Myra J. WALKER, Plaintiff-Appellant, v. NATIONSBANK OF FLORIDA N.A., a Florida Corporation, Defendant-Appellee

24, June telephone conversation, Sefcik COX, Before HATCHETT and Circuit angrily expressed to displeasure Walker her JOHNSON, Judges, and Senior Circuit job performance Walker’s on based Judge. results of the Baymeadows audit Walker, response, branch. sent Sefcik a HATCHETT, Judge: Circuit memorandum in which she characterized Sef- Baymeadows cik’s reaction to the branch’s In this age sex and unfavorable audit as “mental harassment.” appellant, Myra Walker, appeals Jeanette from the granting district court’s of a direct- memorandum, As a result of Walker’s Sef- verdict, pursuant ed to Federal Rules of Civil Sheets, cik Joyce personnel a bank spe- 50, Procedure and the awarding attorney’s cialist, met with July Walker on 1988. At fees. We affirm the directed ruling, verdict session, counseling this Sefcik but attorney’s vacate the ruling. fee Walker with concerns her about Walker’s performance substandard during the first six

FACTS months of and also set a number of performance goals This for Walker case involves to meet in the rela- Walker, tionship (the coming bank), months. Following meeting, NationsBank this and her supervisor, Eugenia immediate Sefcik performance Sef- documented Walker’s de- cik. September, In promoted July ficiencies in a perfor- 1988 written operated 1. The bank three give branches Jackson- The auditors did not branch DuPont ville, Downtown, Baymeadows, Florida: rating Du- overall audit; because was that branch's initial Sefcik, Director, capacity did, Pont. however, in her as they Metro document several defi- responsible Jacksonville, for branches in Tal- ciencies in the DuPont branch’s internal con- lahassee, Orlando, Kissimmee, audit, Reams, South Flori- trols. At the time of the Rebecca da. age forty, female under the was the branch manager. The Downtown branch Walter Doeschler, 2. The audit also uncovered deficiencies in the age forty, managed a male under also Jacksonville, Florida, bank’s other two branches. rating unsatisfactory. received an overall moth- with Walker’s problem Due to a August In an manee evaluation.3 the class. health, not attend did per- Walker er’s memorandum, responded to Walker of Walker’s dispute the extent parties defi- claiming that evaluation formance would be she notify been Sefcik audit had in the branch efforts cited ciencies training course. to attend unable corrected. regularly also held and Sefcik Walker Walker’s terminated Sefcik September meeting on quarterly justifica- scheduled as stated 1988. Sefcik December instructed 1988, during which Sefcik failure Walker’s for the termination tion Nancy employee, a bank to contact Walker attend the inability to notify Sefcik Baymeadows Moore, that- to ensure Walker’s training course and November referrals; for certain credit received branch had she misrepresentations two earlier an- to contact Walker instructed Sefcik also directives. Sefcik’s carried out Murphy, who Marsha employee, other bank concerning questions Walker’s could answer HISTORY PROCEDURAL analysis. account a com- filed January On November, bank conducted Opportu- Employment Equal plaint with Bay- of Walker’s check follow-up, pre-audit (EEOC) alleging that nity Commission more deficien- and found branch meadows sex, in age and her was due termination 28, 1988, and Walker November cies. On 703(a)(1) § of Title VII violation in which Sefcik a conference held Sefcik 255, 1964, as 78 Stat. Act Rights Civil as unsatis- performance again Walker’s rated 2000e-2(a)(l), and amended, § 42 U.S.C. cer- to meet failure factory to Walker’s due in Em- 4(a)(1) Discrimination Age § of the 6, July goals established tain 602, Stat. Act of 1967 ployment (ADEA), unsatisfactory of the meeting. a result As 4, 1990, 623(a)(1). October § On 29 U.S.C. for probation on Walker placed rating, Sefcik issued Office Miami District the EEOC’s period, the bank During this days. thirty no found in which it letter determination satisfactorily or perform required Walker had been termination that Walker’s employ- her termination face immediate that deter- From statutes. violation awith provided Walker also ment. Sefcik EEOC mination, to the appealed Walker at the .implemented changes to be list of Washington, D.C. headquarters In a memorandum Baymeadows branch. 1988, 30, responded Walker dated November 1990, 4, suit Walker filed December On that asserting results follow-up to the audit’s Mid- for the Court States District the United un- was unfair and conclusion the audit’s Wash- The EEOC’s of Florida. dle District founded. a determination issued ington, D.C. office during period that contends in which found The bank on December letter and Walker’s had November between that the bank cause to believe 5, 1988, deter- Sefcik on December dismissal in violation against Walker discriminated a second mis- had made Walker that moved mined VII and ADEA. Title had con- Walker to her: representation on November summary judgment employees, Moore two bank tacted 12, 1991, sought Walker 1991. On December her do Murphy, as Sefcik instructed grounds on complaint amend her leave although meeting, September their her Act Rights entitled that the Civil had that the directive told Sefcik had Walker trial, damages, and compensatory jury to a that Sefcik admits out. Walker been carried her sex connection with damages in punitive allegation she her with the confronted 12, 1992, On June claim. n Murphy as Moore contacted had not motion the bank’s court denied instructed. denying the bank’s summary judgment. motion, summary judgment Walker attend scheduled The bank admissibility EEOC de- assumed on November training class Orlando catego- Improvement" four category; ries; "Needs eight performance in cat- Walker’s rated Sefcik categories. "Unsatisfactory” in three “Expected" in one egories: was rated termination letter and found that CONTENTIONS EEOC’s determination was sufficient to es- Walker contends that the district court’s tablish a factual issue as to whether exclusion of the determination letter on the legitimate, Bank’s non-diseriminatory reason ground that it would jury confuse the was for Walker’s termination pretextual.4 was error, and probative value of the Following this court’s decision in Curtis v. determination letter is not substantially out- Service, Inc., Metro Ambulance weighed by potential prejudice to the (11th Cir.1993), holding that Rights the Civil bank. The bank argues that the EEOC de- Act of 1991 would applied not be retroactive- termination letter properly was excluded be- ly, the district court denied cause its Walker’s motion admission would unduly preju- have defense, complaint. her diced its pursuant amend to rule 403. Walker also contends that the bank’s stat- 8, 1993, April On the bank filed a motion justification ed for her termination pre- in limine supporting and a memorandum textual. She argues that when she was ter- law seeking to exclude the EEOC determina- minated, gave justification Sefcik as a Walk- tion letter on grounds it was un- alleged er’s misrepresentations, and her fail- trustworthy under Federal Rules of Evi- provide ure to Sefcik with advance notice of 803(8)(C), dence unduly prejudicial under inability 30,1988 attend the November Federal Rules of Evidence 403. The district training trial, however, class. At the bank court granted the bank’s motion April contended that those justified two reasons ground on the that the conflicting find- Walker’s termination and Walker’s deficient ings of the two EEOC offices would result in job performance. According Walker, confusion of the jury. issues for the May On explanations difference in the for her termi- 28,1993, the bank filed a motion reconsid- suggests nation that the bank’s stated rea- 12, eration the district court’s June 1992 pretextual, sons were jury and the could have denial of summary judgment bank’s mo- inferred that the real the termi- tion. The court district denied the bank’s gender nation were her age. Walker motion for 17, reconsideration on September buttresses this contention with the fact that 1993. the bank’s Downtown branch also received an unsatisfactory rating; however, October, 1993, the trial commenced. At manager, male, branch who was a not evidence, close of Walker’s the court disciplined. The bank contends that the rec- granted the bank’s Federal Rules of Civil ord is any devoid of direct or circumstantial Procedure 50 motion and judgment entered evidence that the bank terminated Walker’s against Walker aas matter of law. The employment gender due to age. or court district also awarded the bank attor- Lastly, argues ney’s $50,000. in fees excess of court erroneously awarded the bank attor-

