*4 CARNES, Circuit Judge: John filed a in federal lawsuit district court against AI Transport, AIG Aviation, American International Group (“AIGCS”), Claims Services and American (“AIG”) Group International (collectively, defendants”). “the His complaint included claims of age discrimination in violation of the Age Discrimination in Employment (“ADEA”), Act 621-34, §§ 29 U.S.C. disability discrimination in violation of the Americans (“ADA”), with Disabilities Act *5 §§ U.S.C. 12101-17. The district court granted summary judgment in favor of the defendants Chapman’s on claims, ADEA but it denied summary ADA claims. Chapman’s ADA claims were tried jury, before a which returned a verdict in favor the defendants. panel A of this Court affirmed the judg- ment insofar as it embodied jury’s claims, verdict on ADA panel but the Ferrante, Teresa A. Lawyers Commit- reversed grant of summary judgment tee for Right Law, Civil Under Washing- on the ADEA claims and vacated ton, DC, Ashe, R. Jr., Lawrence Nancy E. district award of court’s costs to the defen- Rafuse, Hill, Jr., B. Paul, William Has- dants. See Chapman v. AI Transport, 180 tings, Janofsky Walker, LLP, & Michael (11th Cir.1999). F.3d 1244 We granted Dubus, Atlanta, GA, Richard T. Seymour, rehearing en banc primarily to decide DC, Washington, for Plaintiff-Appellant. important some issues that regularly arise in discrimination cases. Those issues Schaeffer, David N. Kidd & Vaughan, have to do an employer’s ability to Atlanta, GA, Oh, James J. Allison Zousmer select its own criteria for making employ- Stein, P. Kevin Connelly, Harris, Martin ment decisions and with the permissibility Connelly, Moran, Sheehan & IL, Chicago, using subjective criteria. We had also for Defendants-Appellees. planned to address an issue about whether evidence impeaching the credibility of one Allan Weitzman, H. Proskauer, Rose, corporate official could be to under- used Mendelsohn, Gaetz & Raton, FL, Boca mine the credibility aof different decision- Carter, Geoffrey L. DC, J. Washington, maker. As explain course, we will in due Curiae, Amicus EEOC. however, it turns out that general corpo-
rate credibility issue is not presented by the record. case, we While have the we will also use toit decide a whether district * Judge Frank Hull recused participate herself and did not in this decision. Transport AI Tenure at Chapman’s B. party’s finan- losing consider may
court to AIGCS Application His prevail- costs to awarding cial status work- 1988, began Chapman ing party. In October as a senior in Atlanta Transport AI ing for interviewed He representative. claims FACTS I. who Spann, hired Robert and was AI Manager of Claims then Pre-October Chapman’s A. 1989, pro- Chapman was In Transport. History Employment re- performance supervisor. His moted 1969, the middle-of- September ranged from usually until views May From to the sec- expectations” repre- the-scale “meets a claims worked John expecta- category, “above ond-highest Insurance the Hartford sentative tions.” Hartford left voluntarily He Company. began 1969 and September Transport became Insurance AI In late Home supervisor Aviation, which is itself a claims working as division AIG Atlanta, in whole Georgia. AIG owns subsidiary of AIG. Company Insurance companies world- approximately In part in June Insurance left Home He AIG, Avia- wide, AIG including AIGCS. working for began July all in- tion, and AIGCS Transport AI com- Inc., Claimsman, insurance another companies. surance-related liability claims examiner. aas senior pany, Claimsman, handled Transport instituted AI at^ In June While Chapman’s (“Gaines”) account. Three reduction-in-force. Gaines the J. Gordon AI terminated. four subordinates voluntarily 1986, Chapman August superviso- Transport removed *6 to in order company the Claimsman left to handle assigned him and ry duties manager to accept offer become per- formerly duties representative claims Gaines, which had unit of liability general subordinates. dismissed by his formed department. own claims start its decided posi- to the transferred was also Chapman by 1988, was purchased Gaines April (“SIR”) In Retention tion of Self-Insured Company. Insurance Fire Liberty National Manager. division its claims moved Liberty National October September and During Alabama, and offered Birmingham, organization its restructured AIGCS in living apparently who Chapman, was On process.2 in positions new created work- Atlanta, opportunity continue wrote 1992, Chapman -17, September Chapman decid- claims division. in ing president a vice Wogsland, James Beach, Califor- Long to move to ed instead Wogsland positions. AIGCS, open Company. Martin for B.R. vice nia and work AIGCS another Turnquist, and Ward supervised the Martin, Chapman Octo- Chapman on At B.R. interviewed president, Casualty Insurance Fire position Liberty National files of 1992 for ber in .only testified Turnquist September Manager. after Company. Claims Wogs- Martin, assignment Chapman his deposition B.R. a few months people for these “to screen to At- land was back and moved company left inter- stated Turnquist position.” lanta, Georgia. Chapman re- state defendants employees file managerial 1. Professional in expectations" a “meets less than ceived in as- scheme using a five-level were rated August 1989 review. categories in his several "unsatisfactory,” as follows: cending order expecta- "meets expectations,” some "meets formerly as American known was 2. AIGCS "outstand- tions,” expectations,” "above Company. sim- For Adjustment International through- ing.” AIGCS the name we use plicity, will opinion. our out Chapman, impressed viewed was not against the complaint defendants. His in- further, thought AIGCS should look cluded but of age claims discrimination vio- ADEA, lation of the Wogsland 621-34, §§ recommended that talk U.S.C. and disability testified, however, man discrimination violation himself. ADA, §§ 42 U.S.C. 12101-17.4 His Wogsland him interviewed before complaint set out his allegations age At the did. time of the inter- discrimination as follows: views, years Chapman was 61 old. 25. During September or October of month, Later was in- 1992, a supervisor position claims came formed that AIGCS not be hiring would open in the Atlanta Service Center of him. Among the employees eventually Mr. Chapman [AIGCS]. qualified by hired position AIGCS for some were perform position, which would four Transport other AI employees. Gra- have required no out-of-town travel on ham Wiggins was hired the Casualty business. Manager; Claims Warren Jones was hired Mr, Chapman went through the Director; Complex Claims Duane proper procedures to open for the apply Sevillian hired as the Fast Track Man- position at [AIGCS]. The em- [AIGCS] ager; and Ernest John Smith was hired as ployee who interviewed Mr. Chapman a Casualty Representative. Claims Two of position, (Vice James old, four were forty years over but all President of Atlanta), [AIGCS] in- four younger than Chapman.3 formed Mr. that he rely would 18, 1992, On December Chapman was upon Mr. Spann’s assessment of Mr. terminated Transport AI because of his Chapman’s work in making decision. travel, refusal to which he claimed to be position [AIGCS] which the result a heart condition. The facts Mr. Chapman applied was awarded to
relating to that condition
Mr.
Wiggins,
Graham
Wig-
black. Mr.
termination
Transport
AI
are accurate-
gins was
qualified
less
Mr. Chap-
than
ly
panel
summarized
opinion. man for
position,
physical
had no
Chapman,
because they are not relevant 28. AI Transport also transferred Mr. *7 ADEA claims which arose from AIGCS’s Warren Jones and Mr. Duane Sevillian failure to Chapman hire he while was still to perform [AIGCS] positions that working at Transport. AI Chapman Mr. qualified was more per-
form. Mr. Jones and Mr. Sevillian are black, are not physically disabled, II. PROCEDURAL and HISTORY are much younger than Chapman. Mr. A. Complaint B. Motions Judgment Summary 1994, In June for after having exhausted his remedies, EEOC administrative Chapman April 29, On 1996, Chapman moved for filed a lawsuit in federal district court partial summary judgment on disability his old, 3. Smith years Wiggins was was 47 and AI Transport salary on the discrimination old, years old, years Sevillian was 39 and ADA, claims based on the and ADEA Title VII. Jones was 37. The court summary judgment denied as to the salary claims of discrimination in violation of Chapman 4. brought claims of race dis- § 1981. The district court entered Rule in violation crimination Civil of Title VII of the 50(a) of salary dismissal discrimination Rights Act of § U.S.C. 2000e-5 claim at the close the evidence in the trial. seq., et salary and discrimination in violation The race salary and discrimination claims ADA, ADEA, VII, Title and 42 U.S.C. not at appeal issue on and we will not discuss § 1981. district court summary The awarded them further. AIGCS, judgment to AIG Transport and AI on the race discrimination claims and to AIG
1Q19 these other candi- than qualified more in the Included claims. discrimination dates. Facts Material Undisputed Statement for his motion Chapman with Transport,
submitted AIG AI April On fol- were the judgment summary partial summary moved for and AIG Aviation statements: and AIG lowing all claims. AIGCS judgment summary judg- for motion any open separate filed for applied Chapman Mr. 25. In the Statement all claims. Di- ment on Complex Claims including positions, to its Facts attached Casualty Material Manager, rector, Track Fast motion, stated AIGCS Claims Casualty and Manager, Claims two AIGCS Turnquist, the Wogsland and According Representative. Chapman, interviewed who presidents vice super- responsible managers AIGCS Chapman because over Wiggins chose Mr. positions, filling these vising and their con- interview Chapman’s poor all of them. qualified was light of stability in [his] cern “about busi- required positions of these None in a held short jobs he number of travel. ness period time.” Nevertheless, of transfer- instead 26. as exhibits attached depositions open of these Chapman to one Mr. ring motion, Wogsland summary judgment fully accom- have would which positions, reasoning. explained their Turnquist filled Defendants disability, his modated some con- he “had Turnquist stated in- non-disabled positions path” [Chapman’s] career cerns Transport. AI Graham dividuals (sic) jobs after quite few was “there Casualty in the placed was Wiggins and be- Company] [Insurance the Home Jones position; Warren Manager Claims employer].” current to [his Di- fore he came Complex Claims placed was “what (a mind, questioned In his Sevillian Duane position; rector and as fre- many making as necessitated Transport) at AI representative claims ... during what was change joba quent Manager Track the Fast placed was ” Turnquist (a time.... period of fairly short Smith Ernest John position said to he what also described Transport) AI representative claims as fol- interview after his Rep- Casualty Claims placed in was lows: position.... resentative Ward Turn- office] Atlanta AIGCS’s Support [its] Memorandum AIGCS's Complex of AIGCS's quist, President Vice fol- Judgment Summary reads Motion Unit, fill- responsible for Claims who lows: ing position.... allegations belies Plaintiff's evidence interview, he did Turnquist, In his by AIGCS hired he interviewed, ques- candidates with other Wogsland both tes- Turnquist and age. he received regarding when Plaintiff tioned Wiggins Plain- over *8 they selected tified that con- jobs ascertain degrees and switched poorly and interviewed because Plaintiff tiff employment.... stability in tinuity of and Plain- about they were concerned because hired.... was not Plaintiff 14. jobs light of the number stability in tiff’s Su- a Claims Wiggins, black 15. Graham (Turn- period of time in a short had held he was hired for Transport, pervisor 102-08, 78-79; Wogsland at quist at position.... rebut 111). evidence offered no Plaintiff testified Wogsland both Turnquist and 17. Instead, argues that he reasons. these be- Plaintiff Wiggins over they selected of discrimi- were evidence Turnquist's notes feeling con- get a real “didn't cause qualified than he was and better nation Plaintiff, Wiggins from” fidence Wiggins. Plaintiff, than presentation” a “better made toas Facts Statement Material AIGCS's “sharp give did not Tried, Plaintiff and because to be Issue no Genuine There Which questions.... to their answers and concise” support its motion in filed Plain- about concerned They were also 18. as follows: reads judgment, jobs number of light of the stability in tiff's [James] with interviewed Plaintiff 9. period of time.... short had held a he charge of Vice President Wogsland, [the get feeling
I didn’t a real of confidence He did not take an aggressive approach [Chapman] my interview in asking questions me about posi- —from [Chapman] with that I thought tion, and we where we were going. His answers could do and better that he should con- were very sharp, not point, when tinue process the interview with other them, I asked which basically were the people. But I think I [Wogsland]— told same comments that [Turnquist] gave believe I you I did tell that I think [him] me about his Chapman], interview [with need to talk to yourself. [Chapman] When asked for an example of a question Turnquist stated he “thought to which he received an unsatisfactory an- Wiggins Graham presenta- made better swer, Wogsland explained “[Chap- tion of himself and skills. his His knowl- wasn’t very man] clear why he edge skills and thought abilities gone from Home Company] [Insurance he would have—he seemed to exhibit. I several positions before got he just had ... more confidence in Graham in Transport....” way presented his history.”6 work Chapman responded to the defendants’ concerns, shared Turnquist’s motions. disputed alle- AIGCS’s testifying deposition that he looked for gation that he was not hired because of his “stability company with a and a progres- recent instability by arguing that he within particular sion company” and that “had established a record as evidenced “[w]e did not see that in those posi- three performance appraisals which tions between when [Chapman] left Home more immediate indication stability,” of his Company] [Insurance and AI Transport.” and arguing that “he continued to work Wogsland further recounted that: files for J. Gordon Gaines while working Within the that I interview conducted for three employers different between [Chapman], it basically was that he (after time he left Home Insurance not very
was concise years) answers. joined Transport.”7 AI Chap- Turnquist's deposition 6. pertinent attached to 7. The portions of AIGCS’s State- response man's to AIGCS's motion for sum- ment of Material Facts as to Which There is mary judgment pages contained not attached no Genuine Issue to be quoted Tried are supra as an exhibit to AIGCS’s motion. In those Chapman's note 5. Response parts to those pages, Turnquist following: related the that statement reads as follows: I didn't feel that [Chapman] John came into 9. dispute. Plaintiff does not the interview to sell himself his knowl- disputes edge, Plaintiff the factual allegation skills and position abilities for the ¶ interviewing I was for. Defendants Everybody mischaracterize Plain- realize, differently does it a little didn't I testimony. tiff's but I Plaintiff's interview with get strong feeling a real that this was Turnquist require did asking questions somebody that going to be able to be to which Turnquist already either had an- the leader of this I unit. didn’t feel that he swers or did not need those answers. things the—he had all the that we were Turnquist had Plaintiff's file which included looking] for in being terms of able to build Continuity resume. stability em- confidence people, in a group of so that he ployment pretext was a for intentional dis- could be the leader group peo- of that 259, 260) (Chapman Dep., crimination. pp. ple. ... years Two and a half you later — Moreover, Wiggins both only thing know—the quite that I can recall worked for a total of employers six other frankly general is that impressions overall before applying for transfers to AIAC and that I had of the interview with John and I inquire did question Wig- specifically do recall the comments that I *9 gins' 15-25; "stability.” (Wiggins Dep., pp. [Wogsland] made to Jim after I interviewed Wogsland 138) Dep., p. him. But I cannot spe- recall in detail the disputes 14. Plaintiff the factual allegation cific comments that questions he made to ¶in 14 (sic) might that extent that Plaintiff I al- has asked was specific or the Rather, ready employee. might detail he have regarding offered was Plaintiff his job (Plaintiff's history, 132) but not I transferred. reached Exhibit conclusion on my the basis of disputes 15. interview with John that we Plaintiff the factual allegation ¶ could do better I felt than John. in 15 to the Wiggins extent that Graham lot of asked a that he did not contend He employment his entire compared man interview, con- gave during the history questions Wiggins’ history answers, interviewed or otherwise that both undisputed cise “it that alleged and Instead, that there argued for Chapman Wiggins worked and well. Chapman Mr. through- [Wogsland ...” of value employers probative “limited other six was total Chap- Mr. opinions careers.8 about entire Turnquist’s] their and out ” demeanor.... and appearance man’s allega- to AIGCS’s responded Chapman nor the ex- affidavit Chapman’s Neither poor aon hired not based was that he tion at- that deposition were his cerpts from testimo- “this contending that interview judg- summary to his exhibits as tached discrimina- intentional for pretext ny [was] version a different out response set ment Wogsland not refute did tion.” interview.10 interview. of his evaluation Turnquist’s and files to work on Rather, Transport, he continued AI Wiggins employee. already an those three of 81) for all Gaines for J. Gordon (Plaintiff’s Exhibit was transferred. Thus, indicating a rather than employers. Plaintiff dispute but not does 17. Plaintiff Chapman's interim stability, Mr. lack of pretext for testimony is this contends customer’s employment demonstrated discrimination. intentional handling of its his continued preference for allega- factual disputes the Plaintiff 18. changed factor as it insurers —a claims ¶ al- Plaintiff to the extent that tion in performance favorably his on reflects which working AIG for more had been ready Chapman explained industry. Mr. in actually an em- years and three than J. relationship Gordon this continued Plaintiff had asking for a transfer. ployee Wogsland during his interview Gaines by his as evidenced a record established fact, in Wogsland wrote "Gaines” were which appraisals performance Moreover, in interview. stability. of the *10 Magistrate Judge’s C. Report mission to part the EEOC as of the con- and District Court Order process. ciliation position That statement Chapman’s described po- transfer to the In August magistrate judge sition of SIR Manager a promotion. report issued his and recommendation. The defendants later admitted that respect age With to the discrimination transfer was actually a lateral claims, move. report recommended that Kornblau, Esther AIG’s Director Em- summary AIGCS’s motion for judgment be ployee Relations New City, York report denied. The Chapman’s stated that position wrote the statement and evidence about his Valerie overall rec- Zaleski, the human ord resources continuity manager of work on J. Gordon for AI Transport, it in checked Gaines’ files cast on Atlanta. prof- doubt AIGCS’s O’Brien, Bill president fered the vice nondiscriminatory reason charge in- operations claims stability. at AI report Transport, The also stated ei- ther read it proffered reason, or had it AIGCS’s other read to Chap- him interview, poor point did not subjective any man’s was out Spann, mistakes. Chapman’s reason was inappropriate supervisor, an immediate basis upon summary probably which to award judgment. statement, reviewed the he did point not any out mistakes either. 5, 1997,
On March the district court issued an order granting summary judg- The district court granted the defen- ment favor of the defendants Chap- dants’ trial, motion in however, limine. At claims, man’s ADEA but denying sum- the court allowed to introduce mary judgment on the ADA claims. With position most of the statement evi- into respect claims, to the ADEA the district dence exhibit but not part of it court held that present did not which characterized transfer as sufficient evidence for a reasonable factfin- promotion. required The court Chap- der to conclude that the proffered second man to redact part position reason, poor interview, his pretextual. statement. Chapman’s ADA claims were held, Having so the district court found it tried jury before a from June 17 to June unnecessary to address AIGCS’s first rea- 30, 1997. jury returned a verdict in son, Chapman’s job instability. recent favor of the defendants. respect claims, With to the ADA the court concluded that genuine there 2, 1997, were July issues On Chapman filed a motion of material fact including Chap- whether to reconsider and summary vacate judg- man was disabled and whether travel was ment on his ADEA argued claims. He an essential job. function Accord- that evidence adduced immediately prior ingly, the court denied to and at the trial of his ADA claims claims, on the ADA leaving them to be genuine established a issue of material fact decided at trial. about whether AIGCS’s nondis- criminatory regarding reasons his ADEA
D. Post-Summary Judgment claims pretextual, thereby requiring Events and Trial a jury trial. Chapman also filed timely Before trial claims, of the ADA the de- motion for a trial new on the ADA claims. fendants moved in limine to exclude argued, a He among things, other position prepared statement AIG sub- court had erred redacting from the gave filed, man after the Nor did put lawsuit ever forward testi- during the interviews. Nowhere in mony or other Wogs- evidence to contradict depositions man's he Wogs- does contradict testimony land’s during the interview testimony land’s answers were '"[Chapman] "[h]is very why wasn’t clear about
very them, sharp, point, when I gone asked Company] [Insurance Home basically which were the same comments that positions several got before he to Trans- [Turnquist] gave me about his port. interview.” ...”
