Calvin Rhodes v. Guiberson Oil Tools

VI. reasons, foregoing deny we

Based on the Virginia Concrete we petition of

grant cross-petition of the Board and order. its

enforcement DENIED, CROSS-PETI-

PETITION GRANTED, AND EN- ORDER

TION

FORCED. RHODES, Plaintiff-Appellee,

Calvin TOOLS, OIL

GUIBERSON

Defendant-Appellant.

No. 92-3770. Appeals, States Court of

United

Fifth Circuit.

Jan. McDowell,

Douglas S. McGuiness & Williams, DC, Washington, Equal Em- Council, ployment Advisory amicus curiae. Jeffrey Londa, Grundy, C. Hutcheson & TX, Houston, for Texas Association of Busi- Commerce, ness & amicus curi- Chambers ae. Rosdeitcher, Paul,

Sidney Weiss, Samuel Rifkind, Garrison, Wharton & New York City, Seymour, Richard T. Teresa Anne Fer- rante, Lawyers’ Rights for Civil Committee Law, DC, Lawyers Washington, Under for Law, Rights Committee for Under ami- Civil cus curiae. EEOC, Kay Bernstein, Washington,

Dori DC, Equal Employment Opportunity Commission, amicus curiae. Johnson, Employment B.

Janette National TX, Association, Dallas, Lawyers for Nation- Association, Employment Lawyers al amicus curiae. KING, POLITZ, Judge,

Before Chief HIGGINBOTHAM, GARWOOD,JOLLY, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, BENAVIDES, DeMOSS, STEWART, DENNIS, PARKER and Judges. Circuit DUHÉ, Circuit W. EUGENE DAVIS Judges: ADEA for

In this action under the dis- criminatory discharge, we consider en banc appeal from district judgment court’s denial of its motion (JNOV). notwithstanding verdict We the evi- agree with district court Waitz, Jr., Downer, support dence is sufficient to the verdict and Joseph Waitz & L. Houma, affirm.1 LA, plaintiff-appellee. Lutkewitte, Joseph Joseph Paul Thomas I.

Demarest, Favret, Demarest, Lut- Russo & LA, kewitte, Orleans, began Springer, Felix J. Calvin Rhodes New Howard, Hartford, CT, in 1955 as a salesman of Day, Berry for Dresser Industries & oil-industry. In products and services to the defendant-appellant. "judgment as a both a direct- matter of law” for 1. This was tried before the effective date of to the Federal Rules of 1991 amendments ed verdict a JNOV. now term Civil Rule 50 uses the Procedure. industry was in the throes of a II. the oil In downturn. March of that severe economic Oil contends Guiberson that the evidence is being job year, in laid off from his lieu jury’s finding insufficient Dresser, Division of the Atlas Wireline argues discrimination and that the dis- job selling oil field was offered Rhodes granting trict court erred its motions Compac, another Dresser equipment at com- pany subsequently judgment became Guiberson for a directed verdict or which notwith- later, months on October standing Oil. Seven the verdict. discharged At Oil Rhodes. Guiberson termination, fifty- the time of his Rhodes was Age Employ Discrimination in report, years old. In the severance Gui- six (ADEA) ment Act makes it “unlawful for an discharged it had berson Oil stated discharge any ... to ... individual of a reduction in work Rhodes because force age.” because of such individual’s 29 U.S.C. rehiring it would consider him. and that 623(a)(1) (1988). § prima To establish a fa months, however, Guiberson Oil Within two discrimination, cie ease of plaintiff forty-two-year-old hired a salesman to do the (1) “must demonstrate that: he was dis job. same (2) charged; qualified posi he was for the violating Oil for Rhodes sued Guiberson (3) tion; protected he was within the class at Act, Employment Age Discrimination (4) discharge; the time of the he was (1988) (“ADEA”). §§ 29 U.S.C. 621-634 A i) replaced either someone outside the

jury found that Guiberson Oil terminated ii) class, protected replaced by someone employment Rhodes from his because of his iii) younger, discharged otherwise because age, but also found that Guiberson Oil had Indus., age.” of his Bodenheimer v. PPG willfully violated the ADEA.2 On re- (5th Inc., 955, Cir.1993). 5 F.3d 957 mand, magistrate judge found that damages Rhodes had sustained Supreme Under Court’s $188,866.70 amount of as a result of Guiber- Douglas-Burdine framework, McDonnell son unlawful conduct. Oil’s plaintiff first must establish a prosecuted appeal Oil this Guiberson to evidence; preponderance ease of the judgment grounds challenge the on it established, once facie case raises supported by was not sufficient evidence and an inference of unlawful discrimination.3 See damages pan A were excessive. divided at-, 2747; Dep’t 113 S.Ct. at Texas agreed el of this court with Guiberson’s suffi Burdine, Community v. 450 U.S. ciency argument Affairs and reversed and rendered 248, 252-53, 1089, 1093, 101 S.Ct. 67 L.Ed.2d judgment for Guiberson. We took the case (1981); 207 Douglas Corp. McDonnell sufficiency question en banc to consider the Green, 792, 802, 1817, 1824, 411 U.S. 93 S.Ct. light Court’s recent deci (1973). Hicks, 36 L.Ed.2d 668 Mary’s pro sion in Honor The burden of St. Center v. 502, 113 2742, 125 509 duction U.S. S.Ct. then to prof shifts the defendant to legitimate, fer a nondiscriminatory reason for parties stipulated (1991) magistrate judge 2. The that a holding, [hereafter 158 /]. Rhodes In so liability. except panel decide all issues specifically question would Conse noted that the quently, jury supported after the found that Guiberson whether the evidence Oil the verdict was Rhodes, against magistrate had not before discriminated us. Id. at 887. judge prejudice dismissed Rhodes' case with be Rhodes, action, prior bringing cause this failed (race Douglas 3. McDonnell and Hicks discrimi- timely charge Equal Employ file a with the nation) discrimination) (gender and Burdine are Opportunity appeal ment Commission. Rhodes Although Title VII cases. the ADEA was enacted dismissal, contending ed the that his suit was not statute, by Congress separate as a we neverthe- panel agreed, time-barred. A of this court re apply Douglas-Burdine less the McDonnell magistrate judge's setting versed the decision framework within the ADEA context. See Boden- verdict, Indus., Inc., aside the 955, and remanded for a deter heimer v. PPG 957 n. 4 damages. (5th Cir.1993) (“The mination of See Rhodes v. Guiberson Fifth ... Circuit has Div., (5th Cir.), Oil adopted Tools 927 F.2d 876 Mary’s procedural roadmap cert. the St. denied, cases."). 502 U.S. 112 S.Ct. 116 L.Ed.2d ADEA

