C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants

ARNOLD, Before RICHARD S. Chief LAY, Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, Judges, Circuit en banc.

LAY, Judge.* Circuit This discrimination case comes before this court on rehearing en bane. Our panel earlier opinion, affirming the district court’s denial of a new trial and the denial of post-verdict judgment motion for as a mat- law, ter of appeared in 84 F.3d 1074 Cir.1996). argument At oral before the court banc, 11, en KARE appeals from the court, of the district challenged only sufficiency of the evidence and ar- gued that the failed'as a matter of law to make a jury. submissible case to the Because deem this to be signifi- issue cant appeal, claim on clarify in order and the standard to be in followed this circuit in cases, primarily we ad- dress that issue.

KARE a Twin station, Cities television refused renew C. Thomas con- tract sportscaster as lead for a fifth three- year term. Ryther when was termi- nated, fifty-three years he was Ryther old. sued KARE 11 Co., and its parent, Gannett Inc. (collectively 11”), “KARE alleging a vio- lation Age Discrimination in Employ- (“ADEA”), ment Act §§ 29 U.S.C. 621-634. Following Ryther’s favor, verdict in court, the district the Honorable David S. Tinkham, Thomas argued, W. Minneapolis ,Doty presiding, denied a motion for a new (Karen Clauson, brief), L. on the for defen- and, trial alternatively, a motion for judg- dants-appellants. ment as a matter of law. The court entered Roback, Donna L. argued, Bloomington judgment awarding Ryther $1,254,535 in (Marcy Kreisman, brief), R. plain- pay, back pay, front liquidated damages, and tiff-appellee. attorneys’ fees. See v. KARE * ARNOLD, RICHARD Judge, LOKEN, S. Chief McMILLI- Judge, Circuit dissenting filed a AN, WOLLMAN, opinion. MAGILL, MORRIS AR- SHEPPARD BOWMAN and Circuit FAGG, NOLD, MURPHY, Judges, join Judges, join opinion and Circuit this entirety. this its in WOLLMAN, BEAM, HANSEN, opinion FAGG, MURPHY, entirety. in its Court HANSEN, Judges, join Circuit dissenting BEAM Part I.A. of Judges, join this Circuit Parts FAGG, BEAM, opinion. HANSEN, I, II, HANSEN, opinion. and III of MUR- the Court's PHY, Judges, join Circuit in Part II.A. of Judge, Circuit in the concurs result reached in FAGG, dissenting BEAM, opinion. and HAN- opinion. Part IV of the Court's SEN, Judges, join Circuit in Part II.B. of this FAGG, HANSEN, BEAM Judges, Circuit dissenting opinion. BEAM, And FAGG and Cir- separate opinion, filed a .concurring part Judges, join cuit in Part dissenting II.C. of the dissenting part. opinion. Survey. Gallup got she ap- sion (D.Mmn.1994). KARE after F.Supp. 1510 V-194, V-197. banc, Tr. af- now court, acting en This peals. court. the district judgment of firms the the Atkin- years, In earlier firm research Communications