1023 Chapman’s transfer description false the false of defendants’ the position statement promotion position The dis- in the statement transfer. of his characterization EEOC, the motions. Thereaf- the defendants filed the denied both trict court the harm- ter, panel costs to the defen- concluded that error was court awarded the panel of id. the grant Finally, the less. See at 1252. Chapman appealed dants. claims, the court’s of costs the ADEA vacated district award judgment on summary claims, defendants, ADA the the because the “district verdict the jury the lacked post-trial incorrectly mo- concluded that it of his court court’s denial district authority Chapman’s finan- tions, the of costs to the defen- the to consider award calculating in the cial status a factor dants. costs awarded to the defendants.” total Opinion E. Panel at 1253. Id. of issued decision panel A this Court III. STANDARD OF REVIEW part. part reversing
affirming de a district We review novo Transport, F.3d v. AI 180 See summary apply grant judgment, court’s Cir.1999). (11th Addressing the ing legal the same standards as the district the summary judgment on award of Cos., Whatley court. See CNA Ins. claims, panel concluded that ADEA (11th Cir.1999). F.3d Under “properly evaluate court did not district 56(c): Rule Procedure Federal of Civil pre- effort to Chapman’s demonstrate its [sjummary judgment nature reason for is if appropriate textual of AIGCS’s ” at 1249. decision.... Id. the evidence before court shows Chap mate- that the fact that there is no issue as to panel genuine The decided companies moving party for different rial fact that the man worked six fact matter of thirty-five period judgment and the to a as a year over a entitled determination, involving primarily making had done work law. that he three-year must all and make during client the recent court view evidence one for three em inferences in favor of the period in which he worked all reasonable summary judgment. of material genuine party opposing raised a issue ployers objective rea to whether AIGCS’s fact as factual The of some mere existence son, job instability, was Chapman’s recent summary judg- dispute will defeat id. pretext age discrimination. mate- dispute that factual ment unless panel that those facts stated affecting the outcome of rial to an issue judg summary at the were also sufficient relevant rules of substan- the case. The sub doubt on AIGCS’s stage ment cast a dis- materiality law tive dictate interview, reason, poor jective fact. of material puted genuine A issue directly did though evidence even is suffi- unless there fact does not exist inter . AIGCS’s assessment of rebut favoring nonmoving cient evidence reasons, those See id. For view. return a jury party a reasonable grant court’s panel reversed the district favor. verdict its fur judgment and remanded for summary Miami, 52 F.3d v. City Haves on that issue. See id. proceedings ther (internal (11th Cir.1995) and cita marks 1250-51, 1254. omitted). the district We review tions evidence, award of claims, exclusion respect ADA court’s With a motion to reconsider and denial of there sufficient costs panel concluded that of dis only for abuse jury to find reasonable evidence v. NationsBank cretion. See Walker affirmed favor of defendants Florida, N.A., Although id. at 1251. jury’s verdict. See Cir.1995) (exclusion evidence); Techni court had abused that the district believing v. Dornier Medical Resource Servs. evidence cal by excluding from its discretion *12 (11th Inc., 1458, Sys., 134 1468 plaintiff F.3d Cir. One a method can use to establish 1998) (costs); Cavaliere v. Allstate prima Ins. facie case for an ADEA violation Co., (11th 1111, Cir.1993) (1) 996 F.2d 1115 by showing is that he was a member of (Rule reconsider). (2) 60 motion to protected the age group, subjected was (3) action, to adverse employment was
IV. DISCUSSION
(4)
qualified
job,
to do the
was re
placed by or
position
otherwise lost a
to a
A. Summary Judgment
younger
Tocco,
individual. See Benson v.
ADEA Claims
Inc.,
1203,
(11th
113 F.3d
1207-08
Cir.
Applicable
Legal
The
Framework
1997).
ADEA
makes it “unlawful for
Establishment of
prima
the
facie case
employer
to fail or refuse to hire or to
effect creates a presumption the
discharge any
or
individual
otherwise dis
employer
unlawfully
discriminated
criminate against
individual with re
against
the employee.
If the trier of
spect
terms,
compensation,
to his
condi
fact
plaintiffs evidence,
believes the
tions,
privileges
employment,
because
if
employer
the
is silent in the face of
of such
age.”
individual’s
29 U.S.C.
the presumption,
the court must enter
623(a)(1).
§
Supreme
As the
Court has
plaintiff
for the
no
stated:
issue of fact remains in the case.
plaintiff
alleges disparate
[w]hen
treat- Combs,
Burdine,
106 F.3d at
(quoting
1528
ment, liability depends on whether the
254,
(footnote
work,
met his burden of We will discuss
each AIGCS’s
case,
establishing
prima
facie
a presump-
Chapman’s
reasons and
attempted show-
tion of discrimination arose and the burden
ing
pretext
separately.
reason
proffer
shifted to
legitimate,
AIGCS to
nondiseriminatory
hiring
reason for not
a.
Record of Recent
Combs,
Chapman.13 See
Chapman’s purported his work. But loyalty to one way those employers client of several of his facts no undermine does not AIGCS’s any do him stated good Chapman’s An concern about analysis. changing employer reasonably employers could be more con- three times in a recent three- cerned with an applicant’s to em- loyalty year period.21 appears Chapman may It require separate have shared not ferent, decisionmakers for dif- 20. related, opinion job history companies AIGCS’s what his albeit to use the Spann showed. The resume that he same criteria. hired submitted into AI Transport Wogsland employers, gave Turnquisl AIGCS listed all of his but date interviewed one as to when he started in 1992 and chose or finished any Spann of them. to hire him into AIGCS. Whether and, so, Chapman's job-skipping considered if argument, At shortcoming oral contend- how he factored into his ed that AIGCS’s reliance on bearing hav- decision has no on whether ing changed employers Turnquist reasonably three in three times and Besides, could consider it. years legitimate, nondiscriminatory nothing rea- there record to implausible son was skipping history anyone such con- show the else *19 Chapman applied cern have been resolved when job Chapman got must who for the at AI know, Transport was Transport. any hired AI in 1988. That all we appli- For contention is meritless. Different position Transport decision- cant for that at AI in 1988 makers are entitled to be disloyalty concerned about had an even record worse of to things. employers, different Just as we will dictate not or had some additional shortcom- any company, employment ing. criteria to we will the num- was concern pretext. AIGCS’s prof- AIGCS’s knock down to Unable jobs in compar- changed had instability by Chapman job ber of times of reason
fered hired as had recent, who was of time. Smith Wiggins, period short himself a ing Chapman Manager, Casualty many Claims times as employers as changed the not his to extend appeal attempted has and short a had in as recent contending Wiggins, beyond comparison Chapman, who had of time. Unlike period Transport em- AI the other of that one in employers different for three worked was John Smith —who ployees AI Trans- joined before he years —Earnest the three an position had in another by AIGCS hired worked for only in Smith had port his own. history similar to employment period during that time employers two help not However, does this contention for (and been with of those he had the first First, make this he did not Chapman. had been Chapman who years, unlike six court; there, the in the district argument period for during that first one with his an contended had only employee only year).22 one own was history similar to his Carriers, to Sevil- dissenting point Redwing colleagues Inc. Our Wiggins. See 1489, 1511 Jones, employees who two other Apartments, lian Saraland and Cir.1996) (“As rule, AIGCS, a general positions at n. 30 in other were hired arguments claims or too, not job we will address insta- they, and contend court.” to the district fairly presented not Chap- than as bad or worse bility records omitted)). (citation Chapman him- argument This is man. or in the district court not make in self did Second, if we were to consider 'even this Court. banc briefs to panel or en his Smith, still Chapman would history of job apparent conclusion Chapman’s We genuine issue of share create have failed to liability expe- general Chapman’s purposes of inconsistent about has not been 22. AIGCS rience, the word "re- Wogsland's use of and history Chapman's "recent” what it means during deposition point his at one cent” Sup- in job skipping. In its Memorandum of during skipping Chapman's job what refer Summary Judgment, port of Motion period of time approximately the same in was Wogsland’s Turnquist and proffered AIGCS general liability have Chapman did not which experience. light stability in Plaintiff's "about concern jobs he had held in short the number inconsistency, because there is see no We time,” characterizing it as "re- period purposes why what is recent for no reason deposition, Turnquist further cent.” his as skipping must be defined recent job job Chapman's about specified that concern type particular of claims purposes of a jobs quite a after instability "there was few handling more fundamental experience. The Company] before and Home [Insurance however, proffered point, that the reason Wogs- employer].” current [his he came to skipping although job not “recent” — three-year period as specified that same land opinion, panel opinion, this is how concern, testifying deposi- his the source of it. dissenting opinion characterized have looking been someone tion that he had reason, specified actual The progression job stability and within Turnquist's depositions, Wogsland and that in those company, "We did not see period during particular short job skipping positions when he left Home three between time, period from defined as the Transport.” Company] and AI [Insurance departure Insurance Com- from man's Home Wogs- suggests dissenting opinion 1985) (in Transport The at AI to his arrival pany Turnquist's 1988). concern (in point Wogsland land at one did three-year period skipping during be- apply adjective "recent” to that deposition time, doing way Home left Insurance so in no period tween time but his period. Transport, specificity from 1985 went AI which was detracts Wogs- nothing vague or undefined inconsistent with there is somehow And deposition period between time specified land's statement hqd general liability ex- time Chapman left Home recent Insurance "had (which Transport regardless proffered as a at AI perience” was never he started work — "recent,” him). "nearly it hiring perceived one would call whether reason for not recent,” recent,” "mighty re- peri- "pretty darn apparently inconsistency is between "recent” for cent.” to as not od referred *20 sufficient, argument that this lacks merit. For one legally legitimate, nondiserimi- by was hired after thing, Jones AIGCS natory reason under the Doug- McDonnell Chapman Transport, had been fired AI Indeed, analysis. subjective las/Burdine jury and do not think a we reasonable job evaluations of a candidate are often could find discrimination the failure of a critical to the process, decisionmaking an company applicant recently to hire fired if anything, are becoming more so in our insubordination, company another for increasingly economy. service-oriented just (yet again) or one who had left one Take, example, job for requiring continu- event, employer for another.23 In ing interaction with public, such aas job did not have a recent history Jones Attitude, sales position. clerk or wait staff instability Chapman. like contrary, To the articulateness, enthusiasm, as well as employer during he had been one appearance, can vitally important be three, period Chapman had been with job, such a yet there are few if any ways to in fact company had been with that one gauge qualities such objectively or from a Sevillian, since 1983. As for he had also application. written give pro- Interviews only been with employer during one spective employers a chance if to see an three, period Chapman had been with and applicant personal has the kind of qualities he had been with employer since job requires service and can be the best 1981.24 way an has to determine how a person interacts with Body others. lan- Chapman produce Because did not suffi- voice, guage, contact, eye tone facial cient evidence reasonable factfinder expressions and other sig- non-verbal cues to conclude that proffered AIGCS’s non- nificantly impression affect the appli- discriminatory job reason of recent insta- cant makes on the interviewer and will bility declining Chapman hire was a make on those compa- whose business the discrimination, pretext age the defen- ny retain, wants to attract or but such summary judgment dants were entitled to things quantify are hard to and articulate ADEA claims. any precision only and can be evaluat- subjectively. ed b. Interview AIGCS articulated another reason qualities Personal heavily also factor hiring Chapman, for not poor inter into concerning decisions su view. asserts that pervisory professional positions. See Turnquist’s assessment of his inter Co., Sengupta v. Morrison-Knudsen legally
view is not a sufficient reason to (9th Cir.1986) (racial F.2d dis grant summary judgment for the defen alleged layoff position crimination subjective dants because of its nature. (“Indeed, engineer) in many situations with an begin important [subjective We threshold indispensable criteria] point: subjective A process....”); reason can constitute a Risher v. Aldridge, 23. While there is opinion no evidence that that are set out in this differ from posi- knew at the time he hired Jones for the dissenting opinion. those set out in the Not Complex Chap- tion of man had Claims Director that so. A careful review will reveal that the dif- by Transport fired been AI for insub- period ference is in the of time involved. We ordination, Turnquist's undisputed deposition proper period feel that the measurement testimony was that he did not consider the time after left Home Insurance Complex posi- man for Claims Director joined Transport in 1985 the time he until AI tion because he heard that had left three-year period proper in 1988. That is the gone Transport compa- AI with another measurement because it is the one the deci- ny. used, proffered by sionmakers one AIGCS. explained, plaintiffs As we have neither nor might appear It to the casual reader that courts are allowed to recast rea- concerning the historical facts histo- sons. Jones, Smith, Wiggins, ries of and Sevillian
1034 sufficient, nondis- (sex legitimate, Cir.1989) (5th legally is a 592, dis 597 F.2d 889 articu- if the defendant criminatory reason promote) to in failure alleged crimination reasonably specific factual a legiti lates clear necessarily and criteria (“Subjective subjective it based its upon which in basis decisions personnel mately into enter of a (citation example Continuing our positions.” opinion. supervisory volving might sense, position, it wait staff clerk or omitted)). as “common sales such Traits ambition, employer loyal defendant be sufficient originality, not judgment, good applicant pri plaintiff assessed not hire the say must be it did to tact” often ty, and fashion, appear- v. “I did like his Watson subjective simply because marily in a 977, Trust, How- explanation. 487 U.S. no further Bank & ance” with Fort Worth said, 2787, did 2777, employer L.Ed.2d 827 “I ever, 101 991, if defendant 108 S.Ct. to an individ his (1988), essential because hair they appearance are yet not like his profes all supervisory in a and he had dandruff ual’s success was uncombed 999, 108 at S.Ct. at shoulders,” id. had his See position. or “because sional his over interpre (“It a most radical fingernails be 2791 would or “because pierced,” nose enjoin to use a court to the of Title VII he came tation or “because dirty,” process plain T- historically settled and a pants of an wearing short interview largely because criteria ly relevant articulat- shirt,” have the defendant would are difficult which to specific” lead decisions reasonably basis a “clear and ed review.”) Zahorik v. Cor (quoting court applicant’s subjective opinion' for its —the Cir.1984)). (2nd 85, Univ., F.2d 96 729 view) nell (in appearance. employer’s bad be therefore subjective reason would That Congress intend- It inconceivable sufficient, nondiscrimi- legitimate, legally deprive statutes anti-discrimination ed plaintiff hiring for not natory reason ability rely on im- an shift would then The burden applicant. deci- in its portant criteria evi- to offer sufficient plaintiff back are criteria those merely sions factfinder find a reasonable dence for evaluation. See subjective only capable of pretext for reason Trust, that the defendant’s Bank & 487 v. Ft. Worth Watson discrimination.25 phrase 999, at To at 108 S.Ct. U.S. subjective reasons differently,