993 Hicks, always. challenged action. The lies in our employment traditional answer 2747; Burdine, at-, sufficieney-of-the-evidence analysis. at 509 U.S. 113 S.Ct. See 1093; Malamud, C. at Deborah The Last at McDon- Minuet: 450 U.S. Hicks, Disparate Douglas, at Treatment nell 411 U.S. S.Ct. Mich. After this L.Rev. (noting meet burden 1824. defendant “the that, stressed by Court in Hicks that once a by presenting evidence believed McDon “if fact, Douglas-Bwrdine nell finding pre case reaches the the trier would stage, it was not the cause of text is to be treated like unlawful discrimination other case.”). Hicks, at- civil action.” We test verdicts and-mo -, summary judgment If the tions for for sufficiency at 2747. defendant S.Ct. burden, presumption its raised evidence under the meets Co. v. Cir.1969) (en Shipman, 411 plaintiffs prima disappears. facie case F.2d 365 banc), Burdine, 10, 101 Boeing, 255 & n. standard.4 Under “[t]here U.S. at However, must be a & n. ac conflict in substantial evidence to question.” create Id. at 375. opportunity corded demonstrate Sub articulated stantial is defined as the defendant’s rationale was “evidence of quality merely pretext weight such for discrimination. See reasonable and at---, impartial fair-minded S.Ct. at men the exercise Burdine, 253, 101 2747-48; judgment might at different 450 U.S. S.Ct. reach conclusions.” 1093; 411 Douglas, Consequently, at Id. at 374. mere “[a] McDonnell U.S. scintilla 804-05, is present ques 93 of evidence insufficient to a S.Ct. at 1825. for jury.” tion Id. if the Even evidence According pre- evidence to such of scintilla, than “Boeing is more a assumes permit fact to text will a trier of infer that may support that some evidence exist to a the discrimination was intentional: position yet by which is so overwhelmed con The factfinder’s disbelief reasons trary proof yield as to to a directed verdict.” put (particularly defendant forward Co., Inc., Neely v. Delta Brick and Tile 817 by suspicion accompanied if disbelief a of is (5th Cir.1987). 1224, 1226 F.2d mendacity) may, together with the ele- Boeing analysis applies Our to circumstan case, of ments facie suffice to tial as well as evidence. direct Because di Thus, show intentional discrimination. re- eases, rect evidence is rare in discrimination jection proffered of the defendant’s rea- plaintiff ordinarily a must use circumstantial sons, of fact permit will the trier to infer satisfy persuasion. to of evidence her burden the ultimate fact of intentional discrimina- Inc., U.S.A., 14 Davis v. See Chevron F.3d tion, Appeals was and the of correct (5th Cir.1994). 1082, Thus, 1085 this circuit that, rejection, it upon when noted such repeatedly plaintiff held a has need not proof “[n]o additional of discrimination is jury a provide direct evidence to sustain required----” See, finding e.g., of Burns v. discrimination. (footnote at-, at 2749 509 U.S. 113 S.Ct. Inc., 747, City Refining, Texas 751 court). omitted) (quoting citation lower Cir.1989). (5th Similarly, Hicks does not however, unclear, It is whether the Court as a cast aside circumstantial evidence means in intended in eases an all such which allowing a infer factfinder to discrimina permitted' inference of discrimination a tion. necessarily sup- verdict of discrimination is ported sufficient evidence. In an ADEA as law suit, question a court

We that the not must examine both circumstan believe does Rather, deciding yield categorical a tial and direct evidence suffi answer. we are ciency ordinarily support convinced that such verdicts would evidence, supported by employer age used be sufficient determination that but granting 56 renewal of a should make no 4. The standard a Rule motion for Rule 50 motion for summary Corp. judgment inquiry. See Celotex v. or a Rule 50 difference Catrett, motion 317, 322-23, 2548, judgment 477 as a law is the same. U.S. 106 matter of Conse- 2552, (1986). quently, presence 91 L.Ed.2d 265 verdict on the 994 necessary making employ- The evidence an in- factor

a determinative vary ference of discrimination will from case Postal See United States ment decision. Aikens, jury may A to case. be able to infer discrim- Board Governors Service inatory appropriate 1478, 3, intent case from 3, 1481 n. n. 103 S.Ct. U.S. employer’s substantial evidence that (1983). Age need not be the 75 L.Ed.2d proffered reasons are false. The evidence adverse deci- sole reason for the may, example, strongly indicate that the sion; however, disparate “a treatment claim justifica- has introduced fabricated employee’s pro- cannot succeed unless the employee’s discharge, tions for an and not ... actually played a role in [the tected trait suggest otherwise a credible nondiscrimina- decisionmaking process] and had employer’s tory explanation. influence on the outcome.” a determinative Biggins, Paper Co. v. Hazen contrast, By put if the evidence 1701, 1706, 123 L.Ed.2d 338 113 S.Ct. plaintiff forth to establish the (1993), employ- age If does not motivate the facie and to case rebut rea decision, may “discharge well be er’s then substantial, sons is not cannot reason yet not be evidence unfair or even unlawful ably discriminatory infer intent. See Mala age the ADEA.” Moore v. Eli bias under (“There mud, Mich.L.Rev. Co., Cir.), Lilly F.2d cert. & [prima cases which the — -, denied, pretext] proof goes plaintiff’s way, but judgment for the would still be cases,