ney’s argues fees. She that her lawsuit was frivolous, supports this contention ISSUES undisputed with the fact that the court de- Walker raises the following issues: nied the bank’s judgment two summary mo- committed in error tions, with the summary second denial excluding the letter; EEOC determination judgment occurring twenty-two days prior to (2) whether the grant- district court in erred trial, after the district court had ruled that ing motion; the bank’s rule 50 and wheth- the EEOC letter would not be admitted into er the district court committed error in argues evidence. The bank that Walker’s awarding the attorney’s fees.5 claim was frivolous. 4. At the time the district court ruled on the crimination Supreme claim is foreclosed motion, summary judgment bank had Court's recent in Roadway decision v. Rivers Ex sought exclude to the EEOC determination - letter. Inc., -, press, U.S. S.Ct. 128 (1994). L.Ed.2d Rights Walker’s claim Civil Act of 1991 applied be retroactively should to her sex dis only upon certain evidence will be reversed

DISCUSSION showing Hines clear of abuse of discretion.6 Admissibility Determina- EEOC A. Decks, Inc., 886 F.2d v. Steel Brandon tion Letter (11th Cir.1989). circuit, it In this is well of an deter significance EEOC The are that EEOC determinations established employment discrimination mination letter generally bench trials. Bar admissible in through a re ascertained litigation can be Orange County, field in the overall of the EEOC view of the role Cir.1990) cases), denied, (listing cert. Con statutory Congress enacted. scheme 2263, 114 L.Ed.2d 500 U.S. progeny gress Title VII and enacted (1991).7 fit, however, have We not seen employment opportunities equality of assure admissibility rule to apply the same liberal sex, race, color, religion, regardless jury par trials.8 In determination letters Douglas Corp. origin. McDonnell national ticular, a bench and a the distinction between 1817, 1823, 792, 800, Green, 411 93 S.Ct. U.S. jury may the district court’s' anal trial affect ef To further this 36 L.Ed.2d 668 admissibility ysis of determination letter’s fort, EEOC investi Congress created the of Evidence 403.9 Bar under Federal Rules discrimination, gate civil claims of institute field, F.2d at unions, against employers or actions report, in cer- of an EEOC admission disputes through reconciliation before settle n circumstances, may tain much more permitting party to file a lawsuit. Alexan likely creating present danger Co., der v. Gardner-Denver jury prejudice unfair minds 1017-18, 14 39 L.Ed.2d judge, than in the of the trial who is mind (1974). Nevertheless, responsibility for final vagaries well aware of the limits and dis enforcement of federal administrative determinations better crimination laws is vested the federal assign report appropriate able Alexander, at 415 U.S. courts. ’ weight and no more. Therefore, we remain 1017-18. must Congress, enacting 651; fact that mindful Barfield, also Johnson see stat the various Freight System, v. Yellow utes, provide judi thought “necessary (8th Cir.) (noting that re EEOC dis for the ultimate resolution of cial forum ports products homogenous are not but criminatory the employment claims. It is detail), vary greatly quality and factual availability duty full of of courts to assure the 1041, denied, 525, cert. 469 105 83 U.S. S.Ct. 21, Alexander, n. forum.” 415 U.S. at 60 (1984). L.Ed.2d 413 21. 94 n. The that the district court determined dan- admissibility ger of is that the letter would confuse the

The EEOC substantially jury outweighed probative the committed the broad discretion of court, According the value. '403. district decision to exclude See Fed.R.Evid. Roudebush, hearsay arguing 6. the of the EEOC's Wash- the rule. Chandler v. exclusion letter, parties ington office determination both n. n. 1960-61 argued of the briefed and rules 403 48 L.Ed.2d 416 The district court's Federal Rules of Evidence. the bank's order stated that the court considered challenge 8. Walker instituted suit before Novem- Because however, 803; the next under rule 21, 1991, Rights date the Civil ber effective “applied stated that it rule sentence court Act of her Title VII claim was tried to the probative report's value that the determined court, and ADEAclaim was tried to a her substantially outweighed by danger of was jury. issues, prejudice, or mis- unfair confusion of (Emphasis supplied.) leading fore, jury.” There- relevant, "Although provides: 9. Fed.R.Evid. analyze we the district court’s exclusion probative be excluded if its value is rule the determination letter under 403. by substantially outweighed danger of unfair issues, prejudice, misleading or findings confusion regarding of dis- 7. Administrative claims delay, jury, considerations of undue de novo crimination are admissible in trial time, 803(8)(C), presentation of waste or needless cumu- under Federal Rules Evidence public exception investigatory lative records and file evidence.” court, Montevallo, determination letter’s Cir. admission jury 1991). would force the to resolve the We review all of the evidence in the conflict between the EEOC’s Miami district light to, most favorable and with all reason finding office’s that the bank had not discrim- able inferences of, drawn favor the non- against inated in terminating her em- moving party. MacPherson, 922 F.2d at 770. ployment and the Washington, EEOC’s D.C. If the facts and inferences are so strong and finding office’s that reasonable cause existed overwhelmingly in favor of party one to believe that the bank discriminated court believes that persons could against Walker. The district court was con- not arrive at a contrary verdict, grant cerned that the letter’s admis- determination a directed verdict proper. Verbraeken v. sion would jury’s shift the focus from decid- Westinghouse Corp., Electric case&emdash;whether ing the ultimate issue (11th Cir.1989) (quoting Boeing Co. v. Walker&emdash;to bank discriminated Shipman, 411 F.2d 365 Cir.1969)), cert. resolving the conflicting findings of two ad- dismissed, 493 U.S. ministrative officials who reviewed the same (1990). If, L.Ed.2d 1012 however, substa facts. lntia evidence is opposed to the motion, and this evidence is of quality This presents example one weight that reasonable and fair-minded vagaries of administrative determinations persons in the exercise of impartial judgment which the gov identified: two Barfield might reach conclusions, different the motion ernment officials knowledgeable in the area must Verbraeken, be denied. F.2d at discrimination law reached Nevertheless, a jury question different does conclusions after independently re exist viewing because of presence same facts.- The of a “mere district court properly evidence”; scintilla of rather, concerned that admitting “[t]here must determination letter conflict in would shift jury’s substantial evidence to create away focus jury question.” from the Verbraeken, issue of whether the 881 F.2d at prohibited considered factor in termi nating Walker, and towards resolving ques tions concerning procedural adequacy of proscribes Title VII investigation the two administrative hear on the basis of sex variety in a of employ ing officers conducted. cannot We conclude practices.10 ment proscribes ADEA age the trial court abused its discretion discrimination in the employment persons when it decided that danger of confusing forty least years age. § 29 U.S.C. the issues to jury substantially out seq.11 et Because Walker bears the ultimate