it we, banc sitting as en Although stepchildren the red-headed prior our court, ability to overrule have for em- nondiscriminatory explanations Combs, at see 106 F.3d precedent, circuit reasons Subjective ployment decisions. today 1534, holding not believe our we do objective reasons. just as valid can be past with our decisions. is inconsistent Telegraph v. Union Nonetheless, Allison Western we are mindful of Cir.1982) (11th 1318, Co., 680 F.2d by the Su articulated requirement (“An may properly be employer’s decision “the in Burdine defen preme Court (citation factors.” omit subjective based on reasons explanation legitimate of its dant’s Inc., Bell, 737 F.2d ted)); v. Blue specific” Fowler reasonably so be must clear (11th Cir.1984); v. 1007, Conner 1011-14 a full and be afforded plaintiff that “the Co., F.2d Bus Gordon pretext.” Fort to demonstrate opportunity fair Cir.1985) (A (11th “is reason subjective Burdine, S.Ct. at 450 U.S. employer’s satisfy omitted). subjective legally sufficient A reason (quotation false, Inc., by testimony or Borden, be contradicted can warnings 25. The Mendoza text, Cir.1999) (en explain in the As we 1255-56 other evidence. banc) (Carnes, J., concurring), subjective dan- reason is where decisionmaker's prevarication” are not gers "perception specif- reasonably supported by a "clear and holding case. Burdine, our in this inconsistent required by there explanation, as ic” purely warnings were sub- directed Those that can be objective factors tested will be litigant conclusory impressions of a jective, testimony evidence. against which, objective if facts are devoid of producing] legitimate, [a burden of non- observed that impre- diseriminatory long reason] so as it is ca- cise answers were not “the answers [he] *22 evaluation.”); objective pable Woody of v. expect [Chapman] would needed to [be Comm’n, County St. Clair give able to] to technicians under his con- (11th Cir.1989) trol, 1562-63 (affirming district within his unit.” As an example of an employer’s subjec- court’s unclear given by answer Chapman, Wogs- tive evaluation of long employee how land stated that very “wasn’t stay pretextual would on the was not clear about why gone he had from Home it objective because was based on indica- Company] [Insurance po- several other tors); Crab, Inc., EEOC Joe’s Stone 220 sitions before he got Transport....” (11th Cir.2000) F.3d 1280 n. 17 Turnquist explained that he too (“[Ejmployment may legitimately decisions was concerned about how pre subjective long be based on criteria as sented his work history. In comparing capable criteria are objective of evalua- Wiggins Chapman’s interviews, and Turn tion degree and are stated with a sufficient quist stated: of particularity.”). But to the extent I any inconsistency past thought between our Graham Wiggins deci- made a course, today, presentation sions and our decision better of himself and his today knowledge rule we announce skills. His controls. skills and abilities and thought that he would have'—he apply We now present this rule to the just seemed to exhibit. I had—I don’t reason, case. Although have an answer to that —I seem—I felt I Chapman’s interview, poor subjective, was had more confidence Graham in the AIGCS offered a clear reasonably spe- and way presented he his work history. explanation cific why Wogsland and though Wogsland Even and Turnquist, decisionmakers, sub- arrived at jectively Chapman’s interview, evaluated subjective Wogsland conclusion. stat- they explained the grounds ed: for their evaluation with clarity reasonable Within the interview that I conducted specificity given the passage of time.26 with [Chapman], it basically was that he AIGCS thus met its producing burden of very was not concise with the answers. legitimate, nondiscriminatory reason. He did not take an aggressive approach in asking me questions posi- about the After AIGCS articulated this second tion, reason, where we were going. Chapman’s interview, His answers poor very were not sharp, point, when burden pres- shifted back to them, I asked which basically were the ent sufficient evidence that AIGCS’s rea- same gave comments that [Turnquist] pretextual. response, Chap- son was me about his Chapman], interview only [with man said there was “limited Chapman argues, among things, substantially an interviewer must take verba- Wogsland Turnquist’s explanations interview, tim notes of an or even notes at insufficient because were neither con- all, proffer legitimate, be entitled to nondis- temporaneously documented nor detailed. criminatory gleaned reasons from an inter- First, explanations, we believe that espe- their view, today. and we refuse to hold that Such cially Wogsland’s, sufficiently detailed judicial oversight close of a business and its given Wogsland pro- circumstances. even hiring practices unprecedented would be example question vided an of a to which unwarranted. Second, Chapman's answer was unclear. Similarly, we have never held that an em- purport interview notes did not to be com- ployer rely plete. upon cannot reasons that are not testified that he did not every every pro- write down down in advance topic word or even written cess, of the selection conversation. This Court has never held that and we decline to do so now. strength comparative physical about and Turn- [Wogsland value
probative case, In this general. and women Chapman’s ap- men Mr. quist’s] opinions considered the decisionmakers that “this demeanor” pearance he was aggressiveness lack of dis- for intentional pretext testimony is interview, not because in the aggressive crimination.” lines, it notewor- Along these age. focus colleagues dissenting Our another thought Turnquist also thy one reason statement Wogsland’s old, interviewee, years only who Chapman was that unimpressed *23 enough for aggressive was not answering ques- aggressive not he was Manager.28 Casualty Claims position of there Because the interview. during tions respond to had a fair chance Chapman not as people are older stereotype that is a subjective the objective bases for the to people, they would younger as aggressive him, but hiring for not proffered a reason as of aggressiveness use have us treat objective those bias, never refuted Chapman age to equivalent as hiring criteria single a he never said asked bases. He suspicious. We de- highly at the least interview, never said tumble, the during question rough and In the to do so. cline the interview during world, explained clearly aggres- business competitive highly between many employers he had so why and much a valuable can be siveness AI Trans- Company Insurance sought a Home after trait. Just sought given concise said he port, and never stereotype to an linked after trait was asked. questions he not mean answers does consideration impermissible Moreover, affidavit submitted Chapman’s and consid- search for cannot employer judg- response to AIGCS’s from the independently the itself er trait the mention does not even ment motion according to example, For stereotype. poor the interview Because interview. physically are not stereotype women by clear up reason backed subjective hiring If an strong as men. legitimate, a specific bases is reasonably require great a positions that people for reason, nondiscriminatory per- it would be strength, physical deal of to evidence present to sufficient hire a failed to the decisionmakers missible for the was pretextual, reason show particular if that of a woman man instead summary judg- entitled to than defendants were physical strength man has more Combs, claims.29 See ADEA woman, ment though deci- even particular stereotype not be based on sion could assuming that the record for basis in stated deposition testimony, equally im- thought be Turnquist aggressiveness only Wogsland and cour- businesslike, teous, respect- professional and the board. positions across portant in all interviews, something during no one ful However, testimony deposition disputes. parties issues we asked 29. One of the Wogs- responsive to fact was not about that plaintiff could argue a was whether brief and Turnquist's assessment land and subjective proffered a pretext as to establish interviews, and performance in his man’s objective showing proffered that a reason argue the district court Chapman did not we conclude pretextual. Because reason responsive. that it was genuine issue failed to create reason, objective see fact as to of material was Sevillian. interviewee Al- 28. That other no occasion supra, we have Part IV.A.3.a Casualty Claims Man- though to be hired not pretext objective-to-subjective address position. ager, hired another Sevillian was panel opin part That spillover issue. Wogsland or That does not mean ion, remains F.3d at Chapman, 180 see aggressiveness. disregarded Sevillian's lack course, we do not fact that vacated. Of assessment only factor in their It was one imply any way issue does address that interviewees, definitely did Sevillian dissenting opinion agreement with the instability our history the recent have it. against Chapman. Nor is there weighed
4. Conclusion B. Chapman’s The Trial of ADA Claims summary judgment, In order to avoid plaintiff produce must sufficient evidence 1. Chapman’s Motion for a New Trial for a reasonable factfinder to conclude that B panel Part opinion addresses employer’s proffered each of the nondis- jury contentions ver- criminatory pretextual. reasons is See id. against dict him on his ADA claims should plaintiff (requiring to rebut “all of the be upon overturned based the trial evi- proffered defendant’s nondiscriminatory dence. See Chapman v. AI Transport, 180 actions” reasons its to avoid Cir.1999). F.3d pan- The law).30 as a matter of defendants el concluded “that the district court did not this case nondiscriminatory two abuse its discretion in refusing grant failing reasons for Chapman. to hire He Chapman’s motion new trial on his produce did not sufficient evidence to cre- ADA against claims all defendants.” Id. genuine ate a pretext issue of as to either. Agreeing with that conclusion and the Therefore, we affirm the district court’s it, analysis supporting we reinstate Part B *24 grant judgment to the defen- panel opinion. the independently adequate dants on two bas- Chapman’s es: failure to create a genuine 2. The Redaction of Part of pretext objective reason, issue as to the the Position Statement genuine also his failure to create a pretext subjective panel opinion issue of as to the The rea- also deals with son.31 man’s contention that the district court Combs, employer the prof- defendant opportunity come the you to discuss this with legitimate, nondiscriminatory fered three rea- or open posi- to be considered for one of the why promoted sons it had employee another Turnquist tions.” did consider plaintiff. instead of the We the “consider[ed] open positions, for one of the the proffered evidence related to each of the three position Casualty Manager. Claims After (em- nondiscriminatory reasons.” Id. at 1539 interviewing Chapman position, for added). phasis analyzing After each reason Wogsland were less than im- separately, plaintiff we concluded the pressed with his interview and were con- presented sufficient evidence to show that history cerned job instability. about his pretextual, the two of reasons were but he facts, Given we jury those do not think that a present had failed to sufficient evidence to reasonably age could infer discrimination as pretextual. show the third reason was See id. Jones, positions to the other that went to plaintiff at 1539-43. Because the failed to Smith, Moreover, and Sevillian. as we have reasons, rebut one of the three we held that mentioned, already position the for which defendant was entitled to as a Jones was hired was not filled until matter of law. See id. at 1543. Transport. had been terminated AI dissenting opinion The would carve out a exceptions number of to the well-established Implicit Chapman's contentions about plaintiff pretext a rule that must show as to positions premise the other is the that an each reason. To the extent this can, applicant by simple expedient of ex- presents any case exception, a factual basis for such pressing open positions, put an interest in all reject exception. we To the employer filling large on an a number of present extent this case does not a factual positions proffering the burden of reasons for exception, express basis for such an we no hiring applicant position. for each exception might view on whether that exist in Here, quite That would be a burden. some case with different facts. example, Wogsland people alone hired to fill positions during (Chap- the Fall of 1992 Chapman's 31. While main focus is on the 1992). man was interviewed October of At Casualty failure to hire him Claims employer appli- least where the considers an Manager position Wiggins, which went to particular position cant for and has a rea- also contends that he has viable ADEA hiring generally appli- son for not him that is positions claim as to the three other that went Jones, (as is), Smith, instability cable need and Sevillian. His written specifically applicant application express consider that note did interest "con- cerning openings every positions position open new or to be the time AIGCS, open available” at and said or comes in the he "would wel- future. corporate official by one ing statement excluding from its discretion abused credibility to undermine may be used position state- part of the trial evidence at who was not corporate official of another had submitted ment the defendants submission of making in the Chapman’s charges. involved response EEOC at 1252. We See id. the statement. by Esther prepared That statement gener- implication about part of the leave vacated Kornblau, employee, as AIG n. at 1252 credibility. See id. corporate al part The process. conciliation EEOC presented are not issues 2. Those the district statement position them. record, express view on we no evidence de- admit into court refused by AI transfer Trans- Chapman’s scribed as a Manager of SIR position
port Pursuant Award of Costs 3. The actually lateral it was when promotion, 54(d) to Rule part concluded panel The move. defendants, party, prevailing as the admitted have been should the statement Fed- pursuant to bill of costs submitted been, have it “would into evidence 54(d)(1), and Procedure Rule of Civil eral perspective, evidence of costs to initially court awarded the district credibility.” Chap- lack of the defendants’ request- in the full amount defendants panel posited man, at 1252. The However, $34,504.90. after ed, which was might have been useful that the “evidence objections, the defendants filed integri- general the defendants’ impeach bill of costs for an amended submitted However, panel n. 2. ty.” Id. at $7,088.70 $28,943.95. deducting After court’s failure the district concluded *25 in the amend- requested the amount position of the state- part to admit that items it in order to remove ed bill of costs id. See ment was harmless. litigation necessary not found were we rehearing en bane granted When we case, court awarded the district of the issue of wheth- to decide the had intended $21,855.25. Chap- in amount of costs the official’sfalse corporate one er evidence calculating in the man contends concerning plaintiffs em- the statement pay, required to costs he was amount of undermine the admissible ployment is to failing to erred take district court the official, corporate credibility of another account, as he re- into status his financial decisionmaker, or to actual who the the amended opposition in quested corpora- credibility of undermine the of costs. bill of the Upon closer review tion as a whole. however, record, find that issue is not we parties to brief the asked the We Although corpo- a in this case. presented has court the district issue of whether in who was uninvolved rate official non-prevailing consider authority to Transport pre- from AI man’s termination resources, or the lack party’s financial statement, the AI position pared the calculating thereof, in a factor involved in officials who Transport to be Rule of costs awarded. amount the statement reviewed his termination 54(d)(1) other than provides “costs Thus, any out mistakes. point and did not be allowed attorney’s fees shall directly relevant the false statement unless party prevailing course credibility. makers’ We to those decision provision That directs.” court otherwise whether district court need decide costs presumption a establishes to admit the failing abused its discretion party, but vests prevailing to a be awarded however, evidence, agree we with discretion decide court the district any error was harm- opinion that panel 54(d)(1); Del See Fed.R.Civ.P. otherwise. less. 346, Lines, 450 U.S. August, Inc. v. Air ta 1146, 1149, L.Ed.2d 287 351, 67 101 panel S.Ct. of the part vacated We leave (1981). that a false or mislead- opinion indicating
1039
However, the district courts
paring the financial
par-
resources of the
not to
the full amount of
ties
unduly prejudice parties
discretion
award
would
assets and
party
undermine
prevailing
presumption
costs incurred
“the
54(d)(1)
unfettered,
Rule
Medford,
creates
prevailing
see Head v.