legally questionable.”) In some instance, finding the fact that one of the nondiscrimi To sustain a of discrimina natory tion, proved reasons in the record has circumstantial evidence must be such as highly questionable may not be sufficient to a rational factfinder to make a rea to allow remaining cast doubt on the reasons. Like was a determina sonable inference wise, employer’s explanation an prof for its tive reason for the decision. pretextual fer of a preclude reason a may rely on all the evidence in The factfinder finding of discrimination. See Woods v. Fric this inference of discrimi the record to draw Materials, (1st 255, tion 30 F.3d 261 n. 3 nation. In tandem with a Cir.1994) (concluding jury that a could not allowing rejection of the em evidence age employer’s infer discrimination if the often, ployer’s proffered perhaps reasons will nondiscriminatory articulated reason was finding usually, permit a of discrimination employee necessary that lacked work Thus, jury evidence. a without additional skills, employer’s but that real reason presented plaintiff and a can issue will be embezzlement); was to conceal its own acts of summary judgment judgment a avoid Co., Long Lighting Binder v. Island 57 F.3d if matter of law the evidence taken as a (2nd 193, Cir.1995) (“Such 200 explanation an (1) whole creates a fact issue as to whether include, might example, protection of a each of the stated reasons was protection business secret or even actually what motivated the reputation employee engaged who had age creates a reasonable inference that was a conduct.”). in undesirable factor in the determinative actions of which plaintiff course, complains. employer, pretextual When has offered summary judgment if will be entitled to reject evidence that allows a factfinder to as a whole would not proffered evidence taken allow defendant’s reasons and infer dis- crimination, jury to infer that the actual reason for the other circuits have been unwill- discharge discriminatory. upset plaintiff.5 was verdict for the Merrill, See, 1270, (1994); Auth., e.g., Chicago 5. Barbour v. 48 F.3d 1276 310 v. McNabola Transit - (D.C.Cir.1995), 501, granted part, Cir.1993); cert. 10 F.3d 514-15 see also 805, -, (1996); Allen, Inc., 116, (2d 133 116 S.Ct. EEOC v. Ethan 44 F.3d 120 Co., 428, Cir.1994) Coplay (reversing summary judgment); Batey Seman v. Cement 26 F.3d (3d Cir.1994); Stone, (11th Cir.1994) Gaworski v. ITT Commercial v. Fin. F.3d (8th Cir.), (same); Garrett, Corp., Washington 17 F.3d cert. de nied, -, (9th Cir.1993) (same). -U.S. L.Ed.2d eases, Snyder, supervisor, factfinder could Lee Rhodes’ testified In each of these evidence that deposition from infer via that more than one salesman nondiseriminatory ex- employer’s proffered clearly territory. was needed for the Jack addition, In pretextual. sev- planations were Givens, Snyder’s supervisor, who had been directly support the view that the cases eral Snyder replace that testified he told inference permit an of dis- evidence must Rhodes. Givens that also testified the busi- verdict for the crimination to sustain salesman, required ness than one more Therefore, requirement plaintiff.6 our replace Rick Attaway, had been hired to an inference discrimi- the evidence create Sewell, Snyder’s Rhodes. James su- other comports nation with other circuit’s caselaw. pervisor, that Rhodes was told testified application position being was to an eliminated and that We now turn principles to the record evidence above this statement true. The was not enough ease whether evi this to determine supports a finding that Guiberson did not tell produced was to allow rational dence why discharg- Rhodes truth about it was reason for to find that the true Rhodes’ ing him.

discharge In was discrimination. .an swering view all question, this we the evi B. favorable light dence most to the at 374. Boeing, verdict. F.2d See Guiberson defense at trial was not Oil’s RIF’d, that Rhodes but that he was was

III. discharged poor perfor- because of his work A. too, presented mance. Here Rhodes evi- * to counter dence Guiberson’s assertion. Snyder terminated Rhodes on Lee Snyder told Mr. Rhodes October Rhodes customers’ testified Rhodes (RIF) part he was of a reduction force only was an excellent salesman who lost bids because of adverse economic conditions that high. price when was too John- Guiberson’s Snyder persisted in the oilfield. told ny Producing Company Ford of de- CNG Rhodes, that Guiberson would con however performance scribed Rhodes’ as follows: reemployment. per him Rhodes’ sider only my “I’ve known one other salesman file this same reason sonnel reflected expertise that I equals career think Calvin’s discharge. It was uncontradicted Leroy a salesman.” Lehmann of Odeco position only unfilled Rhodes’ remained for called on Oil and Gas testified that Rhodes weeks that knew the time and Guiberson times, company many his that Odeco had that of termination or soon after Rhodes bids, “pos- accepted some of his that Rhodes Baxter, replaced. would be Charles the Gui ability to the technical and ex- sessed skills testified that representative, berson he be plain selling,” what he and that he had was manager the New came the for Orleans sales complaints performance. no Rhodes’ about 1, 1986 and area November within a effective Oliver Texaco testified that Terrence few knew that he would need another weeks compa- had calls on his Rhodes made several 15, 1986, representative. By December sales ny, doing, that Rhodes knew what he was forty-two year replacement, Rhodes’ old Rick performed. job, his and had technical Attaway, already salary hired at had been $36,000. necessary product. to sell his Joshua skills See, Tomes, (1st e.g., adequate F.3d a rational factfinder infer Udo v. enable 1995) (“While may rely Cir. age-based on that the intentional was prove pretext same evidence to ination, both and discrim employ- a determinative in the adverse factor the evidence must sufficient for Woods, (“Because action.”); ment 30 F.3d that the reasonable factfinder to infer present has sufficient evidence to Woods failed to by discriminatory decision was motivated ani permit to infer that FMI's a reasonable factfinder mus.”); Corp., Woodman v. Haemonetics age pretext unlawful articulated was a for reason (1st Cir.1995) ("The plaintiff-employ discrimination, under the ADEA must his claim may upon rely ee same evidence to establish fail.”). discrimination, pretext provided both and it is Allen, Exploration Lloyd testified that the other salesman in the of LGS Patterson product New Orleans office with whom Rhodes was his to Patterson’s explained Rhodes compared, at satisfaction, problems first testified that his sales that Patterson had no higher much abilities, were than Rhodes’ but clarified skills or Rhodes’ technical with on cross-examination that Rhodes’ sales dur- job, doing his and that the other Rhodes was ing period question nearly matched his had not called on his salesmen Guiberson own. Allen also admitted that the records George Armistead of company. Union Oil supporting testimony may in- have been every called on him testified that Rhodes complete, may that Rhodes have made anoth- weeks, only that Rhodes “not did three to six him, er sale for which Allen had credited done, say go he should have but he’d what and that another salesman have been duty,” beyond that Rhodes would the call of responsible for one of the Allen credit- sales you “dealt up projects on follow ed to himself. Rhodes conceded that his very Kerry professional manner.” Allen Lloyd sales were lower than Allen’s but not- Placid testified that Rhodes answered his Oil selling companies ed that Allen was satisfaction, questions explained to his always did not take the lowest bid and that very profes- product, “handled himself longer Allen had been New Orleans than sionally.” Rhodes thus had which com- discovered testimony provid- officials’ also panies Guiberson did this. for Rhodes’ contention that ed Gui- produced Guiberson no definitive records justification “productivity”