son-Fams market research (“Atkinson”) performed I 1990, in ratings. KARE ll’s determine sports anchor served the Atkinson KARE found part July 1979 until from December Channel sought new incomplete, research three-year four to a series pursuant commissioning the 1990 research market purchased contracts. Gannett/KARE Survey Gallup re- Survey. Gallup The 1990 Mason Janet in 1988 station seventy-six percent Ryther had ported of news. president vice became Rosen, a whereas Mark recognition, viewer mem- time, sports department’s the At that WCCO, had competitor at sportscaster Randy and Jeffrey Passolt included bers was recognition. Rosen percent eighty-one In the sum- forty. Shaver, both under in Ryther number two one and number rated fifty 1988, approximately Ryther was mer of The market. Twin Cities’ overall began responsibilities Ryther’s age. years Ryther “under- Survey reported that Gallup shortly after Mason’s year, that changing strong a not he was and that perform[ed]” KARE president. to vice appointment , KARE 11. player for Extra, a Prep Sports Ryther from removed Brook, Mason, Rios urges that KARE Shaver, then co-anchored he program to renew not decision made the Modig and Linda 1989, year in which during and 1990, upon re- August in contract Ryther’s manager, Mason station Brook became Rios pri- Survey. Gallup The ceipt of the 1990 news o’clock the six Ryther from removed whether overall at trial was mary issue segment a recreational him to assigned reason for the true research was market replaced Passolt o’clock news. five on the for dismissal, pretext merely Ryther’s during six anchor sports Ryther as he that Ryther asserts age discrimination. was May Shaver slot. o’clock time that market show offered evidence posi- sports, a producer named executive for his reason the true not was research under Ryther was entitled tion to which to dismiss dismissal, decision fact many of assumed Shaver contract. time, to that prior made was him duties. planning organizational merely a was biased the research Ryther 1991, shortly after On March discrimination. unlawful pro- being from excluded he was discovered court, denying KARE The district Mason confronted photos, motional law, a matter of motion for told Mason his contract. the status about from carefully summarized be- be renewed not would his contract him reasonably find that jury could market research. in the failed he had cause Ryth- refusing to rehire reason proffered in the district detailed events After several Doty Judge found discrimination. masked er 1515-16, F.Supp. at opinion, court’s for the sufficient was there lawsuit. filed this 11 and KARE Ryther left the defen- that: reasonably to conclude Ryth- not to renew the decision made dants Ryther’s con- not renew The decision Survey; Gallup the 1990 before Brook, er’s contract Mo- Richard by Rios made tract was transferred had been Ryther’s duties some Operations, of Broadcast President dig, Vice Ryther’s contract people younger was asked Rios Brook Mason. When performance positive despite not renewed relied she research market trial what 11; de- KARE 11 evaluations Ryther, she re- about decision making the to believe leading him Ryther by research, ceived “Gallup” that it was sponded pre- commendable, in order his work survey conducted reference alleged upon his improving him from vent Organization Gallup by the 11 in June Survey was Gallup deficiencies; the 1990 Mason, (“1990 Survey”). Tr. IV-136. Gallup Ryther would so that designed purposely deci- at that arrived she similarly, said that get rating, dine, a fair masking thus the discrimi- 450 U.S. at 254 n.& S.Ct. at natory termination; for his reason 1094 & n. occurs, 1095. Once this provided RARE 11 a hostile Supreme work environ- Court pro articulated the overall ment for age. Ryther, of his cess: F.Supp. at 1715-18. (whatever “production” defendant’s effect) persuasive its having made, been It settled that will well we proceeds trier of fact to decide ul reverse verdict for jury’s insufficient evi question: timate unless, viewing dence after the evidence in n proven “that intentionally defendant light verdict, favorable to most plaintiff]”, discriminated [the [Bur juror conclude that no reasonable could have dine, 450 U.S. at 101 S.Ct. at 1093]. returned a verdict for the non-moving party. The factfinder’s disbelief of the reasons Buerger, Gardner put forward (particularly the defendant Cir.1996). accompanied disbelief is suspicion mendacity) may, together with the ele II ments of the suffice show Thus, intentional governing The law discrimination. re the allocation of eviden- jection of the tiary proffered burdens defendant’s in discrimination rea is well cases sons, permit will the trier of fact generally established. See to infer Mary’s St. Honor the Hicks, ultimate fact of 507-12, 113 Ctr. v. intentional discrimina 509 U.S. S.Ct. tion, 2742, 2747-50, 125 and the Court of (1993); Appeals was L.Ed.2d 407 correct Texas that, when it upon noted Dep’t rejection, such Community dine, v. Bur of Affairs 248, 252-56, “[n]o proof additional 1089, 1093-95, U.S. of 101 S.Ct. discrimination is required,” F.2d, (1981); (emphasis L.Ed.2d 207 at 493 Douglas McDonnell add ed). Green, Corp. 792, 800-06, v. 93 S.Ct. 1817, 1823-26, (1973). 36 L.Ed.2d 668 Since Hicks, 509 U.S. at 113 S.Ct. at 2749 Hicks, Hicks, this applied Burdine, court has (footnote omitted). and Douglas age McDonnell to several dis Thus, Hicks, according to plain when the However, crimination cases. for the sake of tiffs pretext evidence of challenges the de guidance to courts, the bar and district we fendant’s articulated nondiscriminatory rea opportunity, take this sitting bane, en son, such may evidence serve as well to unify clarify and our understanding of the support a reasonable inference that discrimi Supreme Court’s standard. pre The facts nation a motivating was reason for the em here, sented inas fall under stan ployer’s decision. As Supreme the Court has require dard that not proof does of direct observed, “when legitimate all reasons for plaintiff for the to make a rejecting applicant an have been eliminated jury.1 submissible case for the possible as employer’s reasons for the ac tions, it likely is more than employer, not the cases, In discrimination it is now who generally only assume acts with well plaintiffs settled that a presentation of a reasons, some based his decision on an im prima legal facie case creates presumption permissible consideration [age].” such as of unlawful discrimination. This presump Furnco Corp. Waters, Construction v. places tion an obligation upon employer the 567, 577, U.S. 2943, 2949-50, produce legitimate, evidence of a nondis (1978). L.Ed.2d 957 criminatory reason for plaintiffs the dis charge. If employer the burden, carries this We find from recent en banc legal presumption of unlawful discrimina decision the Third Circuit. In Sheridan tion “drops picture.” Hicks, of out 509 v. E.I. Co., DuPont de Nemours & 100 F.3d 2748; U.S. at (3d 113 S.Ct. at Cir.1996) (en accord Bur- banc), the court set imperative 1. It recognize ser-Busch, is Inc., that under the (8th Cir.1996), 96 F.3d 1095 nor submitted, facts case, this is not a reduction-in-force a mixed-motive Radabaugh Zip see v. Feed Bancshares, Inc., Mills, see v. Nelson Boatmen’s (8th Cir.1993), 997 F.2d 444 where (8th Cir.1994), 26 F.3d 796 v. Kehoe Anheu- apply. rules different discrimina- of unlawful presumption legal interpretation standards same forth facie case prima of the elements The tion. Judge Dolores Chief now. we do Hicks of accompa- they are however, remain, wrote: K. Sloviter of disbelief pretext nied hold Hicks to have understood [W]e they explanation, proffered the defendant’s case the elements plaintiff. jury to find may permit rea- proffered defendant’s disbelief that, plaintiff for the say is not This beyond findings, threshold sons is necessari- succeed, proving pretext simply re- not but permitted, jury is emphasize that enough. We ly leading it to inference to draw quired, enough make a by itself not will dis- intentional there conclude alone, is, standing in- if it case submissible crimination.2 age inference a reasonable with consistent 1066-67.3 Id. Furthermore, Hicks as the discrimination.4 per- still must explained, Court pro employer sum, when circum- the facts from all jury, ac suade for its nondiscriminatory reason duces decision stances, employment longer creates no case tions, prima facie discrimination, case all this and that not acknowledge, as expressly not does Sheridan 2. is about. pretext does today, that evidence dowe 660. dis- Id. at intentional support an inference always Barber, the evidence note, cases both Rothmeier there weAs crimination. inference of support a reasonable pretext did pretext is inconsistent evidence of where Circuit, sitting The Seventh See age discrimination. discrimination. intentional an inference banc, principle Visser explained this text. accompanying en 4 and n. infra (1991) Assoc., Engineering Packer federal that other banc). noted (en Judge Circuit observed: Third Posner court, in- including appeals, courts protect {T}he discrimination law does not manner, citing cases ain similar terpreted Hicks employee being an older good fired without Circuit, the Circuit, Second D.C. from the protects being cause. It him from fired Circuit, Circuit, the Seventh the Sixth Fourth age. employer because of his pretext-a If the offers a Circuit, Circuit. Circuit, the Ninth Eighth the phony why reason-tór it fired the (citing Shaw Sheridan, at 1067-68 100 F.3d See employee, permitted, then the trier of fact is 1996) (8th Servs., Cir. Health v. HCA although compelled, not to infer that the real Beam, IT.)). Loken, Arnold, (Morris age. just reason was Douglas This is the test of McDonnell rp. Co v. Green. 411 U.S. principle. For this reflected cases have 4. Our (1973), transposed 36 L.Ed.2d S.Ct. Advisers, v. Investment example, in Rothmeier setting. age discrimination the Cir.1996), plaintiff the Inc., for proffered reason employer’s argued that the showing that false was the termination law, that ais reason employment pretext, in A he discharged was that he was reason actual claimed the action employer for offers company's employer about his confronted disbe- court discriminatory and that The id. at See alleged violations. SEC employer lieves, allowing that an inference em- judgment for summary affirmed court discriminatory for reason trying to conceal Airlines, is American ployer. Barber reason ... an unethical not It is action. pro- his Cir.1986), employees in the F.2d 658 [the If action, a reason. for such aor mask for disparate treatment. age group claimed tected [the really ... because fired employee was] nondiscriminatoiy employer asserted The whistleblower, because employee] was lack their was disparate treatment reason was, as it loyalty primary employee's] [the proof of employees’ The qualification. of been, company] rather [the have group were should age within their others was that compa- CEO] person [the of to the than them. privileges denied given course), points, of closely (these related pro- ny not pretext did of that this found It man. a bad CEO] is [the show age discrimina- of inference reasonable vide a [the show tend to even show or does observed: S. Arnold Judge Richard tion. age. It his fired because employee] was treated, unfairly plaintiffs were if even For because opposite, anything to show tends past, in the unjustly favored were if others even dis- his employee] was fired [the if loyalty can age discrimination no inference drawn, though not natural CEO] the [the employ- simple reason not fired was that he is inference inevitable treat- preferential given allegedly were ees who age Certainly had his age. his because nothing They were in "young.” were not ment loyal- of his direction to do with any kind plaintiffs. If as age group same therefore, here, is ties. it operating is discrimination upon based intentional discrimination.5 509 We turn to the fundamental issue in U.S. at n. S.Ct. 2750 n. 4. this ease: produced suffi Obviously, age all cases, cient evidence to jury allow a reasonably to produce must sufficient evidence of find that KARE 11 intentionally discrimi prima elements of the facie ease and nated him on the basis of his age. necessary, where adduce sufficient proof of Although much of the evidence is circumstan pretext to meet the traditional tests of tial, sum- agree with the district court’s careful mary judgment as a matter analysis that a jury reasonable could infer Rothmeier, law. (“Inten- See 85 F.3d at 1335 that KARE ll’s asserted reason dis tional discrimination vel non is like charge other false, was and that the evidence was question ultimate of fact: either the evidence sufficient to allow to find that KARE sufficient a finding that the fact 11 engaged in age discrimination.6 proven, not.”) has been or it is