weighed the admittedly probative value of burden of proving age sex was a and/or the EEOC determination: factor in determining the bank’s decision to terminate employment, she must first

.B. Directed Verdict establish a prima facie case of discrimination. Miami, City v. reviewing Carter 578, 870 court’s F.2d 581 of disposition (11th Cir.1989). of a motion verdict, for directed She do through so employ we presentation same standard as the of evidence on one of three ac court used in determining grant cepted whether to methods: direct evidence of discrimi the motion. MacPherson v. University natory intent; evidence; statistical or the of 703(a)(1) Rights Section 4(a)(1) 10. Civil Act of Age 11. .Section of .the Discrimination in provides: 1964 Employment provides: Act of 1967 “It- shall be an unlawful practice “It shall be unlawful for an employer&emdash; employer&emdash; for an (1) discharge (1) any ... to individual, individual or discharge any ... to other- or other- any wise against discriminate to against wise individual any discriminate with individual respect respect terms, conditions, terms, compensation, compensation, with to his to his con- ditions, privileges privileges or employment, of employment, of because of because ” of such ... individual's age.” sex.... individual’s 2000e-2(a). § 42 U.S.C.A. 623(a). § 29 U.S.C.A. 1556 (4) termination, (3) re- and held, position McDonnell out test set four-pronged protect- outside person a 792, placement with 93 Green, S.Ct. U.S. 411 v.

Douglas TechSOUTH, 833 v. her Rollins class. allows ed which 1817, 668 L.Ed.2d Cir.1987). (11th The n. 14 that raises F.2d circumstantial present qualifications dispute Walker’s dis- does not of intentional bank presumption a rebuttable and manager position, This Carter, at 581. F.2d the branch crimination. male; proof. 24-year-old a of her only replaced third method bank concerns case light in the therefore, reviewing princi adapted the circuit has This must, Walker, we as we favorable most of allocation the order ples governing of prima facie case a established she find Title VII arising under in cases proof age discrimination.12 sex Hairston age discrimination. claims Co., 9 F.3d Publishing Sun Gainesville facie prima a established Because Walker Cir.1993). analytical structure (11th Douglas, the burden McDonnell under discrimi of sex-based evaluating a claim legitimate, a articulate to the bank to shifted in Su provided Title VII under nation termi nondiscriminatory for Walker’s reason Doug McDonnell as cases such preme Court legitimate three pressed The bank nation. Green, 93 S.Ct. 411 U.S. Corp. v. las termination. for Walker’s business Dept. Texas L.Ed.2d of Sef- follow certain First, failed to Walker Burdine, 450 Community of Affairs Baymea- a not offer She did directives: cik’s L.Ed.2d U.S. manager- office employee dows branch Stone, (1981). Batey v. Jacksonville, the bank’s position at another Cir.1994). the McDonnell (11th Under Bay- notify branches; a Florida, did she formulation, Douglas/Burdine employ employee branch meadows establishing burden of carry initial must due deferred salary had been increase ee’s sex discrimination. case of prima facie and, not con absenteeism; did she excessive 802, 93 S.Ct. U.S. at Douglas, 411 McDonnell as Murphy Moore employees tact bank plaintiff establishes d at Once during their her instructed ha Sefcik shifts then burden facie prima Second, the meeting. bank September, 1988 “legitimate, some produce the defendant misrepresented Sefcik alleged that Walker the adverse nondiscriminatory reason” had been directives that the above-mentioned Burdine, at 450 U.S. decision. Third, pointed to out. carried the defen Because at 1094. two in the noted were which deficiencies' a nondis prove, only produce, need dant proof as branch Baymeadows audits reason, is “exceed burden criminatory perform adequately failed to that Walker Products Perryman v. Johnson light.” ingly manager. Baymeadows branch as the duties Cir.1983). 1138, 1142 Co., Inc., genuine issue allegations raised These burden carries the the defendant Once discriminated the bank fact as to through prove must production, therefore, bank, Walker; met against the evi preponderance aof presentation v. CLP Reynolds See production. burden discriminatory had a dence Cir.1987). 671, 674 Corp., 812 Burdine, intent. ultimate bur carry the had to then through a fact trier of persuading the den the bank of the evidence prima preponderance employee establishes An her. discriminated intentionally termination of discrimination facie case at 1094- Burdine, at U.S. membership employee shows the when 95. class, for the qualification protected case). Wheth- prima facie of a the establishment that an repeatedly stressed have 12. Our cases is a been established prima case has elements facie of the er overly formulation strict See, e.g., ordinary person inquiry: avoided. an specific is to be Would prima facie fact Miami, City pre- Carter v. if the facts reasonably infer discrimination inability plaintiff’s Cir.1989) (age Carter, unrebutted? remained sented by replaced out- someone that she to show absolute bar protected an class side Supreme recently- Court bound to determine the issues based disparate clarified the Title VII treatment record made in the district court. any In Mary’s framework St. Honor Center v. event, we review the evidence in light - Hicks, -, U.S. 125 most favorable to Therefore, Walker. we L.Ed.2d 407 cases, our earlier assume the following: Walker offered the once the defendant met its produc burden of Baymeadows employee branch the office tion and plaintiffs rebutted the prima facie manager position at another of the bank’s carry could the ultimate branches; Walker notified Baymea- another persuasion burden of either with evidence dows branch employee that the employee’s demonstrating that the defendant was more salary increase had been deferred due to likely than not through motivated a discrimi absenteeism; excessive Walker contacted natory reason or defendant’s nondis employees bank Murphy Moore and as she criminatory reason worthy was not of belief. instructed; had been Walker did not misre- See, e.g., Elsea, Caban-Wheeler v. present to Sefcik that she had carried out (11th Cir.1990). Hicks makes clear that directives; and, Sefeik’s Walker made suffi- the fact-finder’s disbelief of the reasons the cient notify efforts to Sefcik in advance that defendant offers does compel judgment she would be unable attend November - Hicks, plaintiff. for the at-, U.S. training class. Rather, S.Ct. at 2749. once the defendant has met production, burden of The second prong of Walker’s attack on Douglas/Burdine McDonnell framework the bank’s be reasons for her dismiss- irrelevant;' comes inquiry the sole is whether al is attempt mitigate probative successfully carries burden Baymeadows value of the branch’s two unfa- persuading the trier of fact that the defen vorable audits. alleges Walker that Does- dant engaged in intentional discrimination on chler, the bank’s Downtown branch manager, - prohibited Hicks, of a basis factor. who awas male under age forty, U.S.-, 113 S.Ct. at 2747-48. received an audit, unfavorable whose.branch Hicks, however, does not stand for the prop disciplined was not as a of the result unfavor- osition that the rejection fact-finder’s of the able audit. disputes The bank defendant’s reasons proba of no Doeschler was manager of the Downtown tive value in resolving question the ultimate branch at the time of the audit. Our review of whether engaged defendant has record, light most favorable to intentional discrimination. “The fact-finder’s Walker, suggests that Doeschler was the disbelief of the put forward manager the Downtown branch at the time (particularly defendant if disbelief is accom of the audit.13 unfavorable This panied by suspicion of mendacity) may, the bank’s different similarly treatment of together with the prima elements of the facie branch managers situated probative is of val- case,'suffice to show intentional discrimina ue in determining whether the bank inten- - Hicks, tion.” -, 113 S.Ct. at tionally against discriminated Walker. Walker also alleges that bank did not provide her appeal, training In this presents provided which it sev arguments eral the other two support managers of her branch assertion her re- placement, intentionally the bank all of whom were outside the pro- discriminated against her on Nevertheless, tected age the basis of class. and sex. our review of the First, she attacks credibility. light Sefcik’s record in the Re most favorable to Walker solving credibility is, determinations us that convinces prove Walker did not course, beyond the purview of appellate intentionally discriminated Reynolds, courts. 812 F.2d at 675. We are her on the age basis of her or sex. 13. The Downtown manager branch’s office manager. testi- routing The audit listed sheet Does- fied that manager Doeschler was the branch only chler personnel as the Downtown branch Furthermore, time audit. it was the copy who received of that branch’s re- audit policy copy bank’s portion to a send of the sults. dealing audit with each branch to that branch's