berson’s of his reflecting Rhodes, Allen, the sales of Atta- pretext age for discrimina- termination was way, of its other salesmen. Nor did Snyder testified that the memo tion. Lee i expect- Guiberson reveal the sales volume it placed explaining file Rhodes’ Rhodes ed Rhodes and the other salesmen to meet. expertise opera- lacked technical downhole substantially true but noted tions was that it evidence, Based on this was enti- (cover _ss)” your ... was “CYA letter. given also tled to find that the reasons Snyder good that Rhodes testified was a discharge pretexts Rhodes’ were dis- strong customer salesman with contacts and crimination. The was entitled to find Snyder’s discharg- noted that Jack boss who Guiberson’s states reason for Givens— once, Snyder Additionally, to fire Rhodes —RIF—was false. instructed Rhodes — said discharge the reason for young Oil that he could hire two salesmen for Guiberson proffered in court to meet Rhodes’ what of the older salesmen some were cost- facie case was countered with evidence from ing. Snyder quickly away backed from this which the could have found that Rhodes statement and said that Givens had said he anwas excellent met salesman who Guiber- could two new hire salesman what some legitimate productivity son expectations. Oil’s costing of the others were him. said Givens Viewing light this evidence in the most favor- Snyder telling he was not aware of this. He Rhodes, able to a reasonable could have also that he had never admitted talked to found that Guiberson Oil discriminated perfor- of customers about Rhodes’ Rhodes’ against age. Rhodes on the basis of his mance a salesman. Sewell, Snyder’s supervisor, James other Conclusion very impressed that he had been testified plans with Rhodes’ sales and that technical considering After all of the evidence in the ability necessary product. was not to sell the record under the standard set forth in Boe- poor He also testified Rhodes had a Shipman, Co. v. we are convinced that base, customer but admitted he did not the district properly accepted jury’s court were, Rhodes’ know who customers had not liability verdict on and willfulness. Guiber- customers, any of talked to Rhodes’ and had son Oil’s motion properly for JNOV was de- no support testimony documentation to panel nied. The did not reach Guiberson’s poor performance. about damages Rhodes’ contention that the district at-, agree I at 2749. therefore we remand S.Ct. excessive and are court awarded with the Court that: disposition. panel for to the this issue AFFIRMED. The factfinder’s disbelief of the reasons put by (particularly forward the defendant GARZA, Judge, M. Circuit EMILIO by accompanied suspicion if disbelief is concurring: specially mendacity) may, together the ele- with holding that the agree I with the Court’s plaintiffs prima ments properly denied Guiberson Oil’s court district suffice to show intentional discrimination. separately, how- for JNOV. write motion Thus, rejection prof- of the defendant’s relationship ever, symbiotic emphasize permit the trier of fact fered reasons will Shipman, 411 F.2d Boeing v.Co. between to infer the ultimate fact of intentional (5th Cir.1969), Mary’s Honor Ctr. and St. discrimination. Hicks, 113 S.Ct. 509 U.S. Hicks, at-, at 2749. 509 U.S. Court, opinion I find this Unlike the quotes passage The Court language very clear. In all cases in which an prima facie establishing plaintiffs permitted, a inference of discrimination is ease, disbelief together with the factfinder’s necessarily sup- verdict of discrimination is reasons, proffered will the defendant’s by ported sufficient evidence. to infer intentional dis- permit the factfinder maj. (quoting op. at 992-93 crimination. See reading of that in A careful Hicks reveals 2749). Hicks, at-, 113 S.Ct. 509 U.S. context, Title Court has VII cases, some The Court then states sufficiency-of-the-evidenee answered evidence sufficient to by Boeing. Boeing states questions posed inference under Hicks will not be suffi- grant a motion for that courts should of discrimination support a verdict cient to “if judgment as a matter of law there (“[Ojrdi- maj. Boeing. op. at 993 See under motions, opposed evidence to the substantial supported narily would be such verdicts is, weight quality of such and evidence evidence, my always.”). In but not sufficient fair-minded men that reasonable and further critical distinction merits opinion, this judgment might reach impartial exercise for, although states the analysis, 411 F.2d at 374. conclusions.” different determining whether there is proper test per- the trier of fact is Hicks instructs that to a to submit sufficient evidence intentional discrimination mitted to infer trial,1 specifi- Hicks tells us in a federal court put forward upon its “disbelief of the reasons cally constitutes “sufficient ev- what evidence ..., together the ele- the defendant in the Title VII context. idence” prima facie case.” 509 U.S. ments of the Thus, -, at 2749. such cases is ultimate issue in Title VII The “substantial,” as that term is always be intentionally discrimi- will the defendant whether Boeing. defined against plaintiff. nated denied, the case be the motions should standard reads: The jury. judg- A mere scintilla submitted to directed verdict and for On motions for notwithstanding present question the Court the verdict ment evidence is insufficient just evidence —not consider all of the should jury. verdict for directed for the motions supports the non-mover’s that evidence which judgment decided n.o.v. should not be light with all reasonable case —but in the case, nor has the better of the which side party opposed most favorable to the inferences only they granted when there is a should and inferences to the motion. If the facts probative to complete of facts absence overwhelmingly strongly in favor point so and a jury verdict. There must be conflict a party that rea- that the Court believes of one jury question. to create a evidence substantial contrary not arrive at a sonable men could However, jury the of the it is the function verdict, proper. granting of the motion is On facts, the and the traditional finder of hand, evidence the other if there is substantial Court, weigh conflicting infer- evidence and motions, is, of opposed to the ences, credibility of wit- determine the and quality weight that reasonable and such and nesses. impartial the exercise of fair-minded men in conclusions, Boeing, at 374. judgment might reach different 998 framework,3 grant Douglas