A. The Market Research as a Whole Ill Ryther urges that the record is replete KARE 11 does not contend that with evidence that his research ratings re- failed to establish a case of flected abilities, not his but KARE ll’s fail- discrimination. ample There exists evidence ure to emphasize sports. The plenary evi- that the reasonably believe that dence to this effect included the testimony of (1) Ryther was protected within the age Ryther that, just days before dismissal, (he group fifty-three years old); (2) as Baldwin, Paul KARE ll’s assistant news di- manifested his contract rector, renewals and him, told “[t]he research your isn’t evaluations, ll’s own he fault,” had been explained showing performing job aat satisfactory level for relative to WCCO’s Mark Rosen was the (3) years; over twelve his contract in 1991 result of promotion WCCO’s Rosen, its renewed; (4) was not replaced KARE 11 ownership of rights broadcast in several ma- him with younger (Jeff person. jor Passolt sporting events, emphasis and its only thirty-three years sports generally. Other evidence showed high performance rating as that Ryther continued to ask for better Ryther.) sports promotions, but was fact, denied. (citations omitted). Id. at 657 ‘eyewitness’ seldom be testimony toas the em ployer's processes”); 3, mental id. at 714 n. Thus, 103 5. Hicks makes it clear that the ("As S.Ct. at lawsuit, any 1481 n. 3 in plain the must show false, “both that the reason was and may prove tiff his case direct or circumstan that discrimination was the real reason.” 509 tial evidence. The trier of fact 515, should consider U.S. at , S.Ct. at 2752. "It lf3 is not evidence, all the giving it weight whatever enough, er; words, and in other to disbelieve employ- the deserves.”); credence it International Bhd. the factfinder plaintiff's must believe the ex- of States, Teamsters v. 324, United planation 358 n. of intentional discrimination.” Id. at 44, 1843, 1866, 97 519, S.Ct. (1977) 52 113 clear, S.Ct. at L.Ed.2d 396 equally 2754. It is how- ("[T]he ever, Douglas McDonnell "rejection that formula does proffered not re defendant's quire proof direct discrimination.”); permit reasons of will the trier of fact McDon to infer the Douglas, nell 804-05, 411 ultimate U.S. at fact of intentional 93 S.Ct. at discrimination and (listing 1825-26 types .... proof '[n]o various of additional of circumstantial discrimination is required.'" 511, evidence as showing pretext); relevant to Id. (inter- at of 113 S.Ct. at Price 2749 Waterhouse omitted). Hopkins, 228, v. 273, nal plained, 490 citation U.S. As Justice 109 Scalia ex- 1775, 1802-03, S.Ct. "rejection 104 (1989) L.Ed.2d 268 proffered of defendant’s (O'Connor, J., concurring judgment) reasons discrimination,” enough is in (empha at law to finding sustain a of original) sis in (noting "requiring that plain but "there still must be a find- prove tiff to ing [by that one factor finder of was fact] of the definitive discrimination." Id. 4, cause at 511 n. decisionmakers’ action S.Ct. at be 2750 n. 4. tan to declaring tamount [anti-discrimination law] 6. See United States Postal Serv. Bd. inapplicable Governors decisions”); to such of Nitschke v. Aikens, 711, 716, U.S. Douglas McDonnell Corp., (1983) 75 L.Ed.2d 403 (recognizing Cir.1995) (“An that age-discrimination plaintiff may the "sensitive and difficult" issue of rely intentional on either direct or circumstantial evidence frequently discrimination will proven by prove cir to that he has been the victim of unlawful cumstantial pretext, evidence of as "[t]here discrimination.”). will added). (emphasis E2 App. at Appellee’s was “[sports] that Brook admitted Rios 1990, Barry August Likewise, as as late about,” and concerned I was that area 11 in hired KARE Nash, coach a talent relatively was “sports that testified Mason to Mason Ryther about wrote parts to other comparison in unimportant” Baldwin: Presi- Gallup Relatedly, Vice newscast. Ryth- that Newport admitted Dr. Frank dent to create effort for the to Tom Hats off to KARE part in due showing might er’s Inno- appeal. more universal reports with noted sports promotion poor ll’s footage Musketeers like the Three vations “unusual” was recognition fencing Rosen’s are piece begin to he used own ll’s KARE despite Yet sportscaster. right direction. step certainly a in remained promotion, sports lack E5.9 Id. market, in sportscaster two number ll’s Rosen, KARE and above however, only to consider- significant, second Most Randy Shaver.7 evidence, notwith- conflicting Passolt Jeff own ation is reports, Atkinson earlier standing the it that, although little doubt can be There perfor- Ryther’s review personal Mason’s Atkinson the 1981 it before had gave him She March mance reject reasonably research, could highest “commendable,” the second rating of Ryther’s upon reliance alleged ll’s KARE “his work indicated possible, mark ground ratings on the market low job accurately; total quickly done is rewarding kept KARE re- met.” Mason’s are responsibilities negotiated fact, KARE performance. an- part: “As stated Ryther also view of substantial him Ryther and awarded with key players/con- & the market knows chor: interim different in three salary increases product— good put on taets[;] he wants renew- contract These three-year contracts. sports As ideas.... trying new open that, in this finding justify easily als rela- working developed good director —has performance Ryther’s period, interna & shakers the movers tionship with to fulfill adequate than more With sports world.” college & professional interests.8 programming late written commendation this bind of readily understandable it as March training Wilder, a 1989, Lilyan May market reject prior jury could how the 11, copied a letter consultant rear as the “underperformance” research of review- Ryther after Mason, written Janet termination. son for training session. in a performance ing his part: read letter alleg- “research” assuming that the Even Atkinson both upon included edly relied you again to see pleasure It Survey, con- Gallup reports and your authority, Your you. work sufficient there is it, clude the essence “sports” and sense played little it find that jury to reasonable play-by-play timing, your Your excellent. to retain not ll’s decision in KARE no role posi- all are strong voice good, your in 1991. Ryther tive. SHAVER pro- RANDY sports poor of to the evidence In addition 7. primarily a mat- improvement is His continued believed motion, reasonably could have jury I viewed the airchecks None newscast of content. ll's ter of Ryther's evidence especially personnel, was memorable following its because work gained a featured competent, following simply programming way. It was any of its creative but "Cheers,” example, sportscasting. newscast. preceding the animated p.m. newscast. the 10:00 followed PASSOLT JEFF delivery His apply to criticisms same The Jeff. a new three- negotiated herself Mason 8. exception- It is professional. is relaxed al, Ryther. year contract sawI stuff none primarily because content. especially creative featured time, part about Nash wrote same At the added). (emphasis E6-E7 Id. at Passolt, Ryther’s eventual Randy and Jeff Shaver replacements: younger Ryther’s B. Claims that Gallup the 1990 KARE 11 Ryther’s dismisses argu Survey Was Biased ment designed that it Gallup Survey in a manner unfavorable to him as an irrele that the testified 1990 Gallup Sur- vant argument is “without foundation vey questions designed were both and inter- and intrusive of KARE’s judgment.” business preted provide picture an incomplete of Reply Br. at 8. KARE ll’s statement not perceptions viewers’ performance. He only Ryther’s mischaracterizes attack on the initially challenged the 1990 Gallup Survey’s survey, which plainly is a claim that methods as incomplete an means of obtaining biased, survey was but is incorrect as a mat concerning performance. research ter of law. Supreme As the Court unani mously Burdine, observed in the fact “that Gallup surveyed a sample random of view- employer misjudged qualifications ers using two “Q methods: a score tech- [plaintiff] does not in expose [the nique” open-ended questions. itself Q The employer] to ... liability, although may this score technique employs multiple questions probative he employer’s rea measure recognition audience approv- sons pretexts are for discrimination.” 450 al (particularly strong dislike) like and U.S. at 101 S.Ct. at (emphasis personalities. selected Ryther was among added). may thus consider as whol twenty-five on-air personalities included in ly relevant both whether the 1990 Gallup portion this survey. Survey designed in a manner that from Open-ended questions, by contrast, allow the outset Ryther, disfavored and whether viewers to persons déseribe identified survey actually opposed sound —as words, their own Gallup’s description pretextual upon which to em make —basis “designed to help gain [stations] ployment more decisions. complete understanding of what viewers It remains an open question whether, key think personalities.” about For example, standing alone, this evidence would support Gallup Survey viewers, asked “How jury’s verdict. But we are concerned you would Jeff describe Passolt? What with whether the overall supports comes to you mind that particularly like or reasonable inference that age motivated dislike about him as a newscaster?” The ten KARE ll’s actions. 509 U.S. at key personalities Rosen, included Passolt, 113 S.Ct. at 2749. end, To that and KARE ll’s anchors, other lead among attack on survey probative. is The ulti Ryther, however, others. was excluded from concern, mate course, is whether the em portion research. ployer gave an honest explanation of be its havior. See Harvey v. Anheuser-Busch, Ryther also notes Janet Mason’s admission Cir.1994). Yet, in in advance of the research she told things, nature of evidence that the defen Gallup that one of the “important issues” dant employer says it relied on market re about which KARE 11 sought information search later shown to be inaccurate was “the sportscaster position.” Although assist the finder of fact in determining Mason identified Passolt and Rosen “key employer whether the giving personalities” honest for purposes of the research explanation of its Burdine, actions. See project, she did not so Ryther. characterize U.S. S.Ct. at 1096-97. Rather, justified she the omission open- questions ended about on the As held, the district court reason- grounds that their inclusion would have ably made could have found KARE explana- survey the long” “too and that ques- similar tions to “trivial” and inferred that the real had tions been asked about him in 1989 reason the defendants Ryther omitted from research conducted Atkinson. Mason also open-ended the questions was a fear that the admitted, however, that the 1989 Atkinson results of survey the would undermine their project such asked “free response” questions age-based decision not to renew his contract. concerning each of the ten other “key per- Relatedly, a jury reasonable might also infer sonalities.” that, if it was unwieldy or redundant re- to