1558 frivolous, the was claim Title VII Walker’s produce not did Walker attorney’s the bank awarded court district mendacity suffi of suspicion a raised that maintained that Walker grounds the on fees that record find on this tous permit to cient that clear it became claim after Title VII the against intentionally discriminated bank the and groundless, and unreasonable it was The sex. age of her and/or on the basis her of credibility.” view of any shred “lacked mendacity, but of suspicion a raises record court’s directed the district of affirmance our prevail Walker not allow suspicion will bank, under- can we in favor verdict As the dis ADEA. or the Title VII under find Walker’s inclination court’s the stand “[ojbviously, there is some noted, court trict Nevertheless, unreasonable. VII claim Title Mrs. Sefcik Miss between blood bad attorney’s fees of the award review must we point further court As Walker.” ap- in the established standards against like just didn’t out, Miss Sefcik “[perhaps] ed v. School Sullivan law. See plicable case least, very record At the [Walker].” F.2d County, 773 Pinellas Board rela and Walker’s that Sefcik it clear makes Cir.1985). Walker, 1188 extremely strained. tionship was or age however, demonstrated has aof the discretion It is within deci termination the bank’s motivated sex a attorney’s fees to award court district sion. a VII action in Title defendant prevailing “frivolous, action [is] question finding that “The ultimate a upon - foundation, U.S.-, at 113 even Hicks, unreasonable, S.Ct. or without vel non.” may subjective bad faith.” clashes brought personality though not Serious EEOC, may 434 reality workplace, Co. Christiansburg Garment unwelcome 694, 700, L.Ed.2d conse 54 to unfortunate lead, in this 98 S.Ct. as U.S. as Walker. described such has employees standard been The quences for 648 Rowe, not, without Nevertheless, Hughes do clashes one. “stringent” aas 173, 178, under Title L.Ed.2d 5, 14, for relief more, basis form the U.S. fair- has Moreover, Supreme Court (1980).14 Reasonable ADEA. or the VII criteria, impartial applying in the exercise these that in persons, minded cautioned temptation conclude resist should judgment, would court district either ulti on did not Walker a that because discriminated had conclude therefore have been sex. We age or action must mately prevail, basis of a entry of directed Chris- court’s without foundation. or affirm district unreasonable 421-22, Garment, at the bank. U.S. tiansburg favor verdict Therefore, determining at 700-01. S.Ct. Attorney’s Fees C. is entitled defendant prevailing a whether VII, the district Title under attorney’s fees court’s district Lastly, attacks question of whether focus on must bank as court fees attorney’s award arguable mer lacking in seriously is case Al- Title VII. under defendant prevailing Sullivan, 1189.15 it. See not find did court though the district grounds provides three alternative burg Garment attorney's fees award Hughes involved the court's award support district which § 1983 42 U.S.C. prevailing defendants "frivo- prevailing defendant: attorney's to a fees adopted same standard Court actions. The unreasonable, lous, without foundation.” attorney's fees governs the award which However, in Sulli- at 700. U.S. at actions in Title VII defendants prevailing determining a suit is van, whether "In vie apply- stated: reason for "no could find grounds ques- frivolous, on the focus court must district Hughes, stringent ing standard.” a less arguable lacking in so the case tion whether at 178. founda- groundless or without to be merit as (internal Sullivan, F.2d at 1189 tion....” Sullivan, sponte sua district court 15. In omitted) Texas Tech Jones v. (quoting quotations and invited frivolous plaintiff's suit found Cir.1981)). University, attorney's fees. to seek defendant legal Thus, standard suggests that the Sullivan of attor- award premised the VII of a Title determining the frivolousness maintained finding upon that Walker ney's fees legal stan- is coterminous plaintiff's suit that it clear it became VII suit "after her Title plaintiff’s suit determining dard for Chrislians- groundless.” was unreasonable Although regard determinations tion review. Busby and City Orlando, ing presence any or all of the three Cir.1991) (citing Christiansburg Garment factors are to be O’Neal v. Dekalb County, Georgia, 850 F.2d case-by-case basis, made on a our eases have (11th Cir.1988)). This case merited general identified three factors which should careful review. example, For after the bank guide inquiry: whether the took'issue with allegations, Walker’s the dis- prima case; (2) established a facie trict court on separate two occasions denied settle; defendant offered to and summary bank’s judgment motions. The whether the trial court dismissed the case second twenty-two denial occurred days prior prior to trial held a full-blown trial on the to trial and after the court had decided to Sullivan, merits. 773 F.2d at Apply exclude the EEOC determination letter. ing these standards to this we find that Thus, the court believed that even after the it was an abuse discretion for the district letter, exclusion of the genuine EEOC issue court to attorney’s award the bank fees. of material fact remained as to whether the Although it is clear sup- record bank had .pretextually terminated Walker’s ports the district court’s decision on the mer- employment. Finally, policy consider- claims, its of Walker’s we cannot conclude ation which underlies stringent standard that her suit “patently is so devoid of merit” governing the award of attorney’s fees to support as to a finding that its continued ' prevailing defendants militates against prosecution was Sullivan, unreasonable. See awarding fees this case: “Assessing attor- 773 F.2d at 1189. application Our of Sulli- ney’s fees plaintiffs simply general van’s because three factors the facts of they finally do not prevail this case support our would holding. substantially We note that Walker has add to established a prima inhering risks facie litigation most age both discrimination, and sex would undercut the Congress efforts of district court found no references the rec- promote vigorous enforcement any ord to settlement negotiations between provisions of Title VII.” Christiansburg parties, and that the district court denied Garment, 434 U.S. at 98 S.Ct. at 701. the bank’s summary two judgment motions earlier, As we stated determinations re- proceed allowed case to to trial. garding presence any or all of the Additionally, evidence that Doeschler, three'Christiansburg the bank’s Garment criteria are to Downtown branch manager, who be on case-by-case was male made forty, and under basis. holdWe whose branch also received an that on the facts of unfavorable this case Walker’s contin- audit, was disciplined. prosecution Walker also pre- ued of her Title VII lawsuit can- sented that at some of Sefcik’s not support .least an award of attorney’s fees allegations against her were .unwarranted. against her.