62
(11th
favor,
parties’
...
351,
Cir.1995),
the foundation of
F.3d
354-55
“since
legal system
justice
is adminis-
costs
of a penalty
denial of
the nature
tered to all equally, regardless of wealth or
prevailing par
for some defection on [the
448;
status.” Cherry, 186 F.3d at
see also
part in
ty’s]
litigation.”
the. course of the
Smith,
from an accredited law and six John Smith: Smith received an associ in employers years the 31 between finish degree ate’s from Middle Georgia College ing college and starting work for in degree bachelor’s from the Uni AIGCS. worked on Gaines files versity Georgia and Masters at all of the employers for which he Science & Administration Georgia College worked between leaving Home 1976.10 Insurance Smith’s history starting work for included: Southeastern AIGCS.6 Underwrit (from 1966) (as ers June 1965 to February Warren Jones: Jones graduated with a an inspection engineer); the United States degree bachelor’s from Jonathan C. Smith (from Army February February 1966 to University in 1977. He attended insur- 1968); (from Crawford & Company March training ance graduate classes but had no 1971); 1968 to March Georgia Farm Bu lawor school training.7 post-college His (from reau Insurance Company March experience (1977-79); included: Prudential 1976); 1971 to March Prudential Insur (from Company Crawford & mid-1980 to (from ance Company March 1976 to March 1982); (from Progressive mid mid-1982 to 1977); Government Employees Insurance 1983); (from early late 1982 or USF & G (from Company 1979); June 1977 to June 1982/early 1988); late 1983 to 1987 or Dairyland Sentry Insurance Company (1987 Transport or 1988 to AIGCS/AI (from 1980); June 1979 to June the Moore Thus, present).8 Jones had a bachelor’s (from Group 1986); January June 1980 to degree, graduate no or law training, school (from Gulf January Insurance Co. 1986 to employers and four 11 years be- 27, 1988); December AI Transport college tween and starting to work for the (December 27, present).11 Thus, AIGCS. associate’s, bachelor’s, Smith had Duane Sevillian: graduated Sevillian graduate degrees, no law training, school with a degree bachelor’s from Johnson C. employers and seven in the twenty years Spann 3. See Dep. Ptf’s Ex. 48 to (Chapman's job applica II at D000065-D000068 (Chapman job application); D000065 see also tion ánd resume submitted to Defendants in ¶ 1988). E-2 depositions R7-79-Ex. at 3. All part summary judgment filed as record. R5-71; R6-76; R9-84; ¶¶ see also En Banc 6. See R7-79-Ex. E-2-3 at 4-5. *28 Defendants-Appellees Brief of at 1 n. 1. Dep. 7. See Jones at 21-26. applicants,
4. including Chap- A number of the man, initially by Dep. had been hired 8. See Jones at AIGCS and 33-36. Transport part then were transferred to AI as restructuring. of a Dep. 9. See Sevillian at 11-17. ¶¶ 3-7; Dep. 10. See Smith at
5. See R7-79-Ex. E-3-4 at 14-15. Ptf's Ex. (EEOC Stmt., Dep. 30 to Zaleski Position 2; 1) Spann at Dep. Dep. Attach. Ptf's Ex. 48 to at 11. See Smith at 17-31.
1042 (in 1992); Smith October position army manager and discharge from between (in specialist position casualty a claims for AIGCS. to work beginning 1992); the casual Wiggins October Wiggins graduated Wiggins: Graham (in position October manager ty claims a bachelor’s Institute Tuskegee from 1992).14 School Emory Law attended degree gradu- leaving without year one before Analysis. II. school, Wiggins law leaving ating.12 After Re- Summary Judgment A. Standard fueling Airlines as a at Delta of worked view 1969, for 6 months. in Fall agent, starting at working included career His insurance this case Reviewing the briefs (from February Co. Insurance Allstate I was arguments, oral listening 1974), Casualty Co. Maryland to counsel sense that defense struck 1978), (from Insurance and Gulf 1974 to from a different arguing appeared to be 1988), (from beginning before Co. actually at than the one procedural posture Thus, Transport at 1988.13 to work AI large a number case. With issue in this year one degree, had bachelor’s
Wiggins a fact, defense counsel issues of material school, employers and three lawof assumptions hypothesized making often — before insurance years of his career from the evidence inferences raising or for AIGCS. beginning work hypoth- in the record.15 Counsel’s fill gaps appropriate may have been applied esizing to trans applicants in a case where he company persuasive even Transport AI to sister fer from judgment grant- against summary applicants arguing applying, After AIGCS. seeking to favor was ed in or Wogs- interviewed both Jim each were in Defendants’ fa- a trial verdict position preserve Turnquist for the Ward land and vor, of review the standard the in manager. After casualty claims make require us to situations would terviews, that he those Chapman was informed in favor of Defen- all inferences casualty claims reasonable for the not been hired had However, in- because this case dants.16 the other four men position, while manager summary judgment a grant volves variety positions: hired for (in obliged Defendants, we awarded to position director complex for a Jones in favor of inferences 1993); track draw all reasonable for a fast Sevillian March Atlanta, 16. See, Samples City e.g., v. Wiggins Dep. at 15-16. 12. See Cir.1988) ("A court F.2d 16-22, Wiggins Dep. at 26. See evaluating summary judgment motion must light most favorable the evidence in view 116-22; Dep. Dep. at Jones Sevillian fact find If a to the non-movant. reasonable 85-86; 51; Dep. Dep. Wiggins at Smith evaluating draw more the evidence could er 67-70. facts, and if that one inference than detail, hypothe- genuine in more these of mate 15. As I discuss issue introduces inference ''recent”; (1) defining the term fact, grant ses include: (2) the court should not rial then why Wogsland Smith’s justifying reviewed appellate An summary judgment motion. Chapman’s; performance evaluations but not legal when a applies standard court this same (3) assuming have been must summary judgment appeals an adverse party thought that he said that he ''mistaken” when omitted); (citations City ruling.”) Morro Wogsland inter- before he interviewed (11th Cir. Birmingham, Turnquist was Turnquist because view with 1997) ("In reviewing sufficiency interview”; (4) claiming "screening just verdict, we support jury's evidence inter- Wogsland had viewed Sevillian's in favor of the draw all reasonable inferences non-movant, Turnquist; being better than view as 'whether to determine in order (5) claiming that either or Turn- have jurors conclud reasonable could or not Sevillian, Jones, Smith’s quist considered the evidence jury did ed based job history or as better than stable omitted). ”) (citations presented.’ *29 man's.
1043
See, e.g.,
Chapman.
Taylor
Runyon,
positions
v.
applied,
for which he
and that
(11th Cir.1999).17
861,
F.3d
866
175
substantially younger employees who were
equally
qualified
or less
than
Assessing
Summary
B. Standards
for
positions.18
received the
“Establishment
Judgment
Employment
Motion in
prima
of the
facie case in effect
creates
Discrimination Case
presumption that the employer unlawfully
majority,
Like the
I
assume
the
discriminated against the employee.” Texas
in
burden-shifting test
first announced
D ept.
Community
v. Bur
Affairs
Green,
Douglas Corp.
McDonnell
v.
411 dine,
248, 254,
1089,
450 U.S.
101 S.Ct.
792,
1817,
93 S.Ct.
U.S.
1044 Cir.1991) (11th that issue (holding 784, for nondiscriminatory reason legitimate, waived). court is district raised before not burden Chapman, of rejection their I con- majority, will like the Accordingly, evidence proffer back to shifts of the as to each case prima sider offered that the reasons tending to.show facie undisputed and will i.e., employees to be four “not pretextual, by Defendants pretext and justifications analyze the de- for the reason[s] the true employees. of the four as to each showings 255-56, 1094- at at S.Ct. Id. cision.” I majority agree and point, the To this Legitimacy and the Subjectivity of However, I the law. of on the substance Nondiscriminato'i’y Reasons issues. clarify several must outset, emphasize what I At the must ' Four Facie Case and 1. The Prima does embrace. does and my argument Applicants Younger subjective position suggesting By illegitimate then or, per are se reasons on summary judgment at At no time it, majority erects straw countering Chap challenged have appeal Defendants position, it. That topples man and then of the any as to case prima man’s facie however, I advocate one which is neither Jones, Sevillian, given to positions four in order I advocate which need to nor one Indeed, summary Smith, and Wiggins. summary justify conclusion of either Defendants’ no section judgment, granted improvidently facts or undisputed material statements it would be difficult Admittedly, this case. support memoranda their subjective reasons justify a claim that Chapman’s pri- addressed judgment even posi- my true inappropriate; always applications for as to the ma case facie instead, tion, upon two venerable rests Instead, De AIGCS.19 employment with by after case adopted case principles of the only the second fendants addressed circuit, many by well others. this i.e., by Douglas steps, three McDonnell hiring Wiggins for justifications offering First, and should have examined courts However, as to Chapman.20 subjective instead of reasons to examine continue Smith, Sevillian, Jones, Defendants objective than rea higher scrutiny consid Chapman “was not only Springs stated that v. Three Resi sons. See Carter Sevillian, (11th 635, Treatment, positions by filled ered for the 132 F.3d dential justifi Cir.1998) Jones, no (rejecting subjective offered criteria and Smith” —but consider subjective not to mean cation for their decision “are too allow applicants comparison It is axiomatic positions.21 ingful him for those between” subjective before the criteria argument observing not raised such employer upon by an appeal has been waived. be relied trial court or “cannot prima facie Georgia plaintiffs v. Prosperous seeking to defeat Campaign See Cir.1998) (11th is less plaintiff that the SEC, showing case 149 F.3d for the applicant chosen appeal qualified thán not raised on (holding that issue the ma- Thomas, Notwithstanding promotion”).22 abandoned); Depree knowledge of Wogsland, R6-72, based on 19. See R6-73. positions avail- Chapman's resume of the Facts) (Stmt, Undisputed interviews, 20. See R6-72 ac- at the time able 5-6. possible that knowledged that it was positions qualified number for a man Facts) (Stmt, Undisputed at 2-4. 21. R6-72 lime, including, without limita- open at that below, justification is not As discussed tion, manager position. the fast track claims actually only but is evidence insufficient Dep.) (Wogsland at 186-90. I R5-70-Ex. Additionally, a review discrimination. Co., 32 Oil F.3d Howard v. BP deposition cited passage of Defendants 22. See J.) Cir.1994) (Moreno, (stating even support their claim did individuals "seeks in case where positions other than consider interpersonal managerial, business casualty manager.position shows the claims
1045
principle,
jority’s disagreement
test,
with this
suant
Douglas
McDonnell
acceptance
upon
logic.
its wide
rests
sound
legitimate,
must be
as well as nondiscrimi
reasons,
nature,
Subjective
by
very
their
context,
natory.
In this
“legitimate” does
often serve to mask discrimination.23 See not refer to the moral value of the nondis
Hosp.,
Roberts v. Gadsden Mem’l
835 F.2d
reason,
criminatory
“a
for
defendant may
(11th Cir.1988)
793,
(“[Informal,
798
se-
...
promote]
[refuse to
an employee for a
subjective
promotion
hiring
cretive and
or
good or bad reason without violating feder
processes
decision
tend to facilitate the
Damon,
al law.”
196 F.3d
1361. Rath
criteria.”);
impermissible
consideration of
er, “legitimate” refers to the requirements
867,
Corp.,
Miles v. M.N.C.
750 F.2d
871 in Burdine that
explanation provid
“[t]he
(11th Cir.1985) (“This circuit
frequent-
has
ed
legally
must be
justify
sufficient to
a
ly
subjective
noted ...
evaluations
judgment for the defendant” and that the
involving
supervisors provide
white
a defendant must “frame the factual issue
ready mechanism for racial discrimination. with
clarity
sufficient
so
plaintiff
that the
supervisor
This is because the
is left free will have a full and fair opportunity to
one,
indulge
preference,
to
a
if he has
pretext.”
255-56,
demonstrate
450 U.S. at
another.”).24
one race of workers over
101
S.Ct.
1094-95.25 In judging wheth
“[wjhile
Thus,
nothing
there is
inherently
subjective
er a
reason is legitimate, we
wrong
allowing
with
decision makers to
required
have
“capable
that it be
objec
criteria,”
subjective
base decisions
it is
tive evaluation.”
v.
Conner
Fort Gordon
strictly
reasonable to scrutinize
decisions
Co.,
(11th
1495,
Bus
761 F.2d
1500
Cir.
criteria,
subjective
based on such
which 1985).
Miles,
See also
ciency.
subjective
those
Some
objectively evaluated
which cannot be
Distinguishing
S.