841 11 transferred KARE and 1988 tween 11 KARE Ryther, about questions such peat sports the of members younger to ques- his duties repetitious such have excluded to ought her (2) Mason assumed when department; as well. Rosen and Passolt about tions 1988, KARE in. supervisor Ryther’s jury could have as role words, reasonable other Kurken, told editor, costly Marie managing and ll’s that, redundant it was reasoned because Mason Ryther, it back” [his] about to “watch questions him open-ended ask to him, number he “was open-ended and costly get” to ask out to and “was redundant was list, Passolt, get oth- of the to out Rosen, list, hit on her her about one questions (3) Ryther were room”; all of whom treated Mason personalities,” “key news eight that er research. anything Atkinson to do in the 1989 seem though he “couldn’t as included over, Ryther he (4) include took 11 not Mason did KARE when right”; and That reasonably Survey Gallup member the 1990 being a valued portion of from “went already decided had a—in that KARE to almost suggests department sports news staff Moreover, dis- the as Ryther. And incompetent. terminate eyes, as an Mason’s Janet delay the between stated, long court underlined trict that kept happening incidents Ryther’s of the time results It research Kurken. Marie of words those verified suggests the reasonably of dismissal notice happen- happening happening and kept Ryther to .provide not want addition, defendants there I them.” ing, noted so weaknesses, his to address opportunity that documentary and testimonial evidence KARE that inference supports thus rat- Ryther the gave Mason, in March agenda terminate age-based had an “work “commendable,” stating his that ing of that to believe right had jury Ryther. job accurately; total quickly is done biased, and in inadequate, survey was met,” shortly thereaf- but responsibilities age- ll’s KARE subterfuge to mask fact dismissal, ex- his him notifying ter, when Ryther. animus based showing on the as based decision plained a “fail- Ryther was that . research of earlier Ryther Before Mason’s Treatment C. in the market. ure” Survey Gallup Ryth- reasonably infer might juryA Supreme Douglas, In McDonnell showing” that “unimproved er’s may be that that “evidence observed Court justified the performance long-term his felt includes showing of relevant aBut reason- contract. his non-renewal treatment [employer’s] to the as facts that infer might also employ able term during prior [plaintiff] rat- commendable approval and As at 1825. continuous ment.” claim. that belie understood, performance that ings evidence Court unanimous that, after evidence plaintiff, substantial exists treated There defendant that supervisor Ryther’s through stable became Mason remained Janet performance whose Survey), KARE upon Gallup differently (and period, before the relevant out contract should may, together Ryther’s that supervisors determined change in Moreover, said it cannot prima facie case be renewed. elements him, get” rejected out “was supervisor new no reasonable that moti she explanation that inference a reasonable contrived Mason’s Id.; see 1990 out treatment. favorably in March that difference vated rated at 2749. S.Ct. cause unfavorably would U.S. at rating him also fear a state- emotionally. Such apart to fall him found sufficient The district reasonable appear untruthful ment Mason’s Janet conclude that jury to also jury could A reasonable sensibilities. contract Ryther’s to renew decision Ryther of notify failed Mason infer Survey was Gallup before made might he fear that alleged deficiencies effect to this The evidence commissioned. treated them,10 Mason or that (1) correct be- testimony that: included Bancshares, Boatmen’s Nelson paralleled the Ryther’s claim regard, In this Cir.1994): produced in pretextualily proof of incompetent” “an because she an harbored testimony son’s that she once considered al- age-based against animus him. See lowing Ryther to glasses wear because she 511,113 sum, U.S. at S.Ct. at 2748. In they felt might help them; cover testimony reasonable could infer that Mason had that several employees older suddenly were made a decision to Ryther terminate given poor before performance ratings and forced Gallup survey was conducted. choose early between retirement and demo- tions; testimony that others in the sports Ryther D. Claims that RARE 11 Main- department made cutting remarks about tained a Pervasive Environment Unfa- Ryther’s age, calling him fart,” an “old an Employees vorable to Older man,” “old saying he was “too old to be air,” on the and “had no business being in the The district court relied on several industry any more age”; for his portions testimony holding record in Ryth that Shaver and Mason frequent had er’s evidence discus- corporate atmosphere unfa Ryther; sions about testimony employees vorable toward older could rea complained Shaver Ryther about sonably support Mason jury’s inference that on ostensibly age-related grounds. In the subject was the of age discrimination. connection, latter the following excerpt RARE 11 contends this evidence is insuffi the testimony of cient, Villaume, Edward noting former that statements made by em sports department intern, is ployees illuminating: not involved in non-renewal stray Q: remarks in workplace you do Did ever Randy hear Shaver give rise to a reasonable inference discrim make comments about age? Tom’s only ination. Not is RARE ll’s reduction of Yes, A: I did. this evidence to a few “stray remarks” factu Q: And what you comments did hear ally incorrect, but, importantly, more such Randy make about age? Tom’s can, if together sufficient with other Randy A: Shaver called Tom pretext, a reasonable man, old fart, an old and said he was inference of discrimination. As the Su too old to be on the air. preme Court stated McDonnell Douglas: Q: you Did hear Jeff Passolt make Other evidence that may be relevant comments about age? Tom’s any showing includes facts as to Yes, A: I did. [employer’s] ... general policy and Q: And what you did comments hear Jeff practice respect persons’] [older Passolt make about age? Tom’s employment. On point, the latter statistics A: That as to Tom was an employment [defendant’s] old man. policy and He called him too practice may air, old to helpful on the couldn’t determination figure why Randy out himself, [its] refusal [plaintiff] rehire Jeff, were general one, conformed to pattern number and that discrimi Tom against had no nation employees]. being [older business in the industry any more age, for his called 804-05, (foot- at U.S. 93 S.Ct. at 1825-26 him an old fart as well. omitted). note and citations Q: you Did hear Randy Shaver make his Although Ryther did not present his case comments on more than one occasion? in the form of evidence, statistical he Yes, A: I did. testimony offer suggesting RARE ac- Q: Approximately tions general many “conformed to a how pattern times did you Randy discrimination” hear employees. older Shaver make those Id. 93 S.Ct. at comments? 1825-26. This evidence Ryther’s testimony included: that he was A: I say would approximately ten bags criticized for the eyes; under his Ma- more. April Because [defendant's] permit [plaintiff] memo to correct his perfor- work he already shows had [plaintiffl mance, decided that reasonably infer that should be given early terminated and retire- hiding [defendant] was a motivation to fire ment and because [defendant] did not fact age. Nelson sports there in position anchor those make Passolt Jeff you hear Q: Did department. one occasion? more than on comments argues state that KARE Yes, I did. A: testimony were not in referenced ments many times how approximately Q: And for decision persons responsible those com- those make Passolt Jeff To the ex Ryther’s contract. to renew ments? made out were that these statements tent often Not as around ten. A: Somewhere decisionmakers, the presence side Randy. not, they stand that do correct Levine, or hear Dave you Q: ever Did alone, of discrimina raise an inference ing Tom about Levine, comments make Bank v. Boatmen’s Compare Frieze tion. Ryther’s age? 1991) Cir. Belton, F.2d 541-42 A: Q: right with Yes, make Tom’s complain Had ence? ^[*] I did. in you age. a comment ^[*] ever Janet Randy Dave would ^[*] heard Mason on ^[*] his own Randy Shaver Jeff, in often ^[*] your pres- or would chime about ^[*] JNOV) ing denial of (reversing The er’s Shaver about developments at ability evidence also Ryther, and that denial Mason Morgan v. Arkansas defendant’s motion 950-51 “grasp” the station. of defendant’s had reveals, some of they frequent Cir.1990) (affirm discussed however, Furthermore, motion discussions “newer” Gazette, JNOV). Ryth that gener was that Mason shows evidence other A: Yes. and de ideas responsive ally Shaver’s what said was us about you Q: tell Can Ryther be mands, request that including his pres- you were when that occasion on jury could Prep Sports Extra. The off taken Janet complained to Randy when ent her formed reasonably that Mason infer thus Mason? of the basis on the about was that Tom to Janet Randy had said A: by frequently made discriminatory comments more, he was that around never Levine, Singer, and act Passolt, Shaver, just wasn’t he and that phone, on terminating him. on them ed sys- computer new grasp the able testimony of three dismisses KARE 11 the, handle kind and couldn’t tem the station employees that former technology. newer em- of older ridding itself systematically was any other staff hear you Q: Did ever dis- employees were those ployees because about comments make members ‘“individual and because similarly situated age? Tom’s taken their of actions opinions employees’ A: Yes. themselves, insufficient ... employer, was that? Q: who And that argument [Ryther’s] ” discharge.’ man, determining factor a camera who was Singer, A: Brian Morgan, 897 once, (quoting at 35 Br. Appellants’ than more mentioned had ours)).11 (alteration As to KARE F.2d at 950 the fact mentioned also had Judge think Morgan, we reliance Tom was how understand could not he this court opinion Randy R. why John Gibson’s business still conclusion: supports our Morgan one number not the Jeff were older Although the situations Ryther. properly observed: more district court 11. respects, some Ryther differ in employees and defendants Finally, there enough similarities were there finds the court be- employees to choose other older forced admissible. relevant the evidence Several to render early retirement. demotions tween suddenly given that a also concludes employees were The court older intentionally receiving years defendants reasonably after find that performance reviews poor contend em- ratings. older superior Defendants performance cases poor built employees was concerning the older including Ryther. ployees, tal- they were not on-air not relevant F.Supp. Ryther, 864 therefore, similarly and, situated were ent testimony Much the recited can above We hold the record as a supports whole be as no described more than individual reasonable age inference that employees’ opinions of actions taken motivated KARE ll’s decision not to renew which, themselves, their employer, are Ryther’s contract. The produced . support Morgan’s insufficient to argument overwhelming evidence as to the elements of age that his a determining factor in prima case, facie and strong evidence of discharge. was, however, There evi pretext, which, when considered with indica that, during dence administration, Tinker’s age-based tions of Ryther’s animus in work pattern employees over age the environment, clearly provide sufficient evi forty leaving department the circulation dence aas matter of law to allow the trier of being replaced by younger employees fact to find intentional discrimination. As . developed As we observed in MacDissi v. experienced the judge stated, district “[i]t is Industries, Valmont 856 F.2d 1054 jury clear that the believed evi (8th Cir.1988), context, in a similar “[t]his dence and did not prof believe defendants’ certainly fact is not conclusive evidence of explanation.” fered Ryther, F.Supp. 864 age itself, discrimination in but it is surely the kind which could cause a rear of fact sonable trier raise eyebrow, to an of fact urges dissent that the district court proceed employer’s the assess ex granted should have post-verdict KARE ll’s planation this outcome.” Id. at 1058. motion for as a matter of law (foot- (emphasis added) F.2d at 950-51 the evidence was insufficient to sus- omitted). note The Morgan court went on to tain jury’s findings. opinion This dis- conclude that “additional threads cusses detail; obviously gleaned which can record,” from the in- disagree with position of the dissent in cluding a reference to a former employee as regard. that ‘fuddyduddy’ “old [who was] smart enough help” department, and one We are reminded of universally employee’s away “observation a trend adopted standard judges that must be ex older, from experienced employees more to- tremely guarded in granting judgments as a ones,” younger ward “supported] a finding matter of law jury after a verdict. As this determining was a factor in the court has repeated, often the standard to be decision plaintiff. fire” the Id. at 951. applied is as follows: Thus, sports while statements of depart- not, employees ment themselves,” are “in (1) [T]he district court must consider the uphold sufficient to court, the district those evidence in light most favorable to the statements were and, relevant jury (2) prevailing party, assume that all con- together with other pretext, evidence of such flicts in the evidence were resolved favor as a toward younger “trend” employees, and of the prevailing party, (3) assume as the elements ease, proved all facts that prevailing party’s a reasonable inference of discrimination. (4) evidence tended prove, give Finally, in Emmel v. Bottling Coca-Cola prevailing party the benefit of all favorable Co., (7th Cir.1996), F.3d the Seventh inferences that reasonably be drawn Circuit, confronted with evidence of nondeci- proved. from the facts done, That discriminatory comments, sionmakers’ noted court must deny then the motion if reason- jury readily “[t]he could conclude persons able could differ as to the conclu- the statements pervasive demonstrated a at sions to be drawn from the evidence. titude” of Thus, discrimination. Id. at 632. Haynes v. Co., Trucking determined that Bee-Line “[t]he remarks are F.3d evidence, 1235, 1238 Cir.1996) together (quoting evi other TEC Floor dence in Corp. this case v. jury Stores, could lead a Wal-Mart con clude, Cir.1993) preponderance (in evidence, quoting Am., turn Western company engaged Inc. v. unlawful dis Aetna Casualty Co., Surety & crimination.” Id. 1181, 1183(8th Cir.1990))). F.2d jury, important. is not There long “[i]n held that but that court has This issue, conflicting it conflicting evidence on this inferences rea where evidence, gone way. Making either deci- it is the sonably drawn can be juries exactly what what infer sions of kind to determine function Forbes, Anglen for.” F.3d at 501. shall drawn.” ence Braniff (8th Cir.1956) Airways, Kurn, 645, 652- (citing v. 327 U.S. Lavender IV (1946)); 740, 743-44, 53, 90 916 L.Ed. 66 S.Ct. urges The dissent various reasons Herring, v. Molasses Co. see also National jury that the instructions were erroneous (8th Cir.1955) (“What 256, fre F.2d 259 221 granted. a trial to new should be order in cases such quently to be overlooked seems objection preserve appeal, an “[t]he inferences this is that where inconsistent as specifically grounds objection the must be undisputed from reasonably be drawn stated, appeal on must error claimed facts, jury, it and not evidentiary is for grounds on in the be based the same stated court, shall to determine which inference Rent-A-Center, objection.” v. 58 Starks drawn.”). clearly presented This case (8th 358, Cir.1995); Fed. F.3d 361 see jury that inferences to the inconsistent thorough R.Civ.P. 51. After a review of by the 11 like to be resolved RARE would transcript, instruction conference we deter example, RARE its 11 asserts court. For only objections mine that two raised prima destroyed element of proof to RARE ll’s to this court can said briefs relating Ryther’s qualifications case facie to grounds” objec be made “on the same as its job. This overlooks own First, RARE 11 tions in the district court. enthusiastically supported his proof, which jury argues suggested 20 to Instruction ability challenged proof RARE ll’s as Ryther prevail simply by estab credibility of this evidence pretextual. The n Br. at lishing prima Appellant’s facie case. exclusively for the was a matter that, Ryther 45. The instruction stated 11, Ryther v. resolve. See proved “he has offered Cir.1996). (8th you could conclude day, perhaps most in At the end of the be discriminated him defendants Supreme States structive is United 11, age.” Ryther cause of Kurn, in Lavender v. 327 Court’s directive Jury, Court’s Instructions Instruction 645, 653, 740, 744, L.Ed. 916 90 U.S. 11, 84 reprinted No. v. KARE (1946): (8th Cir.1996). Second, 1074, 1087 14 F.3d n. complete Only absence when there is argues not that Instruction 20 did RARE probative the conclusion facts on a distinction between the burden make appear. reached does a reversible error (of and the burden production) defendants where, here, evidentiary there is But (of persuasion). Br. at plaintiffs Appellant’s verdict, jury’s jury is for the free basis words, asserts, the 46. In other RARE facts are to discard or disbelieve whatever teaching comport instruction not And the with its conclusion. inconsistent it did make clear because appellate court’s function is exhausted establishing carried the burden evidentiary ap- basis when that becomes by a prepon- both being parent, it immaterial that court Appellant’s Pet. for derance of the evidence. contrary might inference feel draw Reh’g en banc at Reh’g Suggestion reasonable, that another conclusion more added). (emphasis of these ob This court reviews both jections abuse of discretion stan espouse essence under an This continues dard, particular funda paying heed to the upholding the district of Lavender. followed, long particular rules this court has issue mental court’s decision submit Mut. Hastings v. Boston best summarized jury, Judge Richard S. Arnold Chief Co., Cir. F.2d instructed, our Ins. do know what an- ‘We Life 1992): sitting if we had been swer would have been A district court broad has discretion Fourth: A younger person with similar jury. instructing the In conducting our replaced credentials plaintiff. review this Court reverses a If plaintiff has prove failed to one or more that, only if we find when viewed in their facts, you of these must find for the defen- entirety, the instructions contained an dants. error or errors that affected the substan If proven plaintiff facts, has these he has rights parties. tial United States offered evidence you from which could con- Forest, City Arkansas, E.P.A v. Green clude defendants discriminated Cir.1990), cert. against him age. nom., Foods, denied sub Tyson v.Work If you find that proven these S.Ct. facts, you must consider whether defen- (1991). Accordingly, L.Ed.2d 435 we will produced dants have aof reason not find error in simply instructions be age other than plaintiff’s renewing they technically cause imperfect or are contract. clarity. not a model of See Federal Enter Defendants have legiti- offered evidence of prises, Greyhound v. Leasing Inc. & Fin. mate, non-discriminatory reasons for then- (8th Corp., Cir.1988). 849 F.2d 1061 actions, therefore, plaintiff by must prove a standard, Under this we re must preponderance of the evidence that ject both of KARE arguments against ll’s reasons by offered merely defendants are 20. Instruction Well settled is the rule that a cover-up or age intentional