Although the attorney’s award of fees was premised a finding that Walker continued CONCLUSION her Title VII suit after it became clear that it groundless, unreasonable and the dis- Accordingly, judgment of the district trict court “[could not] precise determine a affirmed, court is except insofar as it found point as to when the should have appellant’s prosecution continued of her Title considered discontinuing litigation.” [the] VII claim unreasonable awarded the We have plaintiffs held that a claim should attorney’s fees. The award of attor- not be groundless considered or without ney’s fees favor of the bank is vacated. foundation purpose for the of awarding fees to a prevailing defendant when the claims are AFFIRMED IN PART AND VACATED meritorious enough to receive careful atten- IN PART. was unreasonable or without foundation. make legal More- it inevitable that the standards for the over, policy considerations which Christiansburg underlie three Garment criteria should Christiansburg similar, Garment hesitancy We, Court's substantially if not identical. there- attorney’s award prevailing fore, fees to apply defendants reasoning Sullivan's case. role having its fulfilled presumption, The specially Judge, JOHNSON, Circuit Senior come forward the defendant forcing of

concurring: drops of out simply response, some with Judge of portions concur I production defendant’s The picture. the admis- concern which opinion Hatchett’s effect) having (whatever persuasive its and determination EEOC sibility of proceeds made, of fact the trier been ' however, cannot, I attorneys’ fees. of award whether question: ultimate decide a holding that Judge Hatchett’s concur in- defendant that proven plaintiff has by showing- substan- making a' plaintiff, after be- against [him] tentionally discriminated proffered employer’s that an evidence tial reason. illegitimate an cause of unworthy of are nondiscriminatory reasons Id. of indicia credence, additional offer must has Appellant of the issue jury on that a mendacity to reach It uncontroverted view, dis- my of In facie prima case a discrimination. made intentional prof- height- has improperly holding that NationsBank and Judge Hatchett’s crimination Appel- for nondiscriminatory a must that reasons proof the burden fered ens this Thus, treatment disparate question aon prevail dismissal. lant’s sustain developed properly court the district framework is whether under claim case Green, person 411 U.S. could Corp. v. no Douglas reasonable that concluded McDonnell (1973), intentionally discrimi- 1817, L.Ed.2d that NationsBank 93 S.Ct. find to this Nonetheless, I believe answer The Appellant. because progeny. its nated subsidiary in this issues: evidence on two insufficient rests question there that was that was sufficient person to find evidence Appellant’s a whether unworthy that juror reasons were disbelieve proffered for a reasonable employer’s motivated reached credence, proffered result reasons in-the I concur NationsBank’s was is, Judge oh issue. whether there Cox Judge Hatchett termination —that reasons proffered that evidence sufficient was suffi- if there pretextual were Discussion —and disbelief whether pretext, evidence cient the frame explains, Judge Hatchett As in combina- reasons proffered NationsBa2ik’s Supreme Court by the articulated work is sufficient facie case prima tion Dep’t Douglas Texas Com McDonnell on inten- jury, question to create evidence 248,101 Burdine, 450 U.S. munity Affairs discrimination. tional (1981) governs in L.Ed.2d of law judgment as a matter granting under Ti brought cases disparate treatment that found NationsBank, court employee Where the ADEA. tle VII rea- performance-related discrimination, “assuming [the facie case of prima makes pretex- are] by NationsBank sons arises. St presumption —— some evidence tual, have to have U.S.-, you still Hicks, Mary’s Ctr. Honor bearing on some age gender had 407 that L.Ed.2d -, employee.” to terminate produc decision burden The intermediate that, if even Nations- reasoned district employer to to the articulate then shifts tion reasons it offered its when Bank lied non-discriminatory explanation legitimate, termination, be- motivation Appellant’s Id. Where decision. likely to have been equally the lie hind articulat burden of employer meets his illicit animosity as to conceal reason, personal nondiscriminatory conceal legitimate, ing a adopts the Judge Hatchett discrimination. Douglas framework —with McDonnell “the thus, and, never reasoning court’s longer no and burdens —is presumptions has Appellant — directly at-, addresses Hicks, relevant.” pretext.1 shown otherwise, his opinion. If it were his actually states derstand never Although Judge Hatchett of a factfinder's probative value discussion for a presented sufficient Appellant proffered reasons employer's rejection of an disbelieve NationsBank's factfinder entirely superfluous. would- be way un- reasons, any other I discern cannot A. Intentional only Discrimination view. The Court held that where Proof of plaintiff relies solely on evidence that Judge only As Hatchett focuses on the proffered by false, issue, are begin my I second discussion there. retains the burden of persuading Judge implicitly Hatchett holds the factfinder that the pretext false prof- in reasons prima of combination with a facie pretext fered are a illegitimate case is not sufficient discrimi- evidence of discrimina- natory -, motives. tion to Id. at jury. reach the I believe 113 S.Ct. at that this However, 2752. holding by is belied the Court explicit rejected the also statement in the pretext-plus upon rejection position. Hicks that of See defendant’s Anderson v. Bax- reasons, proffered ter Corp., “no Healthcare proof additional of F.3d 1123-24 — (7th Cir.1994) required.” discrimination is (explaining U.S. at holding). Hicks’ -, at S.Ct. The Hicks Court explained that: Hicks, Prior to federal circuit courts were The factfinder’s disbelief of the reasons divided about the finding effect of a that the put by forward the defendant (particularly employer’s explanation was false. In what if accompanied disbelief is by suspicion of view, was dubbed “pretext-only” the the ma- mendacity) may, together with the ele- jority of circuits showing held that a prima ments of the facie suffice to employer’s proffered explanation was false show Thus, intentional discrimination. re- judgment mandated plaintiff. for the See jection the proffered reasons of defendant’s —Hicks, at-, U.S. 113 S.Ct. at 2750 ivill permit the trier the of fact infer cases).2 (cataloguing contrast, In “pretext- ultimate intentional discrimina- fact of plus” circuits held that to prevail, plain- the tion, and the Appeals Court was correct of tiff must offer evidence of in that, when it upon noted rejection, such pretext, addition plaintiff if a “[njo proof additional discrimination is of could do no than more employ- show the required.” proffered er’s reasons unworthy were of cre- —Hicks, at-, U.S. at 2749 dence, S.Ct. judgment for the employer was man- added). (emphasis In this ground middle Id. dated. between the pretext-plus and pretext-only Hicks Supreme the Court with positions, Hicks leaves whether, unresolved an opportunity to resolve this circuit split. plaintiff where the supplied has sufficient trial, At the conclusion of a bench jury evidence for a to disbelieve the reasons entered judgment Hicks in favor of proffered by the employer, judge may find employer despite by evidence offered as a of matter law that the evidence is insuf- plaintiff that the reasons proffered by the ficient jury discrimi- infer employer were the basis plaintiffs for the natory intent. Mary’s Ctr., dismissal. Hicks v. St. Honor F.Supp. (E.D.Mo.1991). inAs A of review cases decided after Hicks illus us, the case before the district court inter- trates the uncertainty that gener Hicks has posed explanation its own Hicks’ dismiss- ated the lower federal courts. exam For al, implicitly finding that the dismissal was ple, courts have over propriety divided of product personal animus between granting summary judgment there where is —Hicks, Hicks and employer. his See U.S. genuine issue regarding of fact truth at-, at (citing 756 F.Supp. legitimate proffered by reasons the em 1252). Applying pretext-only view, ployer. Compare Smith v. Comput Stratus Eighth Circuit reversed. Hicks v. St. er, (1st Inc., Cir.1994) (though Ctr., Mary’s Honor 970 492-93 plaintiff genuine created issue fact — Cir.1992), rev’d, -, U.S. question employer’s of whether (1993). 