Between the Busi-
should
accorded no
vague,
be
and/or
Judgment
Challenges
ness
Rule and
reasons,
subjective
weight.
such as
Other
Credibility
Non-
of Proffered
premised
stereotypes,
that are
those
discriminatory Reasons
strictly.30 Subjec-
should be scrutinized
Defendants,
majority,
reasons,
reasons,
like
contends
objective
tive
like
should
arguments
that a number of the
raised
be evaluated based on the evidence of-
Chapman,
e.g., regarding the
instabili
support
fered in their
and the context in
example,
ty of other
over
which those reasons arose. For
candidates
their entire
careers,
willing
accept
long
courts
been more
contravene a
line of
have
cases
subjective
specific
reasons where
criteria
protect
employer’s
judg
business
prior
existed
to the adverse
ment
being second-guessed by judges
See,
Carter,
e.g.,
by juries.31
action.
argument miscompre-
643 or
This
*34
claims,
(reversing summary judgment
part
be- hends
as well as the
criteria); Miles,
poorly
points
cause of
drafted
made in this dissent. While the
(noting
protects
where Cir.1995)). Circuit, citing the The Sixth mate, reasons for its nondiseriminatory decision, ob- Russell has Circuit’s Seventh action, prof- employee must challenged the of employer’s strategy “that an served each pretext as to that shows fer evidence a number of reasons simply tossing out However, I also reasons. proffered of the hope in the employment action support its there are with other circuits agree easily could of them will ‘stick’ that one Third rule. The general to this limits suspi- that “a multitude backfire” such Circuit, stated: addressing question, suggest itself explanations may cious that, summary to avoid do not hold We process was investigatory employer’s the cast doubt plaintiff the must judgment, of the any application questionable so in a vacuum. proffered reason on each inappropriate.” rule is ‘honest belief bagful a proffers If the defendant 799, 809 Chrysler Corp., Smith reasons, plaintiff and the legitimate Cir.1998). doubt on a manages to cast substantial cases and the persuasive I these find them, may plaintiff the number of
fair
in them. While
reasoning applied
the remainder.
to discredit
not need
employment
an
requiring
rule
general
rejection
factfinder’s
That is because the
demonstrate
plaintiff
discrimination
proffered
of the defendant’s
of some
every legitimate,
pretext as
each
employer’s
may impede
reasons
by the
nondiseriminatory reason offered
so that a
seriously enough
credibility
majority of
in the
is reasonable
employer
may rationally disbelieve
factfinder
applied
cases,
fails when
rule
reasons,
general
even if no
proffered
remaining
twined,
percentage
to a small
of cases.32 Demon-
employee’s showing
pretext
pretext by
(but
doubt
strating
“[c]asting
on an
as to one of
may
those reasons
employer’s
will)33
asserted reasons for an ad-
always
sufficiently weaken
oth-
verse
action” is an indirect
preclude
er reason so
a grant
as
demonstrating
employ-
means of
“that the
summary judgment
employer. See
to.the
er acted with the forbidden animus.” Russell,
Similarly,
1051 their reasons to throw encouraged bewill disputed34 subjective the jury as to the Aka, certainty 1298- F.3d at at a wall—with 156 like mud See assessments. exceptions sug of This, will stick because the other those reasons like 99. one Sixth, Third, and Seventh being able plaintiff unlikelihood of gested common sense. Circuits, with well subjective percep- accords purely prove that the validity subjective, its reason is aWhen was dishonest the decisionmaker tion credibility of the entirely on depends that other referring proof to the without Where the reason. offering witness pretextual. offered were reasons jury a compromised, been credibility has reasons, I would all of the above For subjec reasonably conclude could Seventh, Third, Sixth, and D.C. adopt the is not by the witness reason offered tive rule of general exceptions Circuits’ words, that the sub or, in other credible prof each plaintiff to rebut requiring a indeed, lie.” a “was jective reason untrue — internal to their addition reason. fered Id. exceptions consistent logic, these if that we am concerned Additionally, I that the Supreme Court’s admonition of Defendants suggestion follow ‘never in Douglas test “was McDonnell excep- reasonable these adopt refuse mechanized, ritualis rigid, be tended blueprint for tions, a created we will have sensible, Rather, order merely it tic. perhaps over- hoary term is This evasion. light the evidence way to evaluate ly appropriate used, in this case but it is criti experience as it bears on common impuni- can offer with If a one. defendant ” United of discrimination.’ question cal in a nondiscriminatory reasons ty a slew v. Bd. Governors Postal Serv. States motion, 1478, 711, 715, Aikens, 103 S.Ct. 460 U.S. showing pre- strong knowledge that (1983) 1482, (quoting L.Ed.2d 403 would be of them textuality as to 99% Waters, 438 U.S. Corp. Constr. Furnco un- one survives long as but irrelevant 2943, 2949, L.Ed.2d S.Ct. scathed, discrimination then (1978)). be, purposes, practical all will cases exacerbated problem is This precluded. Non- Ways Disputing Multiple survives the the one reason where discriminatory Reasons If subjective one. purely is a onslaught way one is more than as “there Just exceptions reasonable apply the we do not cat,” than one is also more circuits, there employers skin adopted by the other 1980) (stating that the Aka, Cir. specif Chapman, unlike It is true that ... employee’s "perception of himself subjective assessment of ically disputed the the decision Aka, perception of It is the relevant. F.3d at 1298 his interviewer. ("Aka Indeed, Aka, relevant”). too, he, maker which is expressed enthusi claims challenged disputation Aka’s interview....”). dissent I believe at his asm he ground that on the subjective assessment If the without difference. is a distinction more evidence "offered no claim support of only evidence in *37 applicant] successful [the than went enthusiastic that his interviews that he said had at 156 F.3d interview.” at the well, Valenzuela during his inter aggressive that he was Defen point, more to the 19. Even views, 1298 n. sharp concise he offered and that summary ground at raised same answers, majority dants this unlikely of it seems good by stating that “Plaintiff’s judgment that he court would conclude judges on this sufficient qualifications is not his opinion of regarding a ma dispute genuine raised a had A summary judgment.” R9-90-Ex. Indeed, to defeat perceptions of subjective fact. terial to chal only real more, means 11. Because to at insufficient employee, without subjective Turnquist's See, lenging Wogsland and e.g., Holifield summary judgment. survive challenge is to 1555, interview (11th of the Reno, assessments Cir. 1565 115 F.3d v. it would not credibility, I conclude their 1997) reasoning district court (adopting of counter Chapman to order); only Pepsi be insufficient v. summary Co, Inc., Hawkins judgment subjective assess 274, Cir.2000); his own claims with (4th their ments, 203 F.3d and, thus, 1446, Co., it is also futile but that 28 F.3d Dev. Dey & v. Colt Constr. Flax, unnecessary him to do so. 1994); Smith Cir. way plaintiff challenge offered, for a a defen- reasons but a showing of dis- proffered dant’s nondiscriminatory parate rea- treatment is relevant to the Reeves, 120 sons. See S.Ct. at 2108 question ultimate of whether a discrimina- (“Proof explanation that the defendant’s tory likely reason more motivated Defen- unworthy of is simply credence one form dants in their decision not to hire probative of circumstantial evidence that is proffered man than did the reasons. discrimination, of may intentional and it be n persuasive.”). quite Supreme As 6. Conclusion Burdine, Court in stated once a defendant conclusion, In the majority ap- and I proffers legitimate, nondiscriminatory rea- proach similar, this case from a yet not sons, plaintiff may dispute those reasons identical, perspective. Applying these by showing “that she has been the victim principles summary rec- judgment of intentional discrimination ... either di- ord, I a large find number disputed rectly by persuading the court that a dis- facts factual claims not supported by criminatory likely reason more motivated the record. Accordingly, I turn to a close employer indirectly by showing that review summary of the judgment record. employer’s proffered explanation is un- 256, worthy of credence.” 450 at U.S. Gaps C. and Inconsistencies in the Rec- S.Ct. 1095. I mention at not principle ord I majority believe that dis- 1. “Recent” it, putes but because attack on Defendants’ reasons Turning involves not first to the claim that Chapman only challenges to the credibility of rejected the was because of his “recent”35 his Rather, majority asserts "job that the actual recognize I that the mere fact that an history” reason for employer Defendants' "questions” decision not applicant had about an job stability hire was his lack does not mean that rejected during "specified” period time applicant the re- questions. because of those Addi- —not See, cency period. especially, of that Majority tionally, majority may while the not believe 1033, Op. n. 24. at This "job conclusion fails for a history” explanation Defendants’ re- First, Wogsland number of reasons. upon Wogsland’s stated in lies characterization of deposition support- “recent,” one of the Chapman’s alleged job reasons instability as ing his decision not to hire appeal only Defendants did not make stability "the lack job positions focuses, of recent in argument majority on which the prior joining but, instead, Transport.” AI R7-79-Ex. repeatedly emphasized the (Wogsland added). Dep.) H (emphasis at 134 aspect "job history” "recent” of their reason. statement, See, This majority attempts which the e.g., Defendants/Appellees Brief of at 31 over, 24, gloss Majority Op. ("recent (em- see at n. history job n. 11 skipping”) only part phasis original); (asserting in id. at 32 record, primarily but it is a Chápman statement relied against "had two strikes him: he upon by appeal. Defendants on poorly Brief of history interviewed and had a recent 11; Defendants/Appellees at job (emphasis 31-32 n. En skipping”) original); in En Defendants-Appellees Banc Brief (stat- at Defendants-Appellees Banc Brief at 2 Second, quote upon that, majority ing which the Wogsland’s perception addition to interview, regarding relies for its conclusion Chapman's Defendants' "Wogsland also was "job history” merely reason Wogs- states that plaintiff's concerned about recent work histo- land "questions” ry, suggested tendency change jobs which Chapman’s job history during peri- often”) fairly (emphasis that time original); at id. (Wogsland ("More od. See Dep.) R8-81-Ex. B recently, though, plaintiff began job (quoted 24). Majority Op. (" n. skipping”); stability id. at 4 ‘recent quote, ”) regard- unlike in his positions’ statement (quoting Wogsland Dep. at 134 *38 ing Chapman's job history, Wogs- "recent” adding emphasis); (discussing id. at 25 say land questions does not that Wogsland’s these were a decision to at “look[ ] recent histo- course, job ries”) added) basis for his decision. Of (bracketing (emphasis I do not origi- in dispute nal); that this explains Wogs- statement (asserting Chapman id. that "had more subsequent land's statement that job changes he relied on any comparative”) recent than Chapman’s job lack of "recent” stability (emphasis original); Appellee's Supple- making his Chapman. decision not to hire July mental Letter-Brief 2000 at 2 There is no by AIGCS. employment is “recent” his I that skipping, note tory job privilege peri we these timeframe that should a definite reason term with not a clear should defer another reasonable defini that we of time over arguing In ods attached. in eval Wogsland they are not defini by used of “recent” —for definition tion to a allude Defendants record. Chapman, provided uating tions inter the 1992 before timeframe 10-year fact that defense Even worse than the but, their allusions necessity, views— different, un- offered us two has counsel ci record record citations without of “recent” is the supported definitions An not exist.36 do to a definition tations used two dif- Wogsland that himself fact record shows that search exhaustive in evaluating “recent” definitions of ferent ever de Turnquist nor Wogsland neither was stated that he Chapman. Wogsland Thus, at oral asked “recent.” when fined of recent stabili- about “the lack concerned included a defini if the record argument AI joining ty job positions prior only “recent,” counsel could defense tion of period This “recent” time Transport.”39 pe “the implicitly was “recent” argue that employ- Chapman’s includes apparently Not jobs.” plaintiff switched when riod on and The Claimsman ment Gaines cita without record this definition only is also stated that work. Gaines fact re but hypothetical,37 tion and that the fact happy was “not with” of has now that defense counsel mains general “had not recent of “recent”: two different definitions fered undisputed experience.”40 It is liability the 1992 interviews years before ten38 ex- general liability Chapman gained the time between including fuzzy period working while with Gaines and perience with Home of the insubordi- ("recent Wogsland or knew (emphasis original); history”) work that for their on (stating Defendants’ nation or relied id. at 3 stability important”); instead of job is decision to hire Jones "that recent summary judgment or argument more recent at (explaining focus "on nor either id. evenLs”). precedent justifi- that our Beyond appeal the fact we consider on cation, should appeal is raised on an issue not characteriza- rejection holds that of the "recent” abandoned, Campaign see only justifica- to be nullify deemed Defendants’ would tion Georgia, sus- Prosperous I appeal. tion on emphasis on consistent pect that Defendants’ job Chapman's alleged characterization the instability Defendants-Appel- En Banc Brief of 36. purposeful. The as "recent” at 25. lants only distinction between Jones, Sevillian, comparators of three theory pretext in this possible one Since 37. appeal on offered that Defendants have Smith (though Wogsland purposely tailored is that case summary judgment) not at justify re- of concern in order timeframe instability alleged job Chapman’s period of suspect that defense coun- jecting Chapman, I Jones, were the Sev- "recent” than more hypothet- particular suggesting regrets sel illian, instability. periods of and Smith’s ical definition. inability anything other light use of their decision to hire justify their than timeframe Indeed, argument, defense counsel at oral 38. Sevillian, Jones, instead of and Smith "recent”— definition of suggested a third man, with a decision: Defendants faced the 1992 inter- namely, years 12-13 before undefined, and in- rely vague, on the either Brief of Defendants- also En Banc views. See argument have no term "recent" or consistent en banc brief Appellees at 6-8. Defendants' Indeed, decision. defend that whatsoever to "recent”— proffers a definition fourth away sought explain majority likewise interviews. namely, years before the 1992 Sevillian, Jones, hiring by relying and Smith’s See id. at 25. time- exclusively that "recent” almost (relying Op. Majority at 1028-34 frame. See (em- Dep.) (Wogsland H R7-79-Ex. argument and on fact on timeframe added). phasis Chapman was fired after was hired Jones Because, insubordination). Transport for AI (em- Dep.) detail, (Wogsland at 107 H R7-79-Ex. neither there is I in further as discuss added). phasis indicating either that in the record evidence *39 The Claimsman on Gaines counsel,42 work.41 Ac- fered defense procedural the in cordingly, “recent” the context of gener- posture compels us to conclude that sum- al liability experience did not include mary judgment was improvidently grant- with Gaines ed. The Claimsman. This is troubling, not only in light of the lack of a definition of 2. “Job-skipping” record, “recent” in the but also because undisputed It appli- the other differing