jury instructions must be read as a whole. discrimination. Walker v. AT T Technologies, & You should not consider whether the rea- Cir.1993). Instruction 20 full given by sons good defendants constitute a reads as follows: or bad business decision. You law, Under federal it is unlawful for an return a plaintiff just verdict for because employer to discriminate an em- you may disagree with defendants’ decision ployee because of employee’s age, or believe it was harsh or unreasonable. employee’s when age- is 40 or over. A reading of this instruction in entirety its you In order for plaintiff, to find for plain- it makes clear that KARE argu ll’s first tiff prove by must preponderance ment must fail. objection KARE ll’s seeks age evidence was a determining to isolate the sentence on prima facie factor in the defendants’ decision not to case from preceding and following sen renew his contract. jurors tences. For to believe Plaintiff required is not produce direct prevailed by have establishing only of unlawful motive. Discrimina- case, they would have stop had to read tion, exists, if it admitted, is seldom but ing complained-of after the sentence. See a fact you may infer from the exis- Forbes Arkansas Educ. Television tence of other facts. Comm’n, Cir.1996) In deciding whether age Plaintiffs was a (“We great juries, faith in and their determining factor in decision, defendants’ ability desire and to follow instructions and you should first plaintiff consider whether make among distinctions the various issues following established the by facts them.”). put before preponderance of the evidence: KARE ll’s argument second must fail as First: Plaintiff was protected within the First, well. Instruction 20 Ryth- twice states is, group, that he years er’s prove burden to age discrimination. In over; addition, Instruction 4 further Ryth- clarified job Second: Plaintiffs performance was er’s burden: satisfactory; The burden is on the in a civil Third: Plaintiff was action, terminated this, from his such prove every essen- job when his renewed; contract was not tial element of by his claim preponder- ance If proof evidence. should requests. denied any of its jection as to element any essential fail to establish give Instruction Doty’s decision to Judge preponderance by a claim plaintiffs language offered other find over jury should to the discretion, abuse of 11 was not an claim. KARE as to that for the defendants trial. a new not warrant and does Instructions Court’s v. KARE we be- 4. While Jury, No. Instruction CONCLUSION a cor- standing alone is Instruction lieve law, it is buttressed statement rect record and the overall basis of On the addition, in Instruction this directive evi- briefs, substantial hold there exists we KARE out that Doty pointed Judge jury’s in the record dence failure did, argue, as it free to age discrimination. finding intentional any element as to proof carry its burden in the addition, prejudicial no error find we jury to return required the the case trial hold that the instructions Neither the defendant. verdict for new trial. denying the motion not err Judge the court convince arguments basis, find that On Instruc- giving his discretion Doty abused be affirmed. should tion 20. AFFIRMED. JUDGMENT to this instruc objection Any other waived has been tion HANSEN, FAGG, BEAM, Circuit conference it at the instruction to make failed dissenting in concurring part in and Judges, Tr. VII-167-79. appeal. See argue it on and part. re are waived have been Objections that FAGG, BEAM, con- and HANSEN Judges error, is plain court for by viewed this I, II, court’s III of the in Parts cur case exceptional confined “narrow of the in Part I.A. also concur opinion. We fair seriously affected error where makes clear Part we feel this dissent of the reputation ness, public integrity, or sufficien- the traditional keeping in with Bd. Des Moines proceedings.” judicial of analysis, employment an cy of the evidence Alvord, 706 v. Trustees Works Water present evi- must discrimination omitted). Cir.1983) (citations 820, 824 infer- a reasonable to create sufficient dence this made that argument can No serious judg- discriminatory avoid intent of ence here. is met standard of law. as a matter ment conference Finally, in the instruction of the court’s joining IV Part Instead of court, its briefs this and in II.B. of join in Parts II.A. opinion, we re certain denied court the district asserts We concur dissenting opinion. re of these Grant quested instructions. Instruction neither view dissent’s prov invade by court would quests this in found the instruction this case nor “The trial district court. ince of the Wolff, Devitt, & Blackmar 106.04 Section framing the in great deal of discretion has a Instructions, Jury Practice Federal give court need and the jury instructions courts. district by the used should parties.” language desired the exact join in Part also and Beam Fagg Judges 1274, 1277 Vinjamuri, Campbell v. and thus dis- dissenting opinion, of the II.C. Cir.1994). addition, Fed.R.Civ.P. opinion. court’s of the IV sent from Part denied, a request is once requires that are read instructions Believing that when appeal preserve error on party in order inconsistency in In- the internal a whole as object as to the omission specifically must in this require reversal 20 does not struction (“No party Fed.R.Civ.P. any request. See in the result case, Judge Hansen concurs failure giving assign as error the opinion. court’s in Part IV reached party ob unless give an instruction to con jury retires before the jects thereto LOKEN, dissenting. Judge, Circuit distinctly matter verdict, stating sider its appeal raises This dissent. respectfully I objec objected grounds Mary’s applying St. issues in important any two ob- tion.”). preserve 11 did not Honor Center 509 U.S. 118 vel non is like question other ultimate (1993): first, S.Ct. L.Ed.2d fact: either the sup- evidence is sufficient to proper what granting standard for port finding fact proven, has been (JAML) as a matter law under or it is not.” Hicks; second, instructions Supreme opinion Court concluded its frequently given cases, in including ADEA stating Hicks that we should not “treat one, inappropriate this after Hicks. differently from other ultimate Though agree I with the court’s JAML stan- questions of fact.” 509 U.S. at S.Ct. dard, I conclude that KARE 11 is entitled to at quoting U.S. Postal Serv. Bd. of JAML on the facts and I further Aikens, 711, 716, Governors v. 460 U.S. conclude that the district court’s instruc- 1478, 1482, (1983). S.Ct. 75 L.Ed.2d 403 tions were reversible error under Hicks. That support is direct for the rule Roth- Accordingly, I majority would reverse. A meier, because a finding factfinder’s of inten judges join I.A, the active circuit in Part subject tional discrimination is to meaningful partial separate concurrence, which is a judicial review. See Anderson v. Bessemer opinion. Parts II.A and II.B. of this City, 1504, 1511, (1985); 84 L.Ed.2d 50(a)(1), Fed.R.Civ.P.

