moving party is entitled to judgment, the district court may not weigh the evidence, or make credibility determinations or make any findings of fact in ruling on a motion for summary judgment. And this court may not do so either.
The review of this judgnent undertaken by the majority opinion, however, is something other than the de novo review required by the Supreme Court and the precedent of this circuit. In coming to its conclusion that genuine issues of material fact remain for trial, the majority opinion takes judicial notice of “facts” not in evidence, excoriates the defendant for failing to present the evidence in the light most favorable to the plaintiff, holds inadmissible evidence never objected to by the plaintiff either before the district court or before this court, and makes findings of fact. Perhaps most unsettling, the majority opinion says that the district court was required to review the defendant’s motion for summary judgment in light of Denny’s “past history of discriminatory conduct, both to its minority patrons and employees alike, [which] is well known in the jurisprudence and public forums.” 1
The standard of review of a grant of summary judgment requires that we view the evidence in the light most favorable to the non-moving party; it does not permit us to exclude admissible evidence or that to which no objection was raised below. The majority holds that the affidavits of Randy Poplin and Mary Jean delaVega, the two Denny’s employees with the most knowledge about Logan’s claim of constructive discharge, are inadmissible in their entireties, because the Employment Performance Report (“EPR”) prepared with regard to Logan and referred to in those affidavits was not produced. This report was central to Denny’s articulated non-discriminatory reason for removing Logan from her position as a waitress. The record does not reflect, nor does Logan claim, that she raised any objection to that testimony before the trial court, either on the ground that the EPR had not been produced or on any other ground. Neither did she file a motion before the *580trial court pursuant to Rule 55(f) asking for additional discovery before the court ruled on the motion for summary judgment. The majority opinion cites as its authority for disregarding these affidavits Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993). But Moore held that although the evidence was not admissible because the supporting documents had not been submitted, no objection to its admissibility had been raised before the trial court, and the issue was therefore not reviewable. Id. Moore not only does not support the majority’s sua sponte action here, it supports a contrary view.2
There is no question that in reviewing a grant of summary judgment, we must view the evidence in the light most favorable to the non-moving party. The law does not, however, require the moving party to present its evidence in the light most favorable to the non-moving party. The majority opinion points to no authority for its view that counsel for Denny’s has acted “uncon-scionabl[y]” by presenting in its brief a list of the plaintiffs shortcomings as they are reflected in her performance reviews. And I find surprising the majority opinion’s statement that “[rjeviewing Defendant’s brief leads one to conclude that Plaintiffs overall performance as a server has been poor since she began her employment with Defendant.” The table in that brief that the majority finds deliberately misleading is prefaced by these words:
Plaintiffs performance was consistently below Company standards in a number of areas. In accordance with Company procedures, Plaintiffs supervisors performed periodic performance evaluations to advise her of these problems and recommend appropriate corrective measures. The following is a sample of the performance problems brought to Plaintiffs attention through these performance reviews.
(emphasis added.)
Similarly, the majority reprimands Denny’s counsel for misrepresenting the record with regard to the information given to Logan about transferring to the Highland Heights location, stating that the testimony pointed to in Denny’s brief “in no way supports” Denny’s contention that Logan was “warned” about the conditions at Highland Heights. Significantly, the majority opinion does not dispute any of the specific information to which Denny’s brief refers; rather, the majority rests its criticism entirely on the fact that Denny’s brief says that Logan was “warned” about these conditions, when the majority believes that, in fact, Logan was merely “advised” about them. But whether Logan was warned or advised, the record does reflect that Logan was told that she would find the working conditions at Highland Heights different from those at Randall. This requirement that Denny’s present the evidence supporting its motion for summary judgment in the light most favorable to Logan, in my view, has no support in the established law.3 See Thurston Motor *581Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260 (1983) (“Needless to say, only this Court may overrule one of its precedents. Until that occurs, [our prior precedent] is the law, and the decision below cannot be reconciled with it.”).4
The majority defends its finding of facts on appeal as merely bringing “to the fore” evidence that Logan adduced, and says that this comports with venerable precedent concerning summary-judgment review. “Bringing evidence to the fore” amounts to more than viewing the evidence in a light most favorable to the nonmovant, and the majority has gone beyond even that by providing an interpretation of that evidence which Logan has neither provided nor suggested. The majority has couched those interpretations in terms of that would appear to the average reader as making findings of fact.