125 L.Ed.2d 407 pretextual, were judgment summary Circuit, reversing Eighth for employer appropriate Su- where court finds preme clearly rejected Court pretext- juror that no reasonable could infer discrimi- Lanctot, generally 2. See Catherine J. Employment ne Plus” "Pretext Rule Discrimi- Defen- Cases, dant Lies and Fallacy Loses: The Hastings nation L.J. 71-97 Plaintiff plaintiff.” 32 for the judgment to base cert. pretext), natory intent from — 1958, 131 -, denied, Bio Courtney v. (1995),3with L.Ed.2d 850 Thus, inquiry proper Cir. 414, 424 n. Inc., sound, reasoning in Batey’s and Howard’s whether holding is that 1994) (“implicit [Hicks’] should judgment summary context em doubt on has cast once the judge’s re scope aof to limit extended reasons, issue ployer’s in a sufficiency the evidence view of had discriminated preclud Although circumstances jury trial.5 be determined is to against the necessarily summary judgment do ing court”).4 generally, See jury not the see, law, judgment as a matter preclude Industries, F.Supp. v. SL Waldron Florid Assoc. & Loan Sav. e.g., American (discussing circuit (D.N.J.1994) of 11 996 n. a, Assocs., Regional Ctr. v. Pembroke Lakes split). Cir.1990), (11th 885, Ltd., 888 n. 5 F.2d 908 judgment, this summary of context In the war explains what never Judge Hatchett a view of adopted a narrow has Circuit the plaintiffs of treatment rants differential to be evaluating the inference role in court’s Contrary to two contexts. in these burden v. Howard pretext. of from evidence drawn Hatchett, I by Judge adopted position (11th Cir.1994); Inc., Co., F.3d 520 32 BP Oil Batey underlying reasoning Cir.1994). that the (11th believe Stone, 24 F.3d 1330 Batey v. in the equal force apply with and Howard reversed Batey, this Court 50 motions. of Rule judgment for context summary grant of court’s there suffi- defendant-employer where course, must, make all “reason- Courts disbelieve the factfinder for cient evidence party to the favorable most inferences able for the reasons legitimate reviewing a motion” when to the opposed 24 F.3d employer. by the proffered decision law. matter of as a judgment for motion that, under noted The Court at 1335-36. Inc., 1 Bancorp, Gwinnett v. Button Walls prima facie plus a Hicks, pretext evidence Cir.1993). (11th crucial 1198, 1200 F.3d genuine a issue create sufficient case is Batey underlying our decisions premise and, discrimination regarding intentional fact a is Howard is Id. summary judgment. therefore, preclude improper discriminato- an to infer factfinder Howard, found this Court Similarly, in has employer an from the fact that ry motive prof- employer’s indicating that the evidence 24 F.3d at Batey, false reasons. proffered precluded false legitimate reasons were fered Howard, Accord- 1334-36; at 527. 32 F.3d finder’s “the fact judgment because summary reason- an inference is ingly, because is reasons proffered rejection of defendant’s court, considering motion a able, when upon which evidence circumstantial sufficient reasons), nondiscriminatory 676, proffered Inc., employer's Glaxo, 47 680 F.3d v. also Theard 3. See 116, Inc., Allen, 44 F.3d Materials, Inc., Ethan and E.E.O.C. Cir.1995); (4th v. Friction Woods Cir.1994) ("a finding pretextuality (2nd 120 Cir.1994); (1st 255, 3 Bodenheim 260 n. F.3d 30 reject juror a defendant's a allows (5th 955, Inc., n. 8 F.3d 959 5 PPG er v. Indus. challenged employment action for a reasons Cir.1993). discrimi ultimate inference of permits the thus nation”), Fin. Commercial v. ITT and Gaworski Higgens, 45 F.3d & Sempier v. Johnson also 4. See Cir.) ("if (1) (8th 1104, 1109 Corp., 17 F.3d denied, - U.S. Cir.1995), (3rd cert. 730-31 present, and are prima facie elements of - - (1995); -, L.Ed.2d for a reason evidence exists sufficient there 1124; Anderson, Washington v. Gar 13 F.3d proffered rea reject jury the defendant's able Cir.1993). (9th rett, 10 F.3d actions, evidence sufficient then sons for intention whether jury to determine to allow denied, occurred”), split whether courts have cert. circuit 5. Other has al discrimination (1994); pretext U.S. -, solely relying on evidence L.Ed.2d plaintiff Bancshares, necessarily provided prove has v. Boatmen's discrimination Nelson Cir.1994) (“evidence (8th discred granting a Rule preclude evidence F.3d iting sufficient explana nondiscriminatory Compare employer's Barbour the defendant. 50 motion (a jury (D.C.Cir.1995) necessarily for a Merrill, sufficient” is not tion discrimination), Oil v. Guiberson and Rhodes support a evidence to find Tools, presents sufficient Cir.1994) (same), 541-44 establishing prima case and facie by verdict Cir.1995). granted, F.3d 127 reh’g en banc to discredit introducing sufficient judgment draw, as matter law in an em- provided jury finds em- ployment ease, ployer’s explanation is bound to unworthy’ of belief.” Manzer v. make inference in favor Diamond party Shamrock Chemicals Co., (6th Cir.1994) (em- opposing the motion. phasis in original). Rhodes, See also Because evidence of invidious discrimina (Garza, at 549-52 Thus, J. dissenting). tion will generally preserved in the jury, reach a need not supply “any employer, files of the determination of an proof additional of discrimination” where the employer’s process mental making an em rejects factfinder employer’s ployment generally decision will be difficult. — reasons, Hicks, at-, 113 S.Ct. at States Postal United Service Bd. Gover “rejection because of the defendant’s Aikens, 711, 716, nors v. 460 U.S. 103 S.Ct. proffered reasons is enough to sustain a find- 1478, 1482, 76 L.Ed.2d 403 To facili — ing Id., of discrimination.” U.S. at- truth-seeking tate the process, 4,n. 113 S.Ct at 2749 n. 4. exceedingly has the light proffer burden of In this the district court and Judge ing and, for its decision Hatchett exceed their proper roles decid thereby, narrowing inquiry. Id. If the ing pretext supports an employer fails truthfully to state the basis for inference of intentional discrimination. Ab employment decision, one reasonable ex sent direct illegitimate bias, evidence of the planation is employer that the attempting is source of an employer’s hostility toward an hide an illegal reason. Furnco Constr. employee is inevitably opaque. Once the Waters, Corp. v. 438 U.S. factfinder employer’s concludes that the prof 2943, 2949-50, 57 L.Ed.2d 957 false, fered reason is it must determine (“[W]hen legitimate all reasons