I. JAML Issues. 52(a). Though implausible interpretation Proper A. The Standard. passage quoted page 7 of the opinion court’s view, contrary among Hicks resolved a conflict the cir- the Court in explicitly Hicks warned us not by holding cuits that a finding “to dissect the sentences of the United States compel does not finding employer that the Reports though they were the United guilty of intentional discrimination.12 States Code.” 509 at U.S. 113 S.Ct. at Focusing passage on the quoted Hicks page again 7 and in footnote 5 of the court’s opinion, concluded, some circuits have erro- The final paragraph of Part II of the view, neously my in that submissible evi- opinion court’s confirms that Rothmeier is pretext dence of always will defeat em- the law of this In Part circuit. III of its ployer’s motion for summary judgment or opinion, the court properly then reviews JAML. See Sheridan v. E.I. DuPont de Ryther’s pretext and great other evidence in Co., 1061, (3d Nemours & 100 F.3d 1066-72 detail concluding, before “there exists sub- Cir.1996) (en banc). disagree. Other circuits stantial evidence in the record to Tools, See Rhodes v. Oil Guiberson 75 F.3d jury’s finding of intentional discrimina- (5th 989, Cir.1996) (en bane). 993 Panel Supra, tion.” at Though I disagree opinions of this court consistently held with the result the court reaches this the district court grant summary I legal concur in the adopted standard it has judgment or JAML employer for the even if applied.13' plaintiff has pretext some evidence of if that evidence, for another, one reason or falls Applying B. the Standard in This Case. proving short of intentional discrimination. Advisers, Rothmeier v. Inc., Investment My 85 prior panel dissent discussed length at 1328, (8th F.3d Cir.1996), 1335 succinctly why I would hold that the district court erred stated this rule: “Intentional denying discrimination KARE ll’s motion for JAML. 12. In O'Connor v. discrimination, Consolidated Coin Caterers both that evidence Corp., - U.S. -,-, 1307, 1310, 116 S.Ct. prove must be employer sufficient to that the is (1996), 134 L.Ed.2d 433 the Court that it noted guilly Therefore, of intentional discrimination. has never held that the Douglas para McDonnell judge may trial decide summary on a motion for digm applies to ADEA cases. But the Court judgment or JAML that the evidence is insuffi- cases, analysis continues to use that cient reasonable trier of fact to infer unlaw- so do we. See College, Roxas v. Presentation discrimination, plaintiff ful presented even has 310, (8th Cir.1996). F.3d pretext. some evidence of rulings We review on summarize, standard, 13. To under such summary motions under our while traditional plaintiff may rely on prove the same evidence to and JAMLstandards. issue, issue. instruction 1090- troublesome v. KARE See stated, jury involve the broadly is whether to Cir.1996). briefly, ten To summarize Douglas paradigm that sug research the McDonnell market professional years of evidence in judges’ review of the sportscaster dominates Ryther as lead gested eases. Hicks In 1988 and employment viewers. Cities Twin not attract manag in most cases clearly in two new that the answer brought signals station Brooks, employer has articulated a Linda Rios ers, is no. If Mason and Janet nondiseriminatory for its market research reason legitimate a different who retained survey challenged Cities adverse action: Twin viewers. organization again Ryther had Gallup reported that When (whatever ‘production’ its [t]he defendant’s Brooks, Mason, third and the poorly, fared effect) made, been persuasive having ra decisionmaker, Modig, made the Richard decide the ulti- proceeds of fact trier to rehire when tional decision prov- question: mate ex three-year employment contract fourth intentionally dis- en the defendant ‘that pired. because of [him]’ criminated [age]. trial, testified all three decisionmakers At mar upon the based their decision was (quoting 113 S.Ct. at “suspicion men There is no research. ket Burdine, at 1093- U.S. at here, this testi a hint that not even dacity” 94). words, jury need not make In other Instead, district mony untruthful. prima facie plaintiff’s findings regarding mightily to demon this court labor explanation employer’s is or whether case is not credible because that the reason strate deciding Though judges when pretextual. Gallup before Ryther was out of favor motions must summary judgment and JAML (a herring), be began red survey true Doug- through the McDonnell filter evidence was flawed. But market research cause only decide paradigm, the need las proba is not an unsound decision age discrimina- issue of intentional ultimate To age discrimination. of intentional tive tion.14 discrimination, pretext evi prove intentional have held that other circuits Since veracity of question the “must call into dence limited to the normally be instructions should justification.” Isen defendant’s ultimate See Wood discrimination issue. ultimate Sales, Newspaper Knight-Ridder bergh Hosp., 92 F.3d Magnolia house v. (11th Cir.1996). See Cir.1996) (“it instruct the improper Corp., v. Haemonetics Woodman also prima facie the elements (1st Cir.1995); 1087, Anderson 1092-94 F.3d 340, Corp., 43 F.3d case”); Gehring v. Case Corp., 13 F.3d v. Baxter Healthcare (“the Cir.1994) (7th only question the Cir.1994) “produce must (plaintiff plaintiff is whether jury answer —is need a rational factfinder from which evidence discrimination”), cert. of intentional a victim lied”). Here, company infer that the - -, denied, 115 S.Ct. U.S. facie case and uncon prima Ryther’s weak (1995). Anheu Kehoe v. But in L.Ed.2d 855 are insufficient pretext vincing evidence ser-Busch, Cir. to conclude any reasonable factfinder 1996), that “the district panel concluded our in determining factor age was a to in constrained circuit are in this courts his contract. renew ll’s refusal RARE prima of the juries on the elements struct facie strong prima case facie case” Error.