With all due respect to my panel colleagues, viewing the evidence in the light most favorable to Logan does not permit us, as a reviewing court, to take judicial notice of facts of the type noticed by the majority. The majority opinion says that “we can take judicial notice that a busboy or ‘service assistant’ as Defendant entitles it, is a job classification below that of a waiter or server, particularly at this type of restaurant.” In my view, the exact status of a “service assistant” or “busboy” at this particular Denny’s restaurant, or anywhere else, is not the kind of adjudicative fact of which judicial notice can be taken by this court under the requirements of the Federal Rules of Evidence.5 Although the Rules of Evidence do provide that under appropriate circumstances judicial notice may be taken at any stage of the proceedings, courts of appeals are not in the business of finding disputed facts at all, and certainly the majority’s use of judicial notice ignores the requirement that the parties have the opportunity to be heard with regard to it. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir.2000) (“Rule 201(e) requires the district court to give a party an opportunity to be heard if judicial notice is tak*582en.”)- Significantly, whether by removing Logan from her position as a server and offering her another position Denny’s demoted her is critical to the determination of the claim of constructive discharge.
Even more disturbing, however, is the majority opinion’s reference to articles from the news media and the purported litigation history of Denny’s restaurants to increase the burden upon defendants and to change the standard of review that the district court must use in reviewing the record on summary judgment.6 The standard of review for summary judgment is well-settled; the court must view the evidence in the record in the light most favorable to the non-moving party to determine whether there is a genuine issue of material fact remaining for trial. See McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 508, 512 (6th Cir.2000) (“[Tjhere must exist in the record a genuine issue of material fact.”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The majority opinion, without citation to any authority, adds a significant element:
We are also troubled by the district court’s apparent complacency regarding Defendant’s misrepresentations as well as the district court’s overall handling of the case. Defendant’s past history of discriminatory conduct, both to its minority patrons and employees alike, is well known in the jurisprudence and public forums. Examples of highly publicized cases involving Defendant’s discriminatory conduct include....
Majority Op. at 577.
The opinion then cites several cases in which Denny’s purportedly entered into consent decrees to settle claims of racial discrimination; the opinion also cites and discusses news articles with regard to discrimination claims made against Denny’s. The opinion concludes this discussion thus: “Although we recognize that Defendant’s past record of discrimination is not at issue here, the fact remains that Defendant is no stranger to race discrimination suits, and the district court’s failure to see through Defendant’s tactics and recognize the many genuine issues of material fact is disturbing.” Majority Op. at 578. But Denny’s record of past discrimination- — ■ which is not and cannot be at issue here— has been made a central issue in the majority opinion’s criticism of the district court.
There is no evidence whatever that the district court had any actual knowledge of Denny’s reputed iniquities beyond those alleged in this lawsuit. Even if it did, what I find disturbing is that in reviewing the district court’s decision the majority relies upon outside-the-record hearsay evidence of prior bad acts of the defendant. The evidence that the district court is permitted to review on summary judgment is clearly delineated by Rule 56:
The judgment sought shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). This court must adhere to the same standard. Affidavits, of course, must “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to *583testify to the matters stated therein.” Fed.R.Civ.P. 56(e). The majority points to no authority that would permit,7 let alone require, the district court to take notice of unrelated lawsuits and articles in the news media, not presented — and very probably not admissible8 — in evidence in determining whether the evidence before that court presents a genuine issue of material fact. The majority opinion has thus effected a transmogrification of the standard of review, at least for Title VII defendants which may have been sued for racially discriminatory practices at other times and under different circumstances.
The majority opinion makes numerous findings of fact in reaching its conclusion that the district court erred in granting summary judgment to Denny’s. It finds, for example, that the job change offered to Logan was a demotion; that Logan would have suffered a reduction in salary in the new and lesser position; that the job change was humiliating; and that Denny’s designation of Logan’s assigned station on April 28 as “station eight” was likely intended to refer to the military term for mental instability and thus was intended to humiliate Logan.9 It even infers that Denny’s had, by its actions, “created an intolerable work condition such that a reasonable person standing in Plaintiffs shoes would have felt compelled to resign.” The majority opinion leaves nothing for the finder of fact to do on remand.