for rejecting whether the employer has lied to hide an applicant an have been possible eliminated as illegal merely an unsavory reason. Shag employer’s actions, reasons the it is more Co., er Upjohn (7th likely than not employer, the gener who Cir,1990). we To determination, make this the ally assume only reason, acts with some factfinder must credibility evaluate the of the based his impermissible decision on an witnesses and weight con of the evidence. race.”) sideration This task peculiarly such is (emphasis province as origi of the nal). jury. Weston, See Castle v. Sangamo See also Hawkins v. Corp., Ceco (11th Cir.1988) (“[as Cir.1989). Though the sessing weight of the evidence and credi proving burden of discriminatory intent rests bility of witnesses is reserved for the trier of plaintiff, with the may a satisfy this fact”). Allen, See also Ethan F.3d at 120 burden directly by “either persuading the (the inference to be drawn from finding that a discriminatory court reason more like that employer’s proffered reason is un ly motivated or indirectly by worthy of credence is “better left jury for the showing that employer’s proffered expla resolve”). As Judge Posner has ex nation is unworthy Burdine, credence.” plained: 450 U.S. at 101 S.Ct. at 1095 If only reason an employer offers for added).6 (emphasis firing employee lie, an is a the inference I do not believe that Hicks disturbs this that the real reason was a forbidden one — precedent. -, U.S. at 113 S.Ct. at age, as may rationally be drawn. Rather, 2751-53. reading better This is the common sense behind the rule Hicks is that it “clarified only effect Douglas. McDonnell It important is employer’s nondiscriminatory explana- understand however that the inference is tion is to convert the inference of discrimina- compelled. not The trier of fact must upon tion based plaintiffs prima facie decide after a trial whether draw case from a mandatory jury one which the inference. concealing lie be a draw, permissive must to a jury may one the reason that is shameful or stupid but not that, 6. Hicks clarified quoted while passage auxiliary er's is an reason to direct evidence for view, suggests Burdine pretext-only from - Hicks, proving -, unlawful intent. U.S. at reading better disproof employ- is that 113 S.Ct. at 2752-53. 1084; Manzer, F.3d at ployment decision. lia- is no event there which proscribed, Authority, 10 Transit Chicago McNabola only that (cid:127)point is bility. The infer- if Cir.1993). F.3d 501 drawn, be can improper motive ence of nu- proffered case, NationsBank In this trial. must there for its reasons performance-related merous added). (emphasis F.2d at Shager, Appel- decision, including that supplied suffi- has who Thus, plaintiff, the directives to follow failed lant person a reasonable cient evidence Sefcik, lied that she Eugenia supervisor, em- proffered reasons disbelieve those having complied about Sefcik jury determination get a entitled ployer, is these that to show In her effort directives. Accordingly, discrimination. issue on the Appellant relies pretextual, are reasons two sufficient provided Appellant if that I believe above— first method described solely on the proposition which pretext evidence rea- that these tending —a to show i.e., evidence assumes —then apparently Judge Hatchett fact. basis in had no sons favor of of law in matter aas judgment however, method, the first Reliance error. Kralman, F.2d at 156 See problematic. that (there fine line between is “a Pretext B. Proof of prof- employer’s challenges the appropriately that however, issue unworthy threshold of credence is, being as There reasons fered Judge merely Hatchett shows nor and evidence neither mistake”). show- Evidence in fact pres- employer made did Appellant resolves: underlying predicate factual ing a juror false ent sufficient un- does reason employer’s that NationsBank’s conclude employer did prove equivocally Be- unworthy of credence. were making the reason in rely the on insufficient there that I believe cause merely Instead, may indicate decision. this juror to reach reasonable for a evidence faith, made acting in good employer, the that court’s conclusion, I affirm would ba- on the employment decision disputed of law on a matter as judgment grant Sears, v. Elrod information. of erroneous sis ground. (11th Co., 1470 F.2d 939 Roebuck that relying evidence plaintiff, A Coater, Cir.1991). v. Roll Lenoir also See unworthy are proffered employer’s Cir.1994) (7th Inc., 1133-34 F.3d an inference for the basis as of credence employ- that established employee (although only discrimination, obviously will intentional an yielded of her conduct investigation er’s if is sufficient there succeed result, show that did not she incorrect the em that to conclude person reasonable mak- rely result in on that not employer did not the basis decision). obviously reasons were proffered ployer’s It is ing employment v. Fuentes decision. dis- employment of federal a violation not Cir.1994); (3rd in Perskie, to err 764-65 an laws for 32 F.3d crimination employee. 1083; v. Illi an performance of Manzer, assessing Kralman F.3d at Co., Sears, 23 F.3d Roebuck Affairs, v. Moore Dep’t Veterans’ nois Cir.1982). — (11th also See U.S.-, denied, n. (7th Cir.), cert. 156-57 Co., 68- 51 F.3d Acme-Evans Russell To L.Ed.2d 313 Cir.1995). Thus, establishing pretext (7th pretext, a showing of satisfy this threshold employ- demonstrating that merely not prof employer’s may discredit plaintiff mistake, employer did that but er made (1) that showing by legitimate reasons fered its behavior.7 honest account give an fact, in no had basis proffered reasons Elrod, F.2d at actually reasons did proffered that us, Appellant failed decision, before that In the motivate a reasonable sufficient adduce the em- motivate were insufficient they employer knew provide evidence variety also accomplish this in may 7. A purported of his at the time false them to be presenting evi- example, a ways. For Carriers, see, Freight reliance, Sparks e.g., v. Pilot predicate facts tending to show dence Cir.1987) (plain- false could underlying reason were factfinder to conclude that NationsBank’s sented a close requiring careful consid- actually reasons did not eration). motivate have evi- Appellant. decision to terminate As unjust dence termination, but she never Judge notes, Hatchett Appellant offered suf came close to showing that NationsBank dis- ficient evidence for a factfinder to conclude criminated her. that she followed Sefcik’s directives. Howev Discretion, by definition, allows the district er, view, my Appellant was unable to take court a range of choices. When this court step. the crucial next She failed to offer reviews a district court for abuse of its dis- sufficient evidence from which cretion, we do not disturb the result absent a juror could infer that genuine Sefcik did not “clear error judgment.” United States ly believe Appellant disobeyed had Kelly, Cir.1989). De- Elrod, lied to her. at 1470. Cf. spite patent lack of evidence of discrimi- Accordingly, I Appellant because believe pre nation, majority contends that the dis- sented insufficient evidence for a reasonable trict court abused its discretion in finding juror to pretext, find I concur the affir- that at point some in the discovery process it mance of the district grant court’s judg should have apparent been that the suit was ment as a matter of law for NationsBank. unreasonable or majority jus- frivolous. The