the selectively timeframes were experience cants each had less than did applied so as to maximize the harm to Chapman. It is undisputed the Chapman’s job Indeed, application. applicants each experienced had application selective appears on its face to job number of changes compara- in their “transparently pretextual, be and ... to tively careers, shorter have been to having tailored the of Jones needs the employers occasion.” Farber v. four in years Bd. the eleven Massillon be- of Educ., Cir.1990). tween ending school starting AI Transport, Sevillian having employers two may It be that defense counsel could in eight-plus years between ending persuade jury a reasonable that there is a school and starting with AI Transport, very good reason for differing time- having Smith seven frames, employers the twen- or that Wogsland testify could at ty years between leaving the Army trial as to a reasonable definition of “re- starting Transport, with AI cent” that and Wiggins would account for varying his treatment having employers of three aspects different Chap- eighteen job history. years man’s But even between beginning if we cannot his career in in- discount possibilities those or may find surance and starting with AI Trans- persuasive hypothetical port.43’44Thus, definitions of- while had six em- R7-79, 2, ¶4; 41. See E al Ex. Ptf's late-sixties, Ex. 48 to Army during with the the mid- to Spann Dep (Turnquist’s II at D001071 inter- I will measure period time relevant from view notes note "general which "GL” for discharge Army. his from the liability”); Spann Ptf’s Ex. Dep. 48 to at (Wogsland’s D001072 interview notes which majority 44.The notes that did not "general note "GL” liability”). for argue summary at applicants Wiggins other than similar or worse his- 42. hypotheses Of all of the offered for the However, job stability. tories a review of "recent,” definition of I find least credible the summary judgment record reveals that suggestions (or that measure back ten twelve never at raised judg- Defendants thirteen) years or from the 1992 interviews. ment the claim applicants other than Wogsland's Yet testimony at deposition is Wiggins had job stability. demonstrated In- only clear about thing: one that his definition deed, referring Wiggins' job to history, of "recent” period focused on the "prior time Chapman was responding to the claim that he [Chapman] joining Transport.” AI R7-79- was not hired casualty manager claims for (Wogsland Ex. H Dep.) (emphasis at 134 position because of job his lack of recent added). Thus, if (following we Defendants’ stability. Facts) Stmt, (Stmt, See R6-72 Undisputed suggestion) (or measure back ten twelve 3-4, ¶¶ 17-18; at (Resp. R7-79 thirteen) years, we should measure back from Facts) 3-4, ¶¶ 13, Undisputed at 17- initially when Chapman. AIGCS hired contrast, By 18. only justification given further, As I discuss period job hiring Chapman posi- of the instability job applicants for other hired Jones, Sevillian, given tions and Smith is particularly, Smith. singularly AIGCS— unilluminating statement he positions. considered for their 33-36; (Stmt, 4, ¶ 43. See Dep. Facts) Jones at R6-72 Dep. Undisputed at Sevillian at 11-17; 17-31; Dep. Wiggins Smith It Dep. is true that attempting dispute 16-22, career, working In Smith’s qualified man’s claim that he was more than Jones, Sevillian, jobs held nine twenty-three Smith, in the years be- Defendants did graduating tween college starting portions cite and Turn- Transport. with AI Dep. See Smith quist’s depositions at 17-31. they justify where not hir- light fact that the ing second casualty manager claims *40 court have observed this preme Court and prior year career thirty-one over a ployers employer hired a showing an evidence that Transport,45 his for AI to starting work to plaintiff over applicant the qualified less com- employer per years average of 5.16 employ the probative of whether may be four of favorably with each the pares promoting for not proffered reason er’s per years 2.75 of (average Jones men: Alexander pretextual.” plaintiff was [the] years 4+ (average of Sevillian employer), Ga., 1303, 1340 207 F.3d Fulton County, 2.86 (average Smith per employer), of. Cir.2000). that, a dispute if I do not (average Wiggins and per employer), years in his was sincere Wogsland finds that jury only Wig- per employer) years of 6 —with job history “recent” Chapman’s that belief per years average of a having better gins unstable, judgment the business then was the was yet, Chapman And employer. jury him the second- protects rule job stability having noted as only one that that asserted conclusion guessing by not hired only one the problems'—and Chap hiring not instability merited job AIGCS. that, because merely I conclude man. with the Defen (agreeing majority Wogsland’s jury could find that reasonable aver dants) these relying on argues that job applicants’ of various the treatment business usurps the Defendants’ ages therefore, and, was inconsistent histories long line of in contravention judgment justification job history that Defendants’ 1361; Damon, See, at e.g., eases. for us to inappropriate pretextual, it was previously As I F.2d at 1501. Alphin, 940 jury. of the hands take this case out discussed, misapplies argument Williams, (reversing F.2d at 975 Cf. De by protecting rule judgment business employer where new to grant of trial credibili attacks on their against fendants pro its formal to employer’s “adherence Elrod, Where F.2d at 1470. ty. See and arbi policy inconsistent was motional concerned that it was employer inconsistency asserts “[t]his at best” trary stability applicant, of an job to resort supports conclusion history pretext for have was applicants requirement that other examination fact for penalized plaintiff] unfavorable instability singling [the were not out job but treatment.”). a lack of to history demonstrate tends at 1501— F.2d Alphin, 940 credibility. evidence, any- is no Additionally, Cf. there rule judgment business (discussing where, or Turn- to indicate judgment grant of reversing instability to Chapman’s job judged quist evi employee employer where or Smith’s. than either Jones’s worse be compe that he tending compari- show Indeed, any only dence evidence similarly situated any work and of the candidates in his tent made between son “felt favorable that he received more statement Turnquist’s employees [Wig- treatment). Thus, showing Graham merely had more while confidence [he] his work presented way in the is not was mistaken gins] attempt Thus, Defendants’ history.”46 the Su- pretext, “both to show sufficient (unexplained at sum- decision to their any limited evidence they never cite position, but Sevillian, Jones, Chapman for to consider mary judgment) Chapman to comparing Sevillian, Jones, referencing given to positions evidence Smith —or even below, Sevillian, Jones, experience or and Smith’s this discriminato- Smith. As discussed (Stmt, Undisputed treatment, history. did not job See R8-82 which Defendants ry 17-18, ¶ Facts) Accordingly, if we nondiscriminatory justifi- any legitimate, offer arguments not consider justifies should summary judgment, itself cation stability demon- appeal about the lack remanding reversing summary Smith, Sevillian, Jones, we strated trial. arguments to consider should also not namely, any R7-79, responding: E at 2-4. which Ex. Jones, Sevillian, Defendants claims fact, quote, in Turnquist Dep. at 79. This superior any way equal and Smith history Wiggins' job Rather, not even does state should be Defendants Chapman. protect the judgment” Wogs- “business having any recall concerns about the *41 land Turnquist and of stability assumes that a busi- of prior Smith’s employment his- made, ie., ness judgment tory, despite has been that the fact that he had worked Wogsland Turnquist employers more actually than viewed over a Chapman’s job shorter career than history Chapman. to be than As for worse Wogsland, there is no applicants. his fellow It evidence in the that sum- assumes mary judgment record about Wogsland his Turnquist beliefs believed that regarding stability of applicant’s .an or, Overall entire history career was irrelevant at career.49 With no evidence in least, the sum- important less than recent job histo- mary judgment explaining why record ry. Yet there is no evidence indicate Wogsland and Turnquist apparently ig- they that agree position with that ap- or nored weaknesses Smith’s and plied init evaluating applicants. To employment Jones’s histories —or even the contrary, Turnquist testified he stating had considered their em- looked to the “entire work history” of a ployment histories50—there has been no candidate47 that his concerns were judgment” and, “business demonstrated “not necessarily” focused on the timeframe thus, business rule should between employment by Home justify be used to grant of Insurance employment and his by AI judgment. but, Transport instead, that he looked at Chapman’s entire career.48 state- Those if we Even credit the reasoning of the ments notwithstanding, Turnquist could Defendants and a period use of thirteen but, was more Chapman's favorable than was portion 48. The relevant Turnquist’s deposi- of instead, addresses presenta- the manner of tion states: tion. Q. your Is it true that concerns about Mr. Chapman's stability in experi- his work portion 47.The relevant deposition ence center on time between his reads: employment at the Home Insurance employment and his at asking You are the AIAC? me to characterize the sta- A. necessarily just Not bility [Chapman's] that time prior employ- John's frame. Q. What by asking ment other —what else about each individual em- ployment background company he raises a has concern worked at. When I stability? about his stability evaluate the applicant an I A. The fact that don’t look at he has company. one been with I at seven look their companies. history different entire work I’d have group. as a The count fact companies again just John but there worked for Home Insurance quite seemed to be Company years very compa- for 16 number of is commend- One, two, nies that he three, four, five, able had stability. and it been with. shows The fact that Transport Transport he worked six—AI for AI be- commend- ing the able and seventh. it some shows stability. But if Q. career, you And year this is over look entire history cor- rect? applicant you have I believe its seven jobs A. Yes ma’am. history. Many entire work ap- Turnquist Dep. added). plicants (emphasis that we interview have multi em- ployers many but as not question seven it is unsurprising It is summary judg- that the a naturfal] to wonder and to ask ment record showing lacks evidence applicant an why you job had these various Wogsland job history believed Smith’s changes over be your the course claims or irrelevant, Wogsland admitted at trial that insurance ques- career. So to your answer job history Smith's nega- have "would been a tion the years four Transport tenure at AI tive.” R22-218. helpful. It appear would if John found a there home and he had been with company Indeed, for four and years half deposition Smith stated in his good. which is But to characterize his he Wogsland expressing did recall entire employment history one at a job instability asking concern about why stable, being time as I cannot do that. stayed employers with certain for short Turnquist Dep. added). (emphasis at 116-17 periods of time and that he did not remember for the hiring Wiggins purpose of for the AI Trans- hired being prior years casualty manager. claims employ- position of following: four find the we port,51 3.25 sum average record, at the time that an as it' existed Chapman for ers for (over employers sev four includes employer; granted, per mary judgment years average for an dispute for Jones years) that tend to eleven evidence pieces of eral employers two employer; per years Turnquist. 2.75 characterization Defendants’ (over for Sevillian years) eight plus identi Defendants summary judgment, At six employer; per years 4+ average of as the fied both *42 2.17 average of for an Smith employers for filling for responsible “who persons employers and two employer; per years Wiggins.52 eventually given position” the per years 6.5 average of for an Wiggins for Turnquist himself Wogsland identified Thus, applicants, five of the employer. in that he relied persons the one of average best the third Chapman to be a Chapman not to hire deciding years thirteen the over per employer years and also stated manager claims casualty Indeed, his by hired AIG. being prior to interview Turnquist’s relied on that he years thirteen over those of 3.25 average that, fact, I also note Chapman.53 In aver- and Jones’s to Smith superior was that forgets that stating in “Plaintiff career or their total either ages decision-maker; Turn- was the Wogsland heYet was sample period. year thirteen opinion to a second merely provided quist having by Defendants rejected still only to Turn- cite Defendants Wogsland,” Thus, stability. even job “recent” worse As Defendants testimony.54 trial quist’s applying theory, applying Defendants’ out, trial such repeatedly point themselves by arbitrarily suggested period time re in our considered testimony cannot be apparently starting point and the them of sum grant court’s the district view of disparate I find still by Wogsland, used testimo trial mary judgment because inconsistencies. treatment and in was, the record necessity, ny consider court reviewed when district Tum- Decisionmaker: 3. motions.55 summary judgment ing the quist repeatedly counsel while Similarly, defense Turnquist role clear what It is not Turnquist’s argument at oral referred hire not to in the decision played merely was that his interview statement positions available any of the interview,” first used Turnquist “screening Turnquist argue Defendants AIGCS. which testimony,56 trial term screening interview merely conducted appeal. in this considered cannot be thus, a decisionmaker and, he was not 1235, Corp., F.2d v. Celotex Welch 55. See concern expressing any Turnquist Cir.1992) of a ("Upon review 1237 n. Dep. at 80-81. history. job Smith Smith's for sum of a motion by a district court grant is a combination suggestion This may 51. appellate court mary judgment, federal by counsel suggested defense period time before which was only the evidence examine brief, of Defendants- En Banc Brief see their latter decided court when the district 6-8, argument, and and at oral Appellees at (cited in En judgment.”) motion Wogsland, by see 19); starting point testified Defendants-Appellees at Brief Banc (looking Dep.) at 134 (Wogsland Telecomms., R7-79-Ex H Communications v. U S West Inc. U.S. East positions stability recent s., Inc., at “lack of Serv (2d ”) (emphasis Transport add- joining AI prior to Cir.1994) to an (“Our is confined review ed). the trial before of the materials examination made, and ruling was time at the court Facts) (Stmt, Undisputed See R6-72 52. subsequently at offered the evidence neither ¶¶ 2-3 at relevant.”) (cited in En the verdict trial nor 20). Defendants-Appellees at Brief Banc Dep.) at 102. (Wogsland H 53. See R7-79-Ex. by de- (cited argument at oral R23-44 Defendants-Appellees 56. See Brief of En 54. See Banc counsel). fense R23-62). (citing at 22 Additionally, Chapman testified that he implicitly recognized at oral argument, is by interviewed first Wogsland and inconsistent with the claim Turnquist then Turnquist.57 While defense coun- was a mere screening interview. sel asserted at oral argument, sup- without In their position statement
port,
must have been “mis- EEOC,61 the Defendants stated: “There
testimony
taken” in this
Turnquist
positions
were three
to be
filled
merely
and,
a “screening interview”
Atlanta AIAC office. Thirty
forty peo-
therefore, must have
interviewed
ple were
positions
interviewed for
first, this assertion assumes that we accept
Ward
(age
White), Vice
Turnquist’s testimony
reject
contra-
President.
employees
Three
were hired
dictory evidence. This conclusion inher-
AI Transport
wpon
based
the quality
ently requires a weighing of the evidence:
their responses to Mr. Turnquist’s ques-
something
permitted
at summary judg-
tions.”
In addition to not mentioning
Howard,
ment. See
32 F.3d at
alleged “job
concerns,
skipping”
addition to
testimony in his
*43
position
puts
statement also
the decision
deposition that he was
by
interviewed
squarely on Turnquist
Wogsland.
—not
Wogsland prior to being
interviewed
discrepancies
Turnquist,
in the
characteriza-
evidence
support
tends to
tions of Turnquist
the
significant
that
are
Turnquist
only
claim
not
was not a mere
because of
light they
the
screening interview. The
tend to cast on
date on both
the
Wogsland
credibility of Wogsland
and
both
Turnquist’s
and Turn-
notes from their
Howard,
quist.