II. Instructional may be sufficient to pretext plus evidence A. disagree I discrimination. infer intentional must The instructions conclusion. issue were not at Though jury instructions ultimate issue of jury to resolve the tell the Hicks, guidance on provides the decision in plaintiff those elements if a verdict for employ- to render Conversely, case when in the rare 3,& n. 113 S.Ct. proved. at 509-10 legitimate nondiscrimi- has not articulated er reason, any disputed natory jury must decide 2748 & n. 3. prima case and is instructed facie elements that, Beyond intentional discrimination. al- job performance Second: Plaintiffs though satisfactory; the district has broad discretion instructions, formulating in it is not “con- Third: Plaintiff was terminated from his how strained to” instruct discrimination can job renewed; his contract when was not proved attorneys is the task of —that closing argument.15 younger Fourth: A person with similar replaced plaintiff. credentials

B. plaintiff If has prove failed to one or Hicks, frequently Since one used instruc- facts, you more of these must find for the proposed tion treatise has an instruction that plaintiff defendants. proven has these If flatly contrary proposal to Hicks. is facts, he has Wolff, offered Devitt, & Jury Blackmar Federal you could conclude that dis- (1996 defendants § Practice & Instructions 106.04 age. criminated him because supp.), jury first instructs the to consider the plaintiff’s prima elements of facie case and added.) (Emphasis words, In other the court that, plaintiff proved states if prima has jury instructed that the could find for case, “you may, not, you facie but need ren- proved if he prima elements of a facie Hicks, plaintiff. der a verdict” for Under case. wrong That is under and the instruction, portion standing clearly prejudicial error is because “the bur alone, goes is clear error. Section 106.04 establishing den of prima facie case of that, produced instruct defendant has disparate treatment is not onerous.” Bur of a age, “you reason other than dine, 450 U.S. at 101 S.Ct. at 1094. you must find for the defendant unless find preserved RARE 11 by objecting the issue proved ... that the reason aspect proposing Instruction 20 and n given by the defendant was not the true alternative instructions. instruction, action.” reason That which divorces from the ultimate is- C. discrimination, sue of intentional squarely contrary holding my to the in Hicks. We review instructions to determine view, § use of 106.04 future cases will be they whether as a adequately whole and suf reversible error. ficiently applicable state the law. In an main, ease, ADEA whether, issue is case, In this the- district court based its “[rjeading whole, the instructions as a it is Devitt, misguided Instruction 20 on the jury’s evident that the consideration was di Blackmar & Wolff format. In first instruct^ rected to whether the determining ing Ryther proved to find whether factor in employer’s [the adverse action].” the elements of a the court Slathar v. Trucking Corp., Sather comparable language modified the - (8th Cir.), denied, cert. U.S. 106.04, § anything but if magnified it -, (1996). 136 L.Ed.2d 118 clear error: In deciding plaintiffs age was a Here, Instruction 20 contains a clear error decision, determining factor in defendants’ of law in lengthy, the middle of complex

you should first plaintiff consider whether (The instruction. entire Instruction 20 is following has established the facts quoted pages at 32-33 of the opinion.) court’s preponderance of the evidence: No issue, other instruction dealt with this so protected First: Plaintiff was within “cure” must be found in the remainder of is, age group, that years he was 40 age Instruction 20. Following the above-high- over; or error, lighted was told: previously 15. We have observed that legalisms instructions ques- understood to decide the ultimate incorporating Douglas paradigm McDonnell tion of discrimination." Grebin v. Sioux Falls juror’s understanding “add little to the 49-5, Indep. Sch. Dist. No. and, worse, may jurors case even lead to aban- Cir.1985) omitted). (quotation upon don their poorly own and to seize proven these plaintiff find that you If America, defen- UNITED STATES facts, must consider you Plaintiff/Appellee, of a reason produced dants renewing plaintiffs age for not than other contract. minor, Defendant/Appellant. J.,A.D a legiti- have offered Defendants 96-2485WA. No. their nondiscriminatory reasons for mate, prove actions, therefore, must Appeals, Court of United States the evidence preponderance Eighth Circuit. merely by defendants offered reasons cover-up for intentional pretext Feb. Submitted discrimination. 10, 1997. March Decided alone, instruction portion of the Standing explained, I have (though as permissible is,

ill-advised). it cure question The Duluth, & Smalley v. W.

prior error. (8th Cir.1991), 296, 298 Ry., 940 F.2d

Pac. 940, 117 denied, S.Ct.

cert. issue (1992), exact we faced this

L.Ed.2d prop reversed, upon general “the based conflicting state or more two

osition cannot be suggested, it of law are

ments proper jury followed

presumed that the view, correctly Smalley was my

rule.” controlling here. and is

decided it erroneously instructed jury was

The the ele- proved if he find was later facie case. It prima aof

ments prove Ryther must

instructed The earlier intentional discrimination. corrected, explicitly was not

error conflicting in-

relationship the two between explained. As was not

structions the first instruc- easy prove, case is verdict to render a invited

tion treated KARE 11 had it

Ryther if concluded limited instruction unfairly. second

him ADEA. proper role under jury to its scope of is critical the issue

Because statute, the evidence

the federal this case

intentional best, cannot and because weak jury obeyed, which instruction

know to a new trial. 11 is entitled

Case Details

Case Name: C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 6, 1997

Citation: 108 F.3d 832

Docket Number: 94-3622

Court Abbreviation: 8th Cir.