Turning to the substance of Logan’s complaint, I agree with the majority opinion that Logan presented sufficient evidence as to the first and second prongs of the prima facie case. I disagree with the majority opinion’s reasoning and conclusions with regard to the third and fourth elements of Logan’s prima facie case: that she suffered an adverse employment action and that she was treated less favorably than a similarly situated individual outside her protected class. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 882 (6th Cir.1996). To begin with, this circuit has well-established precedent governing the determination of whether a Title VII plaintiff has satisfied the third prong when the plaintiff claims constructive discharge as the adverse employment action. In Wil*584son v. Firestone Tire & Rubber Company, 932 F.2d 510 (6th Cir.1991), we held that “[a] demotion within a company does not amount to a constructive discharge unless the proffered employment options would have been ‘so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Id. at 515 (quoting Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir.1987) and Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982)). That standard has been followed consistently in this circuit. See, e.g., Kocsis, 97 F.3d at 887. In Moore v. KUKA Welding Systems, 171 F.3d 1073, 1080 (6th Cir.1999), we explained:
To constitute a discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit. To determine if there is a constructive discharge, both the employer’s intent and the employee’s objective feelings must be examined.
And in Scott v. Goodyear Tire & Rubber Company, 160 F.3d 1121, 1127 (6th Cir.1998), we made it clear that “[i]n the typical discriminatory constructive discharge case, the employer does not overtly seek a discontinuation in the employment relationship but the employee claims to be subjected to intolerable working conditions due to discriminatory behavior.” I see no reason to look to the law of the Fifth Circuit, as the majority does, to determine what constitutes a constructive discharge.
The majority opinion concludes — in part by taking judicial notice of the “fact” that the busboy position would necessarily be a demotion and by holding inadmissible all of the affidavit testimony of Denny’s witnesses — that Logan has demonstrated that Denny’s “conditioning Plaintiffs continued employment on her becoming a busboy created an intolerable work condition such that a reasonable person standing in Plaintiffs shoes would have felt compelled to resign.” The claim of constructive discharge is bolstered, the opinion concludes, because the claimed constructive discharge occurred after Logan was subjected to “disparaging comments and alleged incidents of unfair treatment.” But unless the intolerable work condition was shown to have been created because of Logan’s race, the constructive discharge is not one for which Logan has any remedy under Title VII.
It is therefore important to examine the comments and incidents which Logan claims, and the majority finds, were racial in nature. I would hold that the district court did not err in determining that the record simply does not support such a conclusion, but even if it did, these comments do not rise to the level required to create a hostile work environment. In Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Supreme Court made it clear that a hostile-work-environment claim must be supported by evidence of extreme conduct, and that the “standards of judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ Properly applied, they will filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’ ” Id. at 788, 118 S.Ct. 2275. Although Far-agher was a sexual-harassment case, the Court explicitly relied on authorities raising other kinds of discrimination claims in arriving at its conclusions, including Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971) (holding that “mere utterance of an ethnic or racial epithet which engenders offensive feeling in an employee” does not rise to the level of a Title VII violation); and 1 B. Lindermann & P. Grossman, *585Employment Discrimination Law 349 (3d ed.1996) (citing cases instructing, among other things, that “a lack of racial sensitivity does not, alone, amount to actionable harassment”). Faragher, 524 U.S. at 787, 118 S.Ct. 2275. The Court noted that “[although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.” Id. at 787 n. 1, 118 S.Ct. 2275. And this circuit has applied the Faragher standard in race cases since shortly after that case was decided. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir.1999) (citing Faragher for the proposition that “ ‘simple teasing,’ offhand comments, and isolated incidents” ordinarily do not amount to discrimination under Title VII).
None of the comments the majority characterizes as carrying the inference of invidious discrimination is overtly racial in character. The comment “we don’t serve grits here,” which even Logan admits was made in response to her question about the availability of various breakfast items, carries a racial overtone only if grits were food enjoyed only, or even primarily, by African-Americans.10 The other two comments of which Logan complains, “You’re probably used that ‘first of the month rush,’ ” and “These must have been some of your people from Randall” are, the majority says, invidious because the clientele at Randall was low income and “many may have been” of minority race. This is simply not sufficient to permit a “reasonable inference” that the comments were racial in nature.
The majority opinion’s characterization of the “new tie” incident as racially motivated is similarly troubling. Logan’s deposition clearly demonstrates that she has no idea what Denny’s policy wkh regard to ties was or what the circumstances were with regard to this particular tie. Logan came to work without her tie. She was not provided a new one. A white employee came to work and was given a new tie. Logan admits that she does not know and did not inquire whether the white employee had earlier requested or been promised a new tie, but she does say that the white employee told her “I finally got a new tie.” Nonetheless, Logan complains that if there was only one tie, Logan should have gotten it. The evidence in the record does not support a reasonable inference that Logan was denied a tie because of her race.
