Wright v. Southland Corporation

imрort cordingly, we refuse to it into our since I believe our recklessness holding is sufficed, law, case it had not heretofore sufficient dispose appeal. of this CONCLUSION

We conclude in the Eleventh Cir- cuit, a securities fraud plead must particular

scienter with give facts that rise strong to a inference that the defendant severely acted reckless manner. We reject Plaintiffs’ WRIGHT, adopt invitation to James D. Plaintiff- Second Circuit’s motive and opportunity Appellant, analysis; we hold a showing of mere opportunity motive and is insufficient to CORPORATION, SOUTHLAND a for-

plead scienter. hold that in ruling We also eign corporation 12(b)(6) authorized to do propriety on the of such a dismiss- al, Florida, business in the may judicial court take State De- notice of relevant, fendant-Appellee. publicly-filed SEC documents for purpose determining what state- No. 97-3458. ments those contained. documents United Appeals, States Court of law,

Having thus set out the both as to Eleventh Circuit. pleading under the Reform scienter Circuit, Act in judicial this and as to the Sept. notice of SEC documents at the motion to stage, dismiss we remand the case to the

district court for proceedings consistent with opinion.23

VACATED AND REMANDED.

COOK, Senior Judge, District concurring dissenting part: I concur with majority’s holding that, pursuant to the judicial provi- notice company

sion Fed.R.Evid. disclo- sure publicly documents filed with the Se- (SEC)

curities and Exchange Commission may be considered on a Fed.R.Civ.P.

12(b)(6) motion to dismiss. I also concur with the majority on the fundamental issue

presented by appeal, namely that alle-

gations of continue recklessness to meet requirement the scienter under Section 10(b)1 and Rule 10b-5 securities actions after the advent of the PSLRA.

However, I dissent the last issue majority addresses I would not question reach the of whether motive and recklessness satisfies the scienter factor relevant,

23. Plaintiffs' ply Motion to Strike Defendants' Re- Brief would be and therefore ply stage. Brief is denied as moot. We do not ad- Plaintiffs' motion is at this moot respect dress the merits of issue with challenged 78j(b). § attachments to the Re- 1. 15 U.S.C. FL, Swanson, Orlando, Plain- Carol tiff-Appellant. Orlando, FL, for De- Finnigan, M.

John fendant-Appellee. HULL, TJOFLAT, COX

Before Judges. Circuit TJOFLAT, Judge: Circuit that has presents question appeal This for some and commentators baffled courts evidence” constitutes “direct time: What After discrimination? the ques- our on carefully examining cases into framework tion, legal as the as well fit, conclude that cases we which those employment discrimina- evidence of trier of fact from which ‍‌​​​‌‌​​​​‌‌​‌​​​​‌​‌‌​​​‌‌​‌​‌‌‌​​​‌‌‌​​​​‌‌​‌​‍a tion is evidence conclude, on based employ- adverse against the was taken ment action protected personal char- of a on the basis case, district court In this acteristic. of direct definition upon an incorrect relied summary judgment granting defendant; therefore vacate the we for the judgment remand summary grant proceedings based case for further analysis presented herein.

I. manager was the of a Wright D.

James Kissimmee, store 7-11 convenience position held Florida. He he was at which time until charged. Corporation hire, The Southland of who to who to promote, and who to —owner

the 7-11 chain —asserts fired fire, must among persons. discriminate Wright continuing merchandise Permissible bases for discrimination in- words, problems; control a sub- education, clude experience, and refer- portion of stantial the merchandise re- Impermissible ences. bases for discrimi- by Wright’s ceived disappeared store had nation, law, race, under federal include being without for in either accounted sales sex, age. 623; § See 29 42 U.S.C. addition, inventory. or Southland cites 2000e-2(a) (1994). § Thus, U.S.C. in an two “Banking violations of its Awareness employment suit, discrimination key Policy”: discrepancies one based on be- question usually is: what basis did the On deposit tween written records and actual Put way, discriminate? another deposited, amounts and one based on a question is one of causation: What deposit. failure to make a nightly caused the employment adverse action of however, Wright, asserts different ex- plaintiff complains? which the planations for his discharge. Wright The plaintiff means which a can claims that Southland him fired because of prove impermissible discrimination (55 his the time of in discharge), been modified somewhat since the passage Age violation of the in Discrimination Em- of the first (“ADEA”), anti-discrimination Pri- ployment Act 29 laws.1 U.S.C. (1994). 1973, §§ or alternative, 621-34 employment In the discrimination Wright argues that was discharged in cases were tried in the same manner as filing retaliation for his of a claim age Preface, other civil action. Em- Cf. discrimination with Equal Employment ployment Discrimination and Title VII of (“EEOC”) Opportunity Commission short- 1964, Rights Civil Act of 84 Haro. termination, ly before his in violation of 1109, (1971) L.Rev. 1111 (stating that em- section 704 of Title Rights VII the Civil ployment alleging discrimination cases (“Title VII”), Act of 1964 42 U.S.C. parate treatment are “analytically easy,” 2000e-3(a) (1994). § factual”). and “the issues are

Wright filed suit in United States plaintiff had the burden of presenting evi- District Court for the Middle District of dence from which the trier of fact could Florida seeking injunction and an damages conclude, not, more probably than ordering Southland to reinstate him. The defendant-employer took an adverse em- district granted summary court judgment ployment action on the Wright appeals. for Southland. protected of a personal basis characteris- tic. If the carry failed to this

II. burden, then the employer was entitled to Employment discrimination law has be- summary judgment judgment as a mat- come an great area of often need- —and If, ter of law. See Fed.R.CivJP. complexity federal courts. less— in carry- succeeded begin We therefore opinion of our burden, ing this then the trier of fact had by summarizing principles the basic of that to listen to all of the evidence and deter- (in B) law. We then section address the mine whether a personal charac- particular issue raised this case: teristic was the of the cause adverse em- meaning of the “direct evidence” standard ployment action. This traditiоnal method discrimination cases. of trying a case will hereinafter be called the “traditional framework.”

A. suits, Every employment The nature of decision involves dis- how- ever, An employer, crimination. deciding when rendered the traditional framework part applies only discussion in separate by "disparate dress the raised issues cases; "disparate impact” treatment” we do not ad- cases. for easier matters somewhat To make intent fully Congress’ to effect inadequate employment discrimination A workplace discrimination. to eliminate Court, suits, in McDonnell Supreme (unlike, for suit Green, 411 U.S. Corp. v. contract) or breach negligence action (1973), devel- L.Ed.2d 668 S.Ct. position of the difficult puts supplemented— oped presumption mind of the state having to traditional frame- replace but did —the decision. making person Metals Reynolds Grigsby work.2 See Bd. Gov Postal Serv. States See United Cir.1987). F.2d 711, 716, Aikens, ernors If follows: operates as presumption This (1983) 1478, 1482, 76 L.Ed.2d S.Ct. to make use chooses issue). the Further difficulty of (noting ini- he Douglas presumption, McDonnell torts, in which more, other unlike some present to tially does not need from the inferred mind be of can state conclude of fact could the trier from which act, employer’s the of the forbidden doing action taken employment that the adverse solely inferred of mind cannot state improper dis- him was caused against employment fact of the adverse from the Instead, he need estаb- crimination. words, ac in an whereas other action—in (1) an action adverse lish that to intent battery defendant’s tion for the (2) him, qualified he was against was taken solely from may be inferred cause harm (3) question, and job position in for the swinging baseball that he was the fact given to someone treatment was different to employer’s an intent plaintiff, at the per- in the relevant regard bat who differs instance, solely from if a be inferred For cannot characteristic.3 discriminate sonal passed was over discharged alleges an individual he plaintiff that he the fact race, of his job promotion because for personal characteristic. protected awith (1), (2) requirements and re correspond to discrim Douglas involved racial McDonnell requirements general stated spectively, of the holding employment, its subse but ination in (i) (iv) adapt Requirements and text. in the adapted to other forms quently has been (3) requirements general requirement of the Carter v. employment discrimination. See unique text to situation 578, in the the Miami, (11th stated 582 Cir. City F.2d 870 sought by plaintiff re position the Reed, the which discrimination); 1989) Adams (age v. Western Elec. Cir.1978) (sex unfilled. 1283, mains n. 5 1285 567 F.2d Crawford 1300, (5th Cir.1980) (stat Co., 614 F.2d 1315 discrimination). the plaintiff establish that ing that the must what is very statement of is a 3. This broad attempt fill employer "either continued spe- Douglas. The McDonnell under positions the positions or in fact filled type vary upon of discrimina- based cifics whites"). with hiring, (e.g., alleged discrimination in tion Douglas Many early cases McDonnell pro- promotions) and cases) discrimination in (and state that some later (e.g., personal involved tected race, sex). characteristic protected class—for be a member of must Douglas, 411 U.S. above, See McDonnell instance, Doug- quoted McDonnell 13, at 1824 13. In S.Ct. n. at 802 n