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, 36 L.Ed.2d 668 (1973), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (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 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 & 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
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 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.
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)
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.
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, 91 L.Ed.2d 202 (1986). In conducting our review:
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 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
Combs takes issue with Meadowcraft's view of the law and the evidence. First, Combs contends that he put forward sufficient 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, 125 L.Ed.2d 407 (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.
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 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, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under that framework, the plaintiff has the initial burden
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 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:
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:
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 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,
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 reasons for the plaintiffs 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 plaintiffs prima facie case, is sufficient to permit the factfinder to infer discrimination. The Court said:
Id. at 511, 113 S.Ct. at 2749 (quoting Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 49". (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 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, JJ.).
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
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 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 plaintiffs 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 plaintiffs 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
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:
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 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 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
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 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:
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.
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
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, 126 L.Ed.2d 373 (1993). Nevertheless, the ideas and critiques advanced by Isenbergh's dicta are worthy of some discussion.
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, and Batey precedents. While recognizing the "ostensible conflict"
Because the Walker decision was preceded by a number of earlier Eleventh Circuit decisions holding that a jury question is 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:
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.
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. 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.");
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 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 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
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, 57 L.Ed.2d 957 (1978). Justice Rehnquist further explained:
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 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, 75 L.Ed.2d 403 (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, 104 L.Ed.2d 268 (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:
Sheridan, 100 F.3d at 1069.
Of course, the law is that the jury is not required to make the inference of
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 plaintiffs 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.
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
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. 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
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.
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:
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:
In addition to testifying that both he and Anderson supported Combs for the supervisory position, Lane repeatedly denied recommending Walker for the job:
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:
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 administrator and had supervised others throughout most of his career. Walker's testimony about his supervisory experience, which is entirely undisputed, is as follows:
By contrast, Combs' testimony at trial established that his own supervisory experience was extremely limited:
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
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 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.
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.
Therefore, we REVERSE the entry of judgment in favor of Combs, and we REMAND the case for entry of judgment in favor of Meadowcraft.
BLACK, Circuit Judge, specially concurring:
Although I agree with the majority opinion, I would confine the discussion to those legal concepts directly implicated by the instant facts. The legal principles that control this dispute are familiar and do not require extended explication. Under the McDonnell Douglas framework, a presumption of discrimination arises if a Title VII plaintiff succeeds in establishing a prima facie case. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The defendant may
The majority opinion properly applied these fundamental principles when it determined that Combs failed to adduce sufficient evidence to withstand Meadowcraft's motions for judgment as a matter of law. The evidence offered by Combs would not permit a reasonable trier of fact to find either that a discriminatory reason motivated Meadowcraft or that the legitimate, nondiscriminatory reasons proffered were not worthy of belief. Undisputed evidence established that Walker had superior managerial experience, and Combs offered no evidence tending to undermine the veracity of Meadowcraft's claimed reliance on this factor.
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.
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").
Hicks, 509 U.S. at 522-23, 113 S.Ct. at 2755 (emphasis omitted).
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.
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (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.