Finally, the majority opinion holds that Logan adduced “copious” evidence with regard to the second prong of the constructive discharge analysis: whether Denny’s intended by its actions to force Logan to quit her job. The offensive comments referring to customers from Randall Park Mall, and Denny’s treating other servers more favorably than Logan, when taken together with the change in position, the majority says, are more than sufficient to create a genuine issue of fact as to Denny’s intent. But the comments, as I have explained, are not racial in nature, and Logan presented little evidence that Denny’s in fact treated other servers better than it treated her.
The final element in the prima facie case is that Denny’s treated similarly situated individuals more favorably than it treated Logan. Here again, the record does not support the majority opinion’s conclusion that Logan presented sufficient evidence to create a genuine issue of fact with re*586gard to this element. The majority opinion correctly says that this court’s precedent requires that we focus on whether the plaintiff is similarly situated in all of the relevant aspects to those employees to whom she compares her situation. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998). The majority then holds that the fact that Logan transferred into the Highland Heights restaurant where the other servers and their schedules were already established is not a relevant aspect of Logan’s employment status. I disagree. In my view, this is probably the most relevant comparison, particularly with regard to Logan’s claim that she should have been given better hours and better locations in the restaurant. Logan’s own deposition testimony indicates that the servers were vocal about the fact that they did not want their schedules changed because of a new server. In any event, Logan named only one Caucasian server who she claimed, was given more hours and better locations in the restaurant than she was. However, Logan admitted that Joy Redmond, an African-American server who had been at the Highland Heights location for some 18 years, was also given better hours and more lucrative locations than Logan. The majority opinion discounts this admission on the basis that Redmond was not a full-time server, but the record reflects that after first identifying Redmond as a full-time server, Logan later said that she did not know whether Redmond was full-time or part-time. There is no evidence in the record that Redmond was part-time. Logan claims that no server receiving a Mystery Shopper report similar to hers was ever subjected to having the report posted. She identifies no other server, however, who ever received such a report. Logan identifies no other server who received a report similar to hers who was not told that her continued employment was conditioned on her taking a position as a service assistant, nor does she claim that she attempted to obtain this information through discovery but was denied the opportunity to do so. Finally, Logan claims that other African-American transferees from Randall Park did not last long at Highland Heights, but she provides neither the identities of such persons nor any information about their employment at or departure from Denny’s. In short, I believe that Logan failed to present evidence from which a jury could conclude that she was treated less favorably than non-minority servers at the Highland Heights store.
Because I think that Logan failed to present sufficient evidence to make out a prima facie case, I would affirm the district court’s grant of summary judgment to Denny’s. However, I would also hold that Logan wholly failed to present evidence from which a jury could conclude that Denny’s articulated non-discriminatory reason for its actions was pretextual. The majority opinion implies that Denny’s did not even succeed in presenting such reasons because it did not produce the specific customer complaints or evidence that Logan was counseled about them. But Denny’s, of course, was required only to produce some evidence to support its articulated non-discriminatory reason. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). Denny’s clearly did so. And the majority’s conclusion is facilitated by its earlier mistaken holding that the evidence Denny’s did produce would be disregarded. Logan’s con-clusory opinions that non-minority servers received better treatment than she are not sufficient to prove pretext, and the record simply does not contain factual support for the majority’s conclusion that “a reasonable person could conclude that Defendant took calculated efforts to portray Plaintiff *587as being a poor server, and humiliated Plaintiff into resigning because she was a black server who was actually very good at her job and posed a threat to her white counterparts.” 11
In sum, Logan presented some evidence that the people at Denny’s, including some in management, treated her poorly or insensitively. See Miles v. General Motors Corp., No. 85-3856, 1988 WL 27498, at *3 (6th Cir. Mar.31, 1988) (“The court appeared to rest on a general feeling that Miles had been treated shabbily, rather than on any evidence that would justify the ■conclusion that management’s stated reasons were non-existent or pretextual”). But she was required to present evidence that she was constructively discharged because of her race. She did not carry that burden.
Even if the majority were correct that Logan carried her burden in resisting Denny’s motion for summary judgment, that would not warrant the majority’s harsh criticism of the district court judge and defendant’s counsel. At most, the district court’s judgment might constitute legal error, and Denny’s counsel did nothing more than aggressively represent Denny’s, which is precisely what professional ethics mandate that Denny’s counsel do in our adversarial system.
For all of these reasons, I dissent.