(“[T]he
interviews with
See
Chapman
F.3d at 526
“10/13/92.”58
Thus,
appears
it
identification
that
Wogsland
Turn-
inconsistencies
the
and
de-
quist both
fendant’s
Chapman
testimony
interviewed
pre-
on Octo-
evidence of
13, 1992;
text.”);
ber
Damon,
a fact that
see also
is inconsistent
working for Gaines and on Gaines tween his employment with Home In- work for The Claimsman. Additional- surance and his hiring by AIGCS were ly, as Wogsland and Turnquist’s own sharp concise, and the summary notes from their interviews with Chap- record includes evidence prove, man Chapman specifically told tending to show that Chapman gave them during the that interview he’d reasons for every move that he made. had general liability experience work- Specifically, he left Home Insurance 70.Defendants claim that did not argument, fendants’ brief and accordingly dispute summary judgment at "that some of appeal. immaterial to this his answers were not clear and concise.” En Banc Brief of Defendants-Appellees at 19. (Wogsland R7-79-Ex. H Dep.) at 107-08. only The cite for this remarkable statement is "Supra-8.” foray Id. A brief page to 8 of 72. See Spann Ptf's Ex. 48 Dep. to II at Defendants’ brief shows the disingenuity of D001071-72. First, this claim. page cited of the brief nothing cites to about the clarity or concise- 73. See (Wogsland H Dep.) R7-79-Ex. at 107. Chapman’s ness responses rather, it ad- — length dresses the and Chap- substance of 74. A way argument third that this is flawed is man’s Wogsland interview with and asserts that it Chapman’s assumes that general liabil- that allege failed to ity Claimsman, that he asked experience Gaines, with The questions during his interview. See id. at 8. and B.R. Martin is previ- not "recent.” As worse, Even the support noted, page cited on ously Wogsland ignored period this point this is not the summary judgment from time assessing Chapman's when "recent” but, phase instead, of the case comes from the general liability experience, appar- while he id., and, testimony, trial see as reiterated ently it assessing included Chapman’s when throughout opinion this throughout and De- job "recent” history. Indeed, Wogs- both views with them. then and forced out he because their de- on stated in Turnquist land and for The Claimsman to work began files; Claimsman they left The did not recall he that positions Gaines re- its contractual ceased Gaines answers when substance Claimsman; he The lationship with history.75 job to work by Gaines hired was then offered Chapman has Accordingly, because because files; he left Gaines Gaines did, in he to show that testimony tending Liberty purchased had been Gaines ' specific fact, Turnquist and Wogsland give Company and Instance National Fire he has success- questions, their to answers department its claims moved disputed the substance fully he Birmingham and Atlanta that complaints namely, Turnquist’s the opportunity offered then — to his California, answers provide specific did not B.R. Martin work with con- files; Thus, only remaining B.R. Mar- he left on Gaines again questions.76 impor- were, lost as a B.R. Martin his answers tin because is that tention longer had sufficient and no sharp- tant client form, lacking somehow matter he returned employees; for its work conciseness, ness, aggressiveness. work with began Atlanta reasons, I conclude For three Wogs- of whether Regardless AIGCS. lacking were answers that his contention agree land dispute of form remains a matter as reasons man’s assessment and, thus, has established con- to his they relate (particularly first justification. pretext as to this Gaines) demonstrate work sistent proposi- simple from the reasons flow two that these deny do stability, form of evidence that the best inter- tion during his given reasons were interviews, any in- nullifies Dep.) time of the at (Wogsland H R7-79-Ex. 75. See ex- these 113; Chapman manufactured 107-08; ference also Ptf’s Turnquist Dep. at see litigation or that anticipation of planations in (group- Dep. at Spann II D001071 48 to Ex. his em- seeking the dates of to hide line he was on one and Gaines ing The Claimsman changes. ployment time- in one with B.R. Martin grouping and frame); Dep. Spann 48 to PtPs Ex. see also ap- (Chapman’s 1988 more D000065-D000068 is much disputative evidence This Indeed, trial, resume). Turn- plication conclusory statements than useful may *46 Here, instead, merits, Chap at available it was not field, F.3d at 1565. on the valu something that a show much more it tends to summary judgment, has offered man tending show the to testimony read evidence could likewise and able: reasonable factfinder give questions to Chapman specific did answers the indicating gave that that he notes precise infor changes. provided job and was specific reasons his that he asked Turnquist Wogsland by "the be assessed that opinion mation which could majority asserts While the Dey, Turnquist. the and cites are drawn dissent] [the reasons adequate Chapman (“Although general averments of for those moves that explanations filed, a factu during to create insufficient performance lawsuit gave after the n.10, even when summary judgment interviews," on op. al issue Majority at 1021-22 did, or supervisors of statements corroborated co-workers, that he tend to show *47 phrased? were poorly questions? very Evaded wasn't why clear about gone he had from questions Answered the that were Home to asked but positions several other got before he poor used Transport, phrasing? questions but I Asked and don’t remember the exact questions gave manner, answers.”); acceptable the in exact answers an Turnquist but Dep. at (stating had body posture that he mannerisms or could that not recall seemed these, what information that too "laid Chapman given Any back”? or some com- them, him changes). about his bination Turnquist "nonag- could be deemed Cf. Dep. at (discussing 58-59 gressive.” definition, therefore, Sevillian’s inter- The lack of stating, view and you "I specifi- couldn't tell rendered Chapman the claim that was not cally what and, comments therefore, were made "aggressive” that far unrebuttable le- recall.”). just back. I can’t gally insufficient under Burdine. no evi note that there I also tions.'82 multiple for not considered was applicants, that he Chapman’s claims disputing Wiggins, was dence he, unlike and that positions posit open other for the general qualified “recent” was lacking out for singled ions.83 experience. liability Turnquist’s treatment Wogsland positions multiple Consideration a. for each of with strongly contrasts Chapman applicants, other each Unlike was hired Jones other candidates. the po- only one for considered Chapman was for a Com- Transport by AIGCS AI from posi- manager casualty claims sition: 1993. He in March position Director plex he position, that rejected for Once
tion. in Turnquist Oc- with initially interviewed position. any for other considered was not 45 minutes approximately 1992 for tober it is un- I note that point, primary As a casualty claims for Wogsland with his limited never that disputed only he though even position manager manager claims casualty interest position. Complex Director wanted Wogsland deposition, hisAt position.80 was position Complex Director new After a message written that neither the admitted Thus, Jones. created, hired Turnquist po- any open for applying from positions, for two considered was Jones oral Chapman’s nor with AIGCS sition explicitly he was for which including one that indicated interview his at statements was hired from Sevillian not interested.84 casualty to the limited was his interest in October Transport AIGCS AI Chap- Despite position.81 manager claims He stated manager.85 fast track as a posi- open interest apparent man’s the claims to' application his he limited not consider only did not tions, Wogsland was the he stated which position, manager ca- other than positions for position.86 manager track fast as the same he did but position, manager claims sualty Turn- However, he interviewed when he whether to consider bother not even specifically interviewing not he was quist, posi- open other qualified profession- years as a claims thirty successful Dep.) at 186- (Wogsland I R5-70-Ex. 80. See strong perfor- industry, in the insurance al (testifying 90; Turnquist Dep. at 63 see also degree law appraisals, and mance was interest- he said that Turnquist never school, Chapman was Mr. law manager). accredited casualty claims solely in the ed candidates,” other than these qualified more Smith, Sevillian, Jones, Wig- including Dep.) at (Wogsland 189. I See R5-70-Ex. 81. Facts) (Stmt, Undisputed gins. See R5-70 claim, ¶ this responding at 8-9 Dep.) at 188 (Wogsland I R5-70-Ex. 82. See disputing to materials cited Defendants casualty [Chapman] for the (“I considered Wiggins compared to only as superiority man's through really go didn’t position. I manager manager casualty claims only as to the requirements qualifications versus his ¶ (citing at 17-18 R8-82 at position. See added). I (emphasis positions.”) other 78-79; Dep. Dep. at Turnquist that, consider able to we were if even note 111). even 102-08, only statement did testimony Wogsland’s trial ‘‘re- addresses referring other candidates positions be- the other Chapman for consider experience liability general cent” R22-212-13, —which ''overqualified,” he was cause manag- casualty claims only in relation apparent con- testimony would stand dispute and, accordingly, does position er deposi- admission tradiction qualified he was better claim Chapman for to consider he failed tion Sevillian, posi- Jones, for the Smith than positions. they received. tions no evidence there is unsurprising that It is 116-22; Dep. Dep. at Jones 84. See disputing record summary judgment at 70. claim, trial that Wogsland admitted positions all of the qualified for Chapman was *48 Dep. 51. at Sevillian 85. See I R22-188. See in 1992-93. AIGCS open at that, summary judgment. note 49, 51-52. Dep. Sevillian 86. See more than [his] "[b]ased asserted man for the fast track manager position.87 if asked applicants had stated Turnquist testified he considered Sev- had “recent” general liability illian for casualty posi- experience, claims manager Wogsland testified that “[a]ll tion.88 Accordingly, except Sevillian was consid- for Mr. Wiggins” did.95 Yet it was ered for positions, Wiggins two different who was including given the casualty claims one for he not apply. manager position which did Smith: over Chapman.96 Wogs- applying justified for land AIGCS transfer from Wiggins’ AI lack of “recent” general Transport, liability indicated that experience Smith he was not ground on the that Wiggins interested either the fast track “had manager been working for the same AI representative Transport or claim positions.89 that Mr. Chapman When had.”97 Smith, Wogsland Wogsland explained, interviewed he never indicated how- ever, why he he was considering him for considered Chapman’s either the lack of senior “recent” representative general position liability claims experience or the to be a negative, senior casualty specialist.90 unlike in- with Wiggins, Smith also who equally terviewed Turnquist,91 lacked “recent” general who liability indicated ex- perience deposition precise his that he interviewing same reason as Chapman. Smith for casualty manager position.92 Thus, Smith was considered posi- for three D. Analysis tions, including position one in which he
was specifically not Wiggins: interested. As I have discussed at length, the sum- Wiggins was hired the casualty mary claims record is plagued by a manager position despite telling both large of gaps number and inconsistencies. he result, that was inter- As a a number of disputed material ested in the claims position director and facts exist that weaken prof- Defendants’ that he was specifically not interested in fered nondiscriminatory reasons to such an claims casualty manager position. extent that summary judgment inappro- Wiggins that he was.told could be priate. consid- ered for other claims positions director 1. Arguments Applicable to All Four became available at a later time. Applicants
Thus, Wiggins was considered and hired position for which he had stated he a. history “Recent” job skipping had no interest and also received assur- In considering job history justifica- ances that would he be considered later for tion, I find a number of gaps material a different position.93 record, inconsistencies as well as evidence of disparate First, treatment. b. Lack general “recent” Defendants have never defined the term liability experience “recent,” which vague renders and uncer- Wogsland testified in deposition tain Wogsland Turnquist’s claims that happy was not with Chapman’s state- they rejected Chapman for his “recent” ment that he had “not recent Second, instability. the record indi- general liability experience.”94 When cates that Wogsland selectively applied 87. Dep. See Sevillian at 63. 93. Wiggins Dep. at 67-70.
88. Dep. See Turnquist at 58. 94. See (Wogsland R7-79-Ex. H Dep.) at 107. 89. Dep. See Smith at 79. (Wogsland R7-79-Ex. H Dep.) at 107. 90. See Dep. Smith at 82. 96. See (Wogsland R7-79-Ex. H Dep.) at 107. 91. See Dep. Smith at 81-82. 92. See Turnquist Dep. at 126. (Wogsland R7-79-Ex. H Dep.) at 107. *49 hire to not decision for their reason in “recent” of definitions different two in- applicants’ solely man, the they rested application job Chapman’s evaluating —one as their reason working Turnquist for The with time terviews his included which claims casualty the Gaines, Martin him for Claimsman, refusing and B.R. to hire that timeframe. notwithstand- Eighth, include not position.98 did manager which one that the fact to the disturbing is arguments Particularly counsel’s ing defense selectively definitions in sum- the those different evidence is no contrary, there maximum effect to in order applied indicating that record mary judgment Third, application. Chapman’s damage to rele- about the any beliefs had Wogsland regarding explanations gave Chapman history job entire applicant’s vance Wogs- changes, but neither job of his each stabili- job applicant’s assessing that when rea- explain what could Turnquist nor land ty. ignoring justify (if used any) sons Indeed, Wogs- neither explanations. those Interview “Poor" b. an- what recall could Turnquist nor land job his regarding Chapman gave swers record in the inconsistencies Gaps and job evaluating the Fourth, in changes. like- disparate treatment and evidence over candidates of the various histories rea- interview “poor” undermine wise on which date with the starting frame time First, by Defendants. son in his by AIGCS hired Chapman was gave Chapman that indicates evidence com- employer each years with average of the to both complete answer Wogsland candi- all of the favorably pares de- his by Wogsland specified questions candi- of the to two superior dates liabil- general “recent” As position. Smith). Fifth, Turnquist (Jones and dates that indicates the evidence ity experience, job the entire he considered that admitted position his that Wogsland told in as-’ relevant to be applicants history of general involve not Transport did at AI only tends not This stability. job sessing with on work but that his liability work job insta- “recent” claims negate imme- period during the time files Gaines relevant makes more bility, but by AIGCS hiring diately preceding years average Chapman’s fact liability work. general did involve history com- his entire over each not did Wogsland of whether Regardless the other all of favorably with .candi- pares (a claim response this substance of like the of the is, superior two again, dates by the fact weakened significantly Smith). Sixth, (Jones and candidates gen- “recent” such likewise lacked Wiggins he re- did admission Turnquist’s response was experience), liability eral Smith’s concerns any having call job histo- Chapman’s As to complete. still is evidence history prior had rea- indicates evidence ry, the as com- treatment disparate that occurred moves for each sons (who averaged fewer had pared to Smith whether regardless Again, 1980’s. regard- employer than per years like the did Turnquist Wogsland entire their one considers whether less of (a without claim response substance prior to the timeframe job histories record, neither support 1988). Seventh, when hiring in re- what remember could Turnquist nor state in opportunity Defendants evidence given),99 they were sponse Statement Position EEOC their re- complete provide he did indicates instability was history of “recent” without hypothesis, just that —a (EEOC remains Dep. Posi- to Zaleski Ptf's Ex. Douglas the McDonnell evidentiary value in Stmt., 1) 2.at Attach. tion Burdine, n. at 255 U.S. scheme. hypothesis counsel’s particular, defense n. 9. S.Ct. at loyal- preferred Wogsland and a client loyalty employer over ty to an *50 sponses questions to the job about his fall of 1992 disputed. is There is evidence history. in the summary judgment support- record ing claim that he was the sole decision-
Additionally, Wogsland and Turnquist’s maker, that he was a Chapman’s claims that co-decisionmaker in- interview was with Wogsland, that he important sufficient as a was an matter of form are likewise source First, in of dispute. information on there which Wogsland is no definition of relied, “aggressive” and that he in the record. a screening This renders inter- their vague irrebuttable, claim view. This in dispute important con- both be- travention Second, of Burdine. significant the evi- cause of admissions made dence Chapman did, fact, in answer and because light that completely questions the two specified by this inconsistency sheds Wogsland Wogsland dispute tends the claims as to Turnquist’s credibility. Third, form. Wogsland and Turnquist’s
recall of the interview was lacking so d. Cross-applying Pretext detail and so conclusory description as purely be subjective and, thus, to lack This is one of the rare cases in which it value under Fourth, Burdine. appropriate permit showing pre- and Turnquist’s notes from Chapman’s in- text as to proffered one reason to be con- terviews include no notations regarding sidered evaluating proffered another their perspective on his personality, char- First, reason. the evidence indicates that acter, or performance as an interviewee. reasons, the two history “recent” job Fifth, there is evidence disparate treat- stability “poor interview,” are inter- ment, with Sevillian being despite hired twined. The summary judgment record Turnquist’s perception of Sevillian as not indicates that Wogsland and Turnquist did sufficiently aggressive. not conclude that Chapman per se precluded from the casualty claims manag- c. Disparate Other Treatment position er by virtue of job history. and Inconsistencies Rather, testimony indicates that they In addition disparate treatment to ask Chapman decided about his recent discussed above regarding Defendants’ two job history and were not pleased proffered reasons, the record reflects two answers, with his even though they could other instances disparate treatment. not recall what his answers were.100 In First, Wogsland treated Chapman’s lack of short, the evidence indicates that per- “recent” general liability experience as a ceptions as to the “poor interview” and the negative yet hired Wiggins, who lacked — perceptions as to job “recent” instability “recent” general liability experience for are interrelated. The showing of pretext the exact same reason as Chapman. did as to of the both reasons is partly likewise Indeed, Wogsland did not state that he related. In particular, there has been a even considered that lack to be a negative showing of disparate treatment as to in evaluating Wiggins’ application. Sec- Smith with both the “recent” instabili- ond, unlike the other applicants, Chapman ty “poor reason reason, interview” was considered only position, one de- as well as with separate claim that all spite his unlimited request to be consid- of applicants Smith) (including other ered for any open of the positions. No than Chapman were considered for multi- reason was given at summary judgment ple positions. Second, this is a case for Defendants’ failure to consider which numerous challenges have been man for the open positions. made as to the credibility of the decision- Finally, the role that Turnquist played makers —as to both proffered rea- in the decision not to hire Chapman in the sons. 100. See R7-79-Ex. (Wogsland 107-08; H Dep.) at Turnquist Dep. at 78-79. the form the substance vague that the I conclude Additionally, from the other statements responses and of these elements subjective objective content. no each interviews evaluating justifies
reasons *51 pretext of the of evidence light in reasons e. Conclusion Both reasons. the other to as offered one ele- at least include reasons proffered that sum- conclude I Accordingly, would of “re- In the case vague. ment that as to inappropriate was mary judgment “recent,” term instability, the job cent” because positions the four other each of record, is in the defined never was which to pretext as demonstrated has Chapman had six have we that sufficiently unclear both inde- reasons proffered the each in the suggested of it meanings different together. as considered and pendently counsel, by the and record, by defense that the I would conclude Additionally, beginning (1) period vague some majority: in- “poor of the aspects subjective purely and interviews the time of at the un- not legitimate justification are terview” time that the to at least extending back objec- be cannot they der Burdine because (defense Home Insurance left Chapman conclude I would evaluated. tively (2) vague some argument); at oral counsel under- of evidence amount large the that the 1988 time of at the beginning period credibili- Turnquist’s and Wogsland mining least to extending back at and interviews verity the as to jury question ty creates Insur- Home left Chapman the time reasons, which both proffered of their Chapman’s assessing (Wogsland ance therefore, and, subjective partly at least (3) the years before seven history); job Fi- validity. their credibility for reliant bane en (Defendants' interviews disparate treatment the light nally, (4) inter- the 1992 brief); before years ten to the evaluation Chapman (5) brief); banc (Defendants’ en views interview, treatment the of his history and the 1992 before years to thirteen twelve liability general of “recent” lack of his and en banc (Defendants’ brief interviews Wiggins, to compared experience (6) argument); oral counsel defense him for consider to failure unexplained the Chapman which during period the time conclude I would positions, multiple (Wogsland in Transport atwas AIGCS/AI evidence produced sufficient has Chapman lia- general “recent” assessing Chapman’s isit as to whether question jury to create of the vagueness experience). bility rejection was likely Chapman’s more that the the fact by is exacerbated term than discriminatory animus caused record is that is clear in only thing reasons. different two selectively applied Wogsland the case Chapman. In of it to definitions Sevillian, Jones, to Application justification, interview” “poor of the Smith Wogsland by both used key term points, above addition “ag- was not Chapman positions, four all to are relevant which rec- no’definition With gressive.” judgment was summary I conclude even more ord, characterization failure of the inappropriate such sub- than refutation to susceptible any legitimate, non- offer to Defendants be. usually would characterization jective summary reasons discriminatory reason “poor interview” Additionally, the consider failure their by the subjective purely was rendered than other positions Turn- faulty memories position. manager claims casualty percep- only their recall who could quist, under proceeded have Defendants not the responses tions —and nondiscriminatory fiction useful Thus, while responses themselves. refusal their justify offered reasons “concise,” and “sharp,” like words used casualty hire either inability to recall their “aggressive,” manager position claims likewise apply jury could attribute [employer’s] to their decision not to hire Chapman promote failure to plaintiff] [the positions for the given Jones,101 Sev- race”).103 illian, and is, Smith —but that claim in- deed, a fiction. No reason given III. Conclusion at summary judgment for the failure to As the clear, record makes consider for the posi- judgment was improvidently granted. given tions to AI Transport appli- While I do not disagree with majority Thus, cants.102 even if I agreed with that a jury, reasonable faced the evi- majority analysis its pre- *52 case, dence in this could conclude that the text issue it applies to Wiggins asserted nondiscriminatory reasons were casualty claims manager position, I and, therefore, sincere pretextual, it is
would still conclude
summary
that
judg-
manifest
a
jury
reasonable
ment
could in-
inappropriate
in light of the
stead conclude
fact
that the
reasons
no
were not
nondiscriminatory reason
were,
sincere —that
they
fact,
was ever
a
selecting Jones,
for
mask
Sevillian,
age
for
and Smith
discrimination.