Boeing states that courts should and is not reached a also judgment “[i]f as a matter of law motion for reviewing court until it after determines that point strongly so and and inferences the facts plaintiff prima established facie case party in favor of one that the overwhelmingly (first step) produced and the defendant that reasonable men could not believes (second nondiscriminatory step). reason 411 contrary verdict.” F.2d at at a arrive Dep’t Community Texas v. Bur of Affairs inquiry this also. Hicks Hicks answers 374. dine, 248, 252-54, 450 U.S. 101 S.Ct. permitted of fact is us that the trier tells (1981). 1093-95, 67 L.Ed.2d 207 Hicks ex upon discrimination its “dis- infer intentional plains may that a factfinder infer intentional put the reasons forward belief of (1) plaintiff’s prima discrimination from ..., together of with elements defendant case, its disbelief of the defen at-, 509 U.S. 113 facie case.” at-, proffered dant’s reasons. Thus, such al- at 2749. evidence will 113 S.Ct. at 2749. If the fails to jury ways to arrive at a verdict of allow pri- present sufficient evidence to establish a discrimination, regardless of facts intentional case, ma facie the case will be taken from the contrary.2 to the and inferences step Doug- at the first in the McDonnell addition, reading Boeing of In a careful Burdine, 253-54, las framework. 450 U.S. at in order to review Title VII reveals Therefore, 101 S.Ct. at 1094. at the third evidence, sufficiency of the courts cases for framework, step in Douglas the McDonnell aspect a fundamental must violate only remaining target sufficiency-of- Boeing standard. The standard di- the-evidence review will be the factfinder’s “weigh should neither con- rects that courts proffered disbelief of the defendant’s rea- inferences, flicting evidence and deter- [nor] sons.4 Whether a believes the reasons credibility of 411 mine the witnesses.” F.2d proffered by essentially a defendant is context, at 374. In the Title VII the ultimate Hicks, credibility determination. See finding is whether the defendant intentional- at-, (“[T]he U.S. 113 S.Ct. bur- against plaintiff. ly discriminated at-, den-of-production 113 S.Ct. at 2749. This determination [second U.S. step finding step] necessarily is the third in the precedes credibility-as- McDonnell position Usually, assessing production Court’s in effect maintains that 2.The the burden of helps judge litigants inferences that Court has declared determine whether the "permissible” be the same time "not have created an issue of fact to be decided jury. In addition to the facial reasonable.” ty untenabili- position In a Title VII the allocation of distinction, presumption by of such a Court’s is burdens and the of a creation policies underlying inconsistent with the the Boe- the establishment of a facie case is in- opinions. Boeing presupposes progressively and Hicks sharpen inquiry an tended evidentiary governed by question framework federal law. into the elusive factual of intentional example, relevancy For the standard of under discrimination. intentionally satisfy, Burdine, Dep’t Rule 401 is much easier to Community Texas v. Affairs focused, or in other words much less than the U.S. 255 n. 101 S.Ct. 1094 n. (1981). sufficiency standard for of the evidence: L.Ed.2d 207 conceptual dynamics, Faced with such I fail to probability The standard of under the rule is logically understand how the Court can conclude probable "more ... than it would be without "permitted” specif- that a is to reach a —that Any stringent require- the evidence.” more through ic inference the focused Title VII frame- unrealistic____ unworkable and ment is ing Deal- work at work in Hicks—could at the same time probability language in the of the rule acting outside the broad umbrella of "reason- avoiding has the added virtue of confusion by Boeing. ableness" established questions admissibility ques- between sufficiency tions evidence. maj. op. (outlining steps 3. See at 992 in McDon- advisory committee’s note. framework). Douglas Fed.R.Evid. nell contrast, presupposes evidentiary In governed by burden-shifting framework plaintiff surely might present While a a more Douglas convincing structure outlined in McDonnell by additionally presenting direct Green, 792, 802, 1817, 1824, evidence of the defendant's intent to discrimi- nate, burden-shifting explicitly struc- Hicks states that "no additional Douglas intentionally proof -, ture of required.” McDonnell is more 509 U.S. at sufficiency (emphasis quotation than the standard for 113 S.Ct. at 2749 focused omitted). evidence: marks states, Boeing n. at 2749 n. 4. Our Boeing “It is stage.”).5 As sessment Court, opinion usurp to jury ... not the states that we should not the function of the the credibility jury weigh conflicting of “to the witnesses.” function of the ... determine effect, asking, inferences, in “Is By 411 F.2d at 374. evidence and and determine the jiffy’s support the credibility to there sufficient evidence of witnesses.” F.2d at 374. proffered rea- degree Boeing of the defendant’s disbelief To the that we use as a 994-95, maj. op. at the Court jury’s sons?” see vehicle to decide whether a disbelief of Boeing’s explicit directive.6 by violates supported the defendant is sufficient evi- dence, spirit Supreme violate the Court we reluctancy the of the Court I understand precedent and the letter of our own. in Title VII cases to state that verdicts always supported by sufficient evidence. are DeMOSS, Judge, joined by Circuit JERRY tempting, policy, a matter of It indeed is E. SMITH and RHESA HAWKINS appellate review a standard for to construct BARKSDALE, Judges, concurring in Circuit for our- cases reserves of Title VII which part dissenting part. in and jury verdicts power selves the to overturn wholeheartedly I concur most of the especially egregious. Howev- with we find which er, legal analysis presented, explicitly on and to decide cases based both we are not free concur, majority implicitly, opinion.1 in the policy debate which the Su- our view of already example, Boeing with the reaffirmation of resolved. preme Court has “rejection prof- Shipman, Co. v. 411 F.2d 365 Cir.1969 of the defendant’s states (en banc) controlling enough at law to sustain a as the test for measur reasons is erred evidence, ing sufficiency of U.S. at- and finding of discrimination.” original panel by applying opinions in the case erred cites from the First 5. The Court maj. sufficiency analysis. the evidence its See the same standard for Second Circuits to opinions hypo- diversity Supreme op. These recite in federal cases that the Court at 994-95 n.6. which, claim, they brought applied