. Thai Denny's may have previously settled or have been the loser in another proceeding based upon discrimination charges involving entirely different parties and entirely different facts, and even a different geographic locale, is irrelevant at trial in a subsequent proceeding. In this case, the decision at issue was rendered at the summary judgment stage with no evidence of any prior discriminatory conduct by Denny’s.
. The majority’s citation to Taft Broadcasting Company v. United States, 929 F.2d 240 (6th Cir.1991), to bolster its position exacerbates the error. Taft did not address an appellant's raising an issue for the first time on appeal in the reply brief, which is the last word in appellate briefing, and Taft made very clear that our forgiving what is ordinarily a waiver is the exception, not the rule. We invoke that exception to " 'prevent manifest injustice and to promote procedural efficiency,' " Taft, 929 F.2d at 244 (quoting United States v. Baker, 807 F.2d 1315, 1321 (6th Cir.1986)), and only when doing so "serves an over-arching purpose beyond that of arriving at the correct result in an individual case.” Foster v. Banlow, 6 F.3d 405, 408 (6th Cir.1993). The majority’s invoking that exception here does not pass muster under either Taft or Foster.
. To compare the presentation of facts in Denny's brief to the facts in Cunningham v. Sears, Roebuck and Co., 854 F.2d 914 (6th Cir.1988), the case the majority cites to sup*581port its finding of "deliberate misrepresentation” is to compound the error. Cunningham was a case in which the plaintiff, during the course of trial, learned that a juror had falsely-testified during voir dire. Not until after the jury returned its verdict — which was adverse to the plaintiff — did the plaintiff or his counsel advise the trial court of this fact. The trial court denied plaintiff's motion for a new trial based on the juror’s false testimony and the plaintiff appealed. In the plaintiff's appellate brief, counsel made no mention of his client’s knowledge during the trial that the juror’s testimony was false; did not include in the joint appendix the trial court's findings on the matter; and stated only that "[wjithin several days after the conclusion of the second trial of this action, it was learned that a juror ... had failed to completely and correctly answer a question posed by the Court during the voir dire.” Id. at 916 (emphasis omitted). This court found counsel's rendition a "serious misrepresentation of the facts.” Id. That is a far cry from the conduct of counsel here.
. See also Robinson v. Central Brass Mfg. Co., 987 F.2d 1235, 1239 n. 1 (6th Cir.1993) ("More important, we have no authority to overrule the Supreme Court.”).
. The taking of judicial notice is governed by Rule 201 of the Federal Rules of Evidence, and provides, in pertinent part;
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
. I do not question that Denny’s has a history of racial-discrimination litigation. But any evidence of that litigation was neither before the district court in the record on summary judgment, nor relevant to these proceedings. I use the word "purported” to underscore the impropriety of the majority's venturing outside the record in this case.
. The majority's citation to Ieradi v. Mylan Labs., Inc., 230 F.3d 594, 598 n. 2 (3d Cir.2000) and the cases cited therein does not support the majority’s use of newspaper articles to bring Denny's racial-discrimination litigation history to the fore in this case. In each of those cases, the articles or books of which the appellate court took judicial notice were material to the specific factual allegations and legal issues raised in the case in which that notice was taken.
. It is one thing to attempt to offer such evidence at trial, where the defendant would at least have the opportunity to object, not only because it is patently hearsay, but on grounds, for example, that it violates Rule 404(b) of the Federal Rules of Evidence. See Becker v. ARCO Chem. Co., 207 F.3d 176, 192 (3d Cir.2000) ("Accordingly, because Becker has failed to articulate how the Seaver evidence fits into a chain of logical inferences pointing towards ARCO’s intent without involving the inference that because ARCO committed the first act it was more likely to have committed the second, ... we cannot agree with the district court's conclusion that the evidence was admissible under Rule 404(b) to establish ARCO's intent to discriminate against Becker.”). And even if this evidence were found to be admissible under Rule 404(b) as relevant intent, see Hogan v. American Tel. & Tel., 812 F.2d 409 (8th Cir. 1987), the defendant would be entitled to a determination under Rule 403 that its probative value substantially outweighs its prejudicial effect. Here, the majority advocates the consideration of such evidence, without notice to the defendant, and even criticizes the district court for failing to consider the evidence sua sponte.
.Nowhere in the record was I able to find any indication that anyone other than the panel majority even recognized this possibility, let alone drew the inference.
. Such a contention would come as quite a shock, I would think, to the people of all races who have grown up in the South, not to mention the people in the rest of the country who have learned the virtue of grits.
. This latter observation is, of course, a determination of the ultimate fact at issue here.