without
In reaching
even con-
this
conclusion,
sidering Chapman
I
their
do
positions.
for
not challenge the employ-
Alexander,
(hold-
See
207 F.3d at
er’s
judgment
business
1342
I do require
—but
ing that where employer
to
the employer
“failed
offer
make a
judg-
business
any legitimate non-discriminatory
ment.
I
reason
deny
do not
the possibility
a
explain
to
why
applicant]
[one
pro-
jury trial could end in a verdict for the
moted over
plaintiff],
[the
a reasonable
defendants —but
doI
conclude that
jury
majority
101.The
treats
that,
ter-
arguable
It is
given Defendants’ ut-
mination for
potential
insubordination as a
ter
summary
failure at
judgment
explain
to
justification for Defendants’
decision to
decision
hire
not to
consider
for the
Jones,
Chapman.
positions
Jones,
given
Sevillian,
instead of
Smith,
addition to
justification
fact that
that summary'
judgment
prof-
was never
should have been
granted
Burdine,
Chapman.
fered at either
summary judgment
ap-
or on
U.S.
450
254,
and, thus,
("Establishment
peal
101
waived,
S.Ct. at 1094
has been
see Cam-
prima
paign
facie case in
Prosperous
effect
pre-
creates
Georgia,
149 F.3d at
for
sumption
1287;
employer
793,
Depree,
unlawfully dis-
946 F.2d at
my search of
against
criminated
the employee. If the trier
the record
plaintiff's
confirms what
counsel
evidence,
fact
plaintiff's
believes the
and if
stated at
argument
oral
questioned
when
employer
is silent in
pre-
the face of the
very point:
about this
there is no evidence in
sumption, the
court must enter
the record tending to
Turnquist
show that
plaintiff
because no issue of fact remains
(who
Jones)
hired
knew about the termination
case.”).
in the
Having alleged
experi-
that his
for insubordination at the time that he hired
ence, education,
performance
evaluations
Jones
relied on that insubor-
Jones,
rendered
qualified
him more
than
Sev-
dination for his decision to hire Jones instead
illian, and Smith
positions
for the
which
Chapman.
Such after-acquired evidence
received, Chapman has established
prima
cannot be used as the basis for Defendants’
case,
has,
which
been disputed.
never
facie
employment decision. See McKennon v.
Co.,
Nashville
352,
Banner Publ'g
513 U.S.
Birmingham
Carmichael v.
Saw
Cf.
359-60,
879, 885,
115 S.Ct.
admonished, “[s]ummary judgment of a litigant depriving weapon,
a lethal used issue, must be caution on the
trial need devoid cases only those
ensure disposed determinations factual v. Celo Tippens summary judgment.” 949, Cir. 952-53 F.2d Corp., 805
tex judge’s func
1986). differently, “the Put evidence weigh the himself is not
tion but matter the truth
and determine genuine is a there whether
to determine Lob Liberty for trial.” Anderson
issue 2505, 106 S.Ct. Inc., 477 U.S. by, case, (1986). In this L.Ed.2d grant of reverse should
we *53 so jury trial for a and remand factfind- unique its may serve jury
that the here, where, as particularly
ing function— parties credibility of interested I must Accordingly, the case. heart of dissent.
respectfully NEAL, his next a minor
Durante al., NEAL, Eugene et
friends;
Plaintiffs-Appellants, EDU- BOARD OF COUNTY
FULTON Superin-
CATION, Stephen Dolinger, Defendants-Appellees. al.,
tendent, et
No. 98-9612. Appeals, Court States
United
Eleventh Circuit. 6, 2000.
Oct. notes of his indication immediate more alleged on focus 254,; I, contradiction Defendants’ further pp. Dep. (Chapman emploj'- 81; Chapman's 78, 80, stability in Mr. 74, 77, Wogsland lack of Exhibits both undisputed that Moreover, background, it is Ill) Chapman ex- Mr. ment p. Dep., for a Wiggins worked Chapman and continued Wogsland Mr. to Mr. plained employers inter- before Gaines of six J. total viewing for Gordon on files to work employ- [AIGCS]. working three different for while Statement Chapman's Response AIGCS’s Insur- Home the time he left ers between is no There as to Which Facts (after joined AI Trans- years) of Material ance 4-6; ¶ Tried contains similar Wogsland to be Issue Genuine (Chapman Aff. port. and 18. 142-45.) paragraphs statements supra Dep., pp. note Motion for Response to AIGCS’s 8.Chapman's toas Facts of Material Statement 9. AIGCS’s Summary Judgment reads follows: Tried, to be Issue is no Genuine There Which legitimate reason offered alleged only The its motion support of filed Wiggins instead selecting by Defendants "Turnquist and that: asserted judgment, subjective Chapman was claimed of Mr. they selected testified that both Wogsland (after Turnquist and opinion get they 'didn’t because Plaintiff Wiggins over Wiggins) Chapman and interviewing Mr. Plaintiff, from' feeling confidence a real feeling of confi- get a real they "didn't presentation' Wiggins made a 'better because Wiggins Chapman; made Mr. from” dence Plaintiff, did Plaintiff than Mr. presentation,” and a "better to their answers concise’ give 'sharp and answers. "sharp give and concise” did not ...” questions. claim Wogsland also Turnquist and follows: response reads stability Chapman's Plaintiff’s about concerned con- dispute but Plaintiff does had held. jobs he "Plaintiff light the number inten- pretext for testimony is value probative tends limited from the Aside ap- discrimination.” Mr. tional opinions their demeanor, sug- record pearance says that sum- opinion dissenting Wogsland's reli- Turnquist's gests that "evidence contains mary judgment record pretext awas "stability” factor ance gave reasons tending to show” It is undis- for intentional discrimination. But had made. that he every move that, although Chapman worked Mr. puted are drawn opinion cites the reasons left time he employers between for three for those moves explanations (after joined years) and Insurance Home
Notes
Notes of time....” for the they applied employer when their his corroborate terview with position Manager Casualty Claims notes, listed those concern. did Notably, in 1992. AIGCS Chap- dates and the employers Chapman’s three he worked for dispute that had not employer. each man left years be- the three employers in different similar sentiments expressed Nor Transport AI joined fore he He stated: deposition. in his worked Wiggins had dispute did he you basically when question years in the ten employer only one why some- look resume and at a look Transport in that joined AI Wiggins before for stabili- you look body left somewhere year. same company stability with a position, in a ty particular within progression and a good his assertions about position left a if have company work on and continued performance not didWe opportunities. growth true, rea- but the may be account Gaines positions between those three that in see hiring for not son AIGCS Compa- [Insurance left Home (cid:127)when he he had of times man the number Transport. ny] and AI specified short in a employers changed (between In- in- leaving Home during the time period of Wogsland asked Transport jobs Chapman to AI and going the various about surance terview appraisals Company 1998), performance Home Insurance between had been Chapman “wasn’t clients he had but number of Transport, AI gone from one why he switched with as very clear involved he may it positions before And while to another.16 Home several
notes
Wogsland's interview
pears from
com-
were
recognized
there
tory, and
although Chapman
affidavit
Chapman’s
history. He
Gaines,
parts of
mendable
working
on files
continued
beyond
concerns went
that his
also indicated
different
he worked
upon which
files
1030
plaintiff
A
is not allowed to
employer
whether the
gave an honest
explanation
employer’s proffered
recast an
of its
nondiscrim
behavior.”
inatory reasons or substitute his business
Sears,
Co.,
Elrod v.
Roebuck &
939 F.2d
judgment
employer.
for that of the
Pro
(11th
1466,
Cir.1991)
(quoting Mech-
vided
proffered
that the
reason
Sears,
is one
nig
Co.,
Roebuck &
864 F.2d
1359,
(7th Cir.1988) (citations
might motivate a reasonable employer, an
omit
ted));
employee must meet that
see also Nix
reason head on
v. WLCYRadio/Rahall
Communications,
it,
1181,
rebut
and the
F.2d
employee cannot
(11th Cir.1984) (An “employer may fire an
by simply
succeed
quarreling with the wis
reason,
employee
good
reason,
for a
a bad
dom of that reason. See Alexander v.
a reason
facts,
based on erroneous
or for
Ga.,
Fulton County,
207 F.3d
all,
no reason at
long
as
as its action is not
(11th Cir.2000) (Title
case) (“[I]t
VII
is not
reason.”);
for a discriminatory
Abel v.
the court’s role
second-guess
the wis
Dubberly,
210 F.3d
1339 n. 5
employer’s
dom of an
decisions
long
as
as
Cir.2000). We “do not
...
second-guess
motivated.”);
the decisions are not racially
business
of employers.”
Combs,
notes argument his interview quist admitted at oral counsel stated defense perceptions Subjective he viewed The Claimsman missing indicate this case. more, job. See substantively the same insufficient employee, without Gaines anof See, e.g., Holi judgment. cannot consider we While R23-81-82. survive
notes the interview may an issue plaintiff create fact, during his explanations these offer allegedly refuting facts that by specifically Also, fact applica- job Chapman's interview. performance claim support employer's resume, personnel his which were in and tion evidence, deficiencies."). I light that file, Spann Dep. at to see Ex. Ptf's regurgi Chapman to require D000065-D000068, see no reason to dates include both went stating that his interview language tate employ- his employed by each of he was when body of great light of the particularly in this dissent. cited in explanations ers and well— per subjective indicating that such evidence, caselaw Thus, which pre-existing relevant. ceptions are not Turnquist at the Wogsland and available given the answers at an interview are notes regarding perspective their Chap- answers themselves. Given evidence man’s personality, performance in- as an Chapman did, fact, that give specific terviewee, Thus, or character. there is no him, answers to questions i.e., asked of evidence supporting Wogsland and Turn- the evidence that he answered with com- quist’s post hoc they rationalizations that pleteness specificity and the questions found any interview to be in general liability his experience and way lacking. In light of the fact that both his recent job history, I would conclude Wogsland Turnquist (years assert now Chapman has sufficiently disputed the later) they rejected Chapman on the contention that his answers sharp- lacked interviews, basis of his this “lacking” is ness, conciseness, or aggressiveness.77 suspicious. present Their claim they This is supported by conclusion my second made no such notes they reason: Wogsland and Turnquist’s merely summarizing the interviews should recollections the interviews were so be assessed the jury. lacking in detail78 as to be purely subjec- objective tive—with no elements that could 5. Other Disparate Treatment (other reasonably disputed be than the At summary judgment, Chapman of- disputed allegations about Chapman’s an- fered evidence tending disparate to show questions swers to general about his liabili- compared treatment as appli- the other ty experience job history). My third cants. In light of the undisputed fact that reason relates to the fact that there is no Chapman’s education contemporaneous performance evidence supporting equal evaluations were Wogsland superior to or Turnquist’s they claims that that of the applicants, found to lack aggressiveness this evidence or disparate have poor otherwise had a treatment gains heightened interview. It undisputed significance. that neither Wogsland Having already nor addressed Turnquist any disparate wrote remarks on their treatment of as to notes from the interviews his history and as to “poor” inter- indicated that Chapman’s view, I will interview focus two other types dispa- lacked aggressiveness79 or was otherwise rate treatment to which Chapman was poor in quality indeed, they made no subjected: he, alone of all of — 77. This reason separate 79.Indeed, differs from the no time in judg- claim, dissent, discussed further in this ment Turnquist record did either Wogsland this is one the rare cases where the estab- any offer "aggressive.” definition of "Aggres- pretext lishment of objective as to justifi- sive,” "recent,” like given many term cations is pretext sufficient to establish as to a interpretations, different and without know- purely subjective justification. ing what definition applied, Chapman was left unable to rebut See, e.g., (Wogsland R7-79-Ex. H Dep.) at allegation. their Did believe that ("Q. 104-05 you Can remember exam- man asked questions? too few ques- Asked ples? comments, Q. specific A. Not quotes. tions, but perceptive, did not ask searching you Can any general remember examples? I questions ones? Asked that were sufficient in am asking you quotes. word-for-word matter, number subject and in No, but which can't.”); A. I id. at 108 ("[Chapman]