COX, tifies this Judge, Circuit conclusion concurring what part seems to me a and dissenting part: de novo consideration of appropriateness of the fee award. I find no abuse of discre- agree I majority’s with affirmance of tion. the directed majority verdict. The also cor- rectly states the rule governing the award of reasons, For these I respectfully dissent attorney’s fees, the factors a district court from the vacation of the fee award. should take into account applying when rule, and this court’s abuse-of-discretion

standard of review. I disagree, however, majority’s determination that district court abused its discretion award- ing attorney’s NationsBank fees. FLORIDA MANUFACTURED HOUSING ASSOCIATION, INC., found, Merit, As the district court Homes of and as the Inc., majority points Manufacturing, Inc., out in Jacobsen its discussion of the verdict, Nobility Homes, directed Petitioners, had no gender discrimination. She adduced no tes- timony, example, to sexist remarks. No Henry CISNEROS, Secretary G. evidence was pervasive of a pat- Department United States Housing tern of favoring males at NationsBank. Development, Respondent. Urban Walker offered no other evidence indicating No. 94-2307. that arguably pretextual NationsBank offered pretexts were for pre- United States Appeals, Court of ferring Thus, males over females. this was Eleventh Circuit. not a difficult case in which the June almost, but quite, her evidentiary met Busby Orlando, burden. v. City Cf. 764, 776-82, Cir.1991) (vacat-

ing a fee award because the pre- pretext tiff Schs., demonstrated where she showed that Cir.1994); Mun. complied she employer work rule or, and that disputed reason involve a or, complied); knew she had employ- where the fact improbable a kind that is poor performance ee's for reports is as the basis employer could have been mistaken about it. dismissal, employer’s contemporaneous See, Russell, (conduct e.g., 68-69 satisfactory performance permit will dispute type was of a that it was plausible employer to infer factfinder lying, "honestly could have mistak- but

see, e.g., Sempier Higgens, v. Johnson & enly it). job require believed" did not (3rd Cir.1995), 731-32 and Cole v. Ruidoso

Case Details

Case Name: Myra J. WALKER, Plaintiff-Appellant, v. NATIONSBANK OF FLORIDA N.A., a Florida Corporation, Defendant-Appellee

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 12, 1995

Citation: 53 F.3d 1548

Docket Number: 93-3380, 94-2134

Court Abbreviation: 11th Cir.