no reasonable thetical cases had in cases under the Federal despite Liability Boeing, Employers’ could find discrimination factfinder Act. 411 F.2d at Kurn, presentation prima facie case and evidence (distinguishing of a 370-73 Lavender v. hypotheticals (1946)). pretext. look at these A close 90 L.Ed. 916 rely Thus, on courts mak- original panel Boeing that their conclusions reveals in the case erred credibility ing conflating applicable ordinary determinations: by to the standard trials with the standard announced federal court suppose employee example, an made out a For truly crimination, specific Supreme Court in the context of a age dis- bare-bones Court, opinion statutory action. The responded employer and the ordinary Boeing's applying standard for federal employee necessary skills for the lacked the cases, court trials Title VII commits the same job. Suppose also that unrefuted analysis Boeing today. bears re error Our pretext, response be- that the was a showed peating: employer employee fired the cause the had employer's conceal own acts of embezzle- provided by The standard instance, such an there would be a ment. In for sufficien- and Circuit Courts in FELA cases outset and a disbelieved facie case jury question cy to create a of evidence plain pretext, that no reason- but we think it Liability Employers' proper Act, the Federal under discrimination on such able could find disagree. But with this we do not a record. cases which are not based non-FELA federal Materials, Inc., 30 F.3d Woods v. Friction statute, test of suffi- the formulation of the on (1st 1994). Cir. 260 n. substantially ciency different. of evidence is possibility do that an [W]e not exclude Boeing, at 373. 411 F.2d may explain away proffer of a employ- pretextual reason for an unfavorable concurrence, colleague, my special 1. In his might explanation Such an ment decision. include, Garza, Judge in the result Emilio concurs protection example, of business majority, in effect dissents reached but protection reputation secret or even (1) majority’s our his- reaffirmation of from engaged employee in undesirable an who had sufficiency Boeing measuring test torical conduct. of the evidence cases; Co., Long Lighting Island Binder holding evi- majority's (internal omitted). (2nd 1995) citations Cir. employer's reason is articulated dence that independently support find- false does not cries out with 6. Even the fact situation in many My own view is in compared of discrimination. irony the rationale of the when opposite. opinion Boeing the mirror held that senses Court. Our en banc concurrence, nothing trary special that in conclusion St. the further Hicks, employer Center v. that an was less than candid about Mary’s Honor -, 125 L.Ed.2d 407 discharge every its reasons for will not in appeal Boeings applicability on to changes support instance be sufficient to find- Majority cases. employment age discrimination of discrimination because of under I Majority concur also with the opinion opinion at 993-94. the ADEA. at 992-93. holding majority opinion presump- agree majority’s I cannot with the conclu- by Douglas McDonnell tion raised by supported prima sion that verdicts employer once the meets framework vanishes falsity facie case and evidence of would “ordi- articulating legitimate of nondis- its burden narily” supported by sufficient evidence. employment criminatory for the ac- reason Majority opinion at 993. Nor would I hold permissive inference al- tion and that “ordinarily that such verdicts would not” be language in Hicks by certain does not lowed supported by Rather, sufficient evidence. I appellate scope of our review. See alter the agree majority’s with the statement that the Nonetheless, I Majority opinion at 992-93. question yield categorical “does not an- to verdict continue believe Majority opinion swer.” at 993. I see no supported by not against Guiberson Oil was point quantify in attempting predict or legally sepa- evidence and write sufficient particular when how often a factual show- opinion explain why rately in Part I of this ing will be sufficient in a civil case. The majority incorrectly applied I believe the has when, evidence will be sufficient as measured legal principles to reach correct by proof, the ultimate burden of and under wrong result. standard, a rationale factfinder large part, I to concur in am also able reasonably could find that the dis- reservations, although certain with age. criminated on the basis majority’s analysis of that now “infamous” agree I analysis, While I basic do passage in Hicks that factfinder’s “[t]he dis- majority adequately not believe the has an- put reasons forward belief of the significant questions concerning swered if (particularly disbelief is accom- defendant application permissive of the Hicks inference suspicion mendacity) panied may, standard “suspicion mendacity” and the together elements of with the language in ADEA I separately cases. write case, suffice to show intentional discrimina- II opinion express my Part of this -, tion.” 113 S.Ct. at concern on those issues. agree completely I the evidence jury finding will be sufficient to Finally, dispute applica- while I do not age only when a rational fact- bility Douglas procedural of the McDonnell reasonably finder could infer that was a general framework to ADEA cases as a prop- employment determinative reason for the de- osition, question I logic do whether the un- Majority opinion at cision. 994. When the derlying permissive ap- the Hicks inference plaintiff-employee relying solely upon is evi- plies equally in ADEA context. On this dence to establish a tendered facie point, I separately write in Part III of this employer’s case and eviden'ce articu- opinion important to underscore differences lated for the reason decision is ADEA, between Title VII and the and to false, that evidence must also be sufficient to identify what I appropriate believe to be the independently support the additional infer- guiding principles in the Court’s ence that the false reason was offered as a opinion in Paper. unanimous Hazen To illus- pretext employer’s unlawful in- point, trate that statutory raise an issue of tentional age. discrimination on the basis of crucial, construction that I believe only is not Majority opinion at 994-95. case, in this but all ADEA cases where permits While Hicks an inference of dis- evidence that an reason is false appropriate crimination in the it does will be used for the inference that the em- require every ployer lying inference purpose concealing case. De- for the spite Judge suggestion Garza’s age. to the con- intentional discrimination on the basis of

1001 ion, develop just aspect I one of this Analysis will case Majority’s I. The point. to illustrate the here Boeing and the Evidence Atlas/Compac It is uncontradicted that the the contin- today affirms both The Court decision makers who terminated Rhodes and standard, Boeing and its vitality of our ued Guiberson/Compac makers who decision employment to dis- after Hicks applicability Attaway were all within the ADEA hired Majority opinion at 992- crimination eases. class, being years age. protected over 40 by some Contrary approach to the taken 94. Allen, It is likewise uncontradicted that who circuits, contemplates consider- Boeing other Rhodes, years age 61 was five older than case, in a both of all of the evidence ation 56, retained; Rhodes, age was while was circumstantial, ten- and whether direct Moreover, Atta- selected termination. Ma- by or non-movant.2 the movant dered by way, is identified Rhodes as his re- who Boeing, opinion at 992-94. Under jority placement, years 42 when he was might that evidence” “substantial even began contracting as a consultant with Gui- consid- to the verdict when sufficient Thus, in 1986. berson Oil December evidence, may of other ered to the exclusion makers, employee the retained decision by contrary proof as to be “so overwhelmed “replacement” Rhodes’ were all within the Majority opin- yield to a directed verdict.” protected age group. ADEA (quoting Neely v. Delta Brick at 993-94 ion previously Our Court has held that dis (5th Co., Inc., F.2d 1226 and Tile charged employee satisfy prima can facie Cir.1987)). Moreover, sufficiency deter- by showing under ADEA that his cases, employment mination “younger replacement was than” the dis cases, dependent peculiarly in other civil is charged employee. E.g., Bodenheimer v. Majority in each case. See upon the facts (5th Indus., Inc., PPG 5 F.3d Cir. opinion at 993-94. Airlines, 1993); Bienkowski v. American majority opinion’s agree I with While (5th Cir.1988).3 Inc., I standard, Boeing which articulation of the agree with that statement the law review, agree I cannot with the governs our establishing prima facie case. purposes of application of that stan- majority opinion’s However, articulates a once in this ease. In to the record evidence dard legitimate nondiscriminatory reason for the view, majority give adequate my fails to decision, employment presumption substantial, over- indeed consideration by Douglas framework raised the McDonnell by whelming, offered Guiberson Oil gone case. Ma disappears and is from the he was was terminated because that Rhodes Hicks, (citing jority opinion at 992-93 justify produce sufficient sales unable 2747-48). at---, 113 S.Ct. at U.S. mar- a difficult his continued that, point, at this it is the Hicks instructs required a substantial reduction ket which (in prima facie case” other “elements of the reason, that I cannot concur with force. For sup- evidentiary facts offered words the majority opinion. reached the result “pre- prima facie ease not the port of the case”) sumption prima majority’s misapplication of support an inference of intention- heavy, and I combine to complicated in this case its at-, 509 U.S. al discrimination. inappropriate, reliance on the rela- believe 2749. In this where by Rhodes to 113 S.Ct. at tively weak evidence offered makers, employee and the retained Rather than decision facie case. establish replacement employee were all within the facts, I reargue the which believe are ade- many age group, of them original panel opin- protected quately in the discussed younger person, replaced or precipitated he was this 2. It was this conflict applicable employee stan- Court's reconsideration he show that whether instead the must Boeing. dard en banc in protect replaced by was someone outside he v. Consolidated Coin Caterers ed class. O'Connor Note, however, Court recent- (4th 1995), Corp., petition Cir. 56 F.3d 542 ly granted a circuit writ of certiorari to resolve - -, granted, cert. plain- an ADEA on the issue of whether conflict (1995) (No. 95-35464). L.Ed.2d 40 1 by showing can establish a facie case tiff rev’d, Cir.1992), very age, near Rhodes’ being than older 2742, 125 “suspicion that Hicks’ of men- S.Ct. do not believe reasonably sup- can work to dacity” language case, undisputed In this evidence that the “age was determina- port an inference makers, employee decision the retained the decision to terminate tive factor” “replacement” employee all mem- were Rhodes. substantially protected age group of the bers probative of weakens the value evi- Rhodes’ held on several occasions has Our Court replacement employee, dence that the al- no Title VII there is that under though age protected group, the within was presumption no of dis therefore case and Thus, younger than Rhodes. no reasonable replacement employee the crimination when infer, juror could in this was protected same of the class is a member the determinative factor the decision employee. E.g., Meinecke v. discharged the simply terminate Rhodes on the basis of the Houston, 66 F.3d H Block & R of “element of the facie case.” See Haz- Cir.1995) Title (prima facie ease under VII 609-11, Paper, en 507 U.S. at 113 S.Ct. at requires proof that the retained reason, 1706. For that I conclude that the protected or employees outside the class re majority opinion, although applying the cor- placed discharged employee per with a the standards, legal wrong rect reaches the re- class). protected In like son outside the sult. manner, logically it follows that when the protect makers are all of the same decision Applying II. Problems discharged employee, it is ed as the class Hicks Permissive Inference likely similarly less that unlawful discrimina majority’s I concur conclusion that discharge. the reason for the For tion was permitted by only the inference Hicks will alleging if this were a Title VII case example, support jury finding sometimes of discrimi- race, proof because of that all discrimination nation and that controls as to wheth- makers were members of of the decision required er the additional of inference dis- complaining employee as the same race supported crimination will be sufficient considerably probabili would undermine the majority’s evidence. The brief treatment of ty a factor in that race was issue, however, ignores prac- substantial had no decision. The diffi applying “suspicion tical difficulties with concept in culty grasping this its discussion mendacity” language of to Rule 50 motions where, hypothetical place of similar work evidence, raising sufficiency either here, place at issue the work there were judge panel. before the trial or appellate disproportionate number of within individuals protected class the decision maker Prior to when Title VII discrimina- protected judge, might was within the class. See tion cases were tried to the we ----, reasonably expected judge 2750-51 have that a trial suggestion (rejecting prepare sufficiently dissent’s that such evi findings would detailed dence irrelevant on the ultimate of fact and tracking would be conclusions of law rele- However, plaintiff proved liability of when issue issues.4 vant since 1991 cases, indirectly that the rea historically articulated Title VII in ADEA credence); eases, unworthy of jury. son was see also the factfinder is the Title VII Center, Mary’s typically Honor Hicks v. St. 756 cases are submitted to the on (E.D.Mo.1991) 1244, 1252 F.Supp. (citing single fact issue of “intentional discrimina- tion,” makers were typically decision members while ADEA cases are sub- protected same class in of the court’s mitted to the on the dual issues satisfy liability conclusion that failed to discrimination and the issue of proving § (prohibiting ultimate burden intentional dis willfulness. See 29 U.S.C. VII), rev’d, age); crimination under Title discrimination because of 29 U.S.C. findings controlling. It was in fact the detailed the trial as which were judge presented controversy in Hicks which enees, damages we can infer that the drew the 626(b) liquidated (providing § discriminatory bias in ultimate inference employer’s violation showing that the upon a determination, willful). making its are we not reason- ADEA was than from the result rather backward separate issues are no Generally, there analyzing the evidence involved? jury to deter- require the which submitted have been or reasons which reason mine Comparing Title and the ADEA III. VII explanation for employer as an by the offered Likewise, usually no there is actions. its Statutory Paper, Hicks and Lan- A. Hazen finding on the issues of whether additional guage rejected such reasons jury disbelieved any “suspicion of jury found nor whether cursory Even a examination reveals therefore, submit, mendacity.” there are substantial differences between some better res- following questions demand and applicable under the ADEA standards majority: given the olution than begin applicable those under Title VII. (a) reviewing judge determine comparison Supreme of the How does disbe- opinions Paper. that “the factfinder in and Hazen from the record “rejected” employer’s all of lieved” or Paper, a decision of the Hazen unanimous reasons? Court, Supreme squarely addressed the issue (b) fact- any between a Is there difference sufficiency to support of the of the evidence employer’s rea of the finder’s “disbelief1’ Paper provides an ADEA claim.5 Hazen Hicks, at-, sons, used in as liability in an can be no base there “rejec 2749, and a factfinder’s at age “actually played a ADEA case unless reasons, in employer’s used tion” of the influ role in ... and had a determinative Id. paragraph? the same challenged employment on the deci ence” (c) reviewing judge determine How does 609-11, Paper, 507 at sion. Hazen U.S. was ac- factfinder’s disbelief whether the in statements at 1706 Other S.Ct. mendacity?” “suspicion by a companied requirement Paper elaborate on the Hazen (d) age “actually play a role” and exercise “suspicion term of men- does the What employ appear influence” on the The term does not “a determinative dacity” mean? 607-09, 113 (district, at 1705 Id. at S.Ct. any reported federal case Cir- er’s decision. in Court) (‘We disparate clarify use in that there is no prior to its now cuit or addition, ADEA factor not under the when the In the term does treatment Hicks. feature oth motivating or in the is some United Code appear States employee’s age.”); and id. at history Title or the than the legislative of either VII er (“In 609-11, disparate ADEA. S.Ct. case, liability depends on whether treatment (e) importantly, Finally, perhaps most (under ADEA, age) protected trait reviewing judge can a determine how decision.”). employer’s actually motivated did, fact, draw the factfinder whether required of inten- additional inference after Hazen decided two months tional discrimination? addressing, decision Paper, is a five-to-four ADEA, (1) sufficiency, and not the but jury’s “yes” say answer If we that the law judgment as a matter of propriety of liability permits issue the re- an ADEA after a bench trial which under Title VII judge infer that the “disbe- viewing findings by court that the district “rejected” resulted each of the lieved” or (1) employer (2) reasons, jury’s the reasons offered hypothetical that the reasons,” discharge'were “not the real “rejection” permitted the “disbelief’ or (2) plaintiff/employee had none- “mendaci- but that additional inference of to draw the prove that racial discrimina- theless failed to finally prior of the infer- ty,” and because Hazjen finding liability. jury's of base Paper a rede- reversed and remanded for sufficiency evidence to termination “motivating example, Congress factor” in the dis- For in 1991 ADEA. also tion was (k) charge.6 added to Title VII new subsections defin proof disparate impact the burden of doubt, any there is a real Lest there be (1) prohibiting discriminatory cases and use distinguishing statutory be- basis contrast, By Paper of test scores. Hazen influence” under the tween a “determinative (Hazen disparate impact theory “motivating indicates that is not Paper) and a ADEA (Hicks). ADEA Paper, Title VII under ADEA. factor” under available See Hazen against (“we individu- prohibits 609-11, at 1706 S.Ct. provides age,” is it al but “because disparate have decided whether a im never employer to take action for an not unlawful pact theory liability is available under the ADEA prohibited when otherwise ADEA”); (“Disparate captures id. treatment is based on reasonable differentiation “the Congress sought pro the essence of what age.” than factors other U.S.C. ADEA.”); 607-09, 113 hibit id. at 623(f)(1). VII, hand, § on the other Title (employment at 1705 action based on factor race, on the prohibits discrimination basis empirically correlated with but distinct from sex, color, origin. national religion, employee’s age does not violate the 1991, however, § 2000e-2. Since U.S.C. (cid:127) ADEA). While our Court has not addressed anytime employer is liable under Title VII issue, other circuits have followed protected characteristics “was a one of the Airlines, Inc., E.g., lead. Ellis v. United 73 any employment prac motivating factor for 999, 4, 1996); F.3d 1003 Cir. Jan. tice, though other also motivated even factors School, EEOC v. Francis Parker 41 W. F.3d (em 2000e-2(m) § practice.” the U.S.C. (7th Cir.1994).7 added). 2000e-2(m) By adding § phasis in 1991, Congress intended to overrule the Su Congress Supreme Both and the Court opinion in preme Price Waterhouse Court’s ADEA sepa- treat and Title VII as two 1775, Hopkins, 490 U.S. 109 S.Ct. statutory provisions. rate and distinct Until (1989), which held “an L.Ed.2d 268 that em Congress repeals the ADEA and amends ployment part by prej motivated in decision by defining “age” protected Title VII as a employ violate Title VII if the udice does not VII, characteristic under Title or until after the fact er can show same Supreme clearly expressly and re- have been made for decision would nondis quires everything it in writes a Title VII criminatory H.R.Rep. reasons.” No. 102- automatically case equally ap- should be and 40(11) Cong. U.S.Code & Admin.News plied in an ADEA we should follow the However, 549, 694, pp. though even 695. Paper Court’s lead Hazen and respects ADEA was amended other by recognizing gov- that the standards though Price and even Waterhouse had erning liability liability Title VII ADEA ADEA, applied companion been to the no not, not, are and need be identical. changes unify made to ADEA Under were Paper, applicable under Hazen an ADEA standards Title VII and must dem- Paper, the ADEA. See also Hazen “age actually U.S. onstrate that motivated the em- (“We 609-11, 113 clarify S.Ct. at 1706 now ployer’s “actually played decision” or a role disparate no there is treatment under employer’s making process” decision the factor motivating the ADEA when or “had a determinative influence on the employer is some feature other than the outcome.” The world will not come to an employee’s age.”). end, system nor peril, will our be in because plaintiffs ADEA higher There are other differences in the stan- face different and applicable under plaintiffs. dards Title VII and the burden than Title VII majority Congress 6. Neither the nor the incorporate dissent in Hicks also declined to Title VII ADEA, to the ADEA, make reference nor to the procedure incorporated into the Fair Paper Court's unanimous decision ren- Hazen procedures Labor Standards Act instead. Loril- just previously, dered two months and neither Pons, lard v. expresses any opinion applicability as to anything Hicks to other than Title VII cases. discharging employee, an an inference Inference Hicks Permissive B. The up did be drawn he so order to cover ADEA Willfulness the real reason: unlawful and intentional dis- other, difference in the one crucial There is crimination in violation of the statute. How- provides a statutory The ADEA schemes. ever, act, a lie is a willful and intentional liability permits concept which two-tiered fact, conscious misstatement of a false state- “liqui recovery an additional amount ment made with deliberate intent to deceive. employ damages” upon proof dated good cannot be a liar in faith or One of the ADEA was “willful.” er’s violation negligence. Now if accident as result (base liability); § 29 U.S.C. U.S.C. jury has answered the willfulness issue 626(b) violations); (liability § for willful see thereby employer found that the “No” and 613-15, 113 Paper, 507 U.S. at also Hazen knowledge not act with or reckless disre- did (ADEA providing liqui section S.Ct. at 1708 gard to whether its actions violated the de damages for willful violations was dated (as case), ADEA did in this is it Act). the Fair Labor Standards rived from infer that that same would reasonable to hand, VII, pro not on the other does Title found the lied? think not. have damages. liquidated Under vide for Conversely, jury in if the this case had actu- ADEA, is willful violation ally found “that Guiberson did not tell reckless employer knows or shows when the why discharg- the truth about it was Rhodes prohibit disregard for whether its conduct ing him” and “that stated reason Guiberson’s Paper, 507 ADEA. Hazen ed discharging Rhodes —RIF—was false” 613-15, 113 at 1708. (inferential findings majority says which the jury in this received Accordingly, the evidence), supported by then would be following issues: and answered the certainly almost have would by preponderance of the you find Do answered the willfulness issue “Yes”? Since that defendant Guiberson Oil jury in this case did not answer the plaintiff the Calvin Tools terminated “Yes”, majority’s I think the willfulness issue age? because of his Rhodes collapses house of cards around them. The jury’s answer of probative Answer: Yes. value of the actual completely issue over- “No” to the willfulness (2) you by preponderance Do find upon which the whelms the thin evidence willfully that the defendant acted evidence hypothetical majority to construct the relies Calvin when it terminated “mendacity” support for the finding of as Rhodes? permissive Hicks inference. added.) (Emphasis Answer: No. jury’s of “no” on the willfulness answer CONCLUSION binding appealed and is on this issue was not purposes appellate review. validity pro- seriously question I of a Therefore, finding is jury’s uncontested court, reviewing with- cess which allows showed Oil neither knew nor that Guiberson findings, that the any express to infer out disregard its conduct for whether reckless employer’s rea- jury disbelieved each of the ADEA; by and that find- prohibited was sons and also that believed ignored disregarded in as- cannot reason, any, if was offered employer’s false sufficiency of the evidence this sessing the for intentional discrimi- pretext as a or cover ease. the Hicks question I whether nation. also logic has basis permissive inference Although candor in relation- finds, it did in jury expressly that when the laudatory goal, it is clear ships is a ease, employer not act with did says that an this nothing in the ADEA statute disregard about knowledge or reckless if he does not tell his employer will be liable I the ADEA. actions violated discharge. whether its employee the real reason for his uneasy the Hicks fit of underlying conclude from the premise The fundamental that this permissive this context by inference allowed Hicks is permissive inference application of carte blanche for Court’s if lies about its reasons 1006-1016 principles to this ADEA case is

Title VII

unwarranted. from the result reached on the

I dissent (1) majority ease: because the

facts of this

incorrectly this circuit’s rule applied give overwhelming

by failing to effect by that it offered Guiberson Oil did

evidence age,” Rhodes “because of his terminate majority accorded because the

marginal offered Rhodes to es- probative facie case undue

tablish ultimate issue of on the intentional

effect

discrimination. reasons, foregoing concur

For

legal analysis majority opin- offered

ion, subject expressed to the reservations

herein, respectfully as to dissent majority

result reached the en banc

Court. JONES, Judge,

EDITH H. Circuit dissenting specially:

concurring and DeMoss, I Judge concur in the

Like en majority’s appli- articulation of the law

banc

cable to this case. DeMoss, I Judge agree do not

Like correctly applied were

the rules of law to the us, and I therefore concur in

facts before

Part I of his dissent.

Case Details

Case Name: Calvin Rhodes v. Guiberson Oil Tools

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 31, 1996

Citation: 75 F.3d 989

Docket Number: 92-3770

Court Abbreviation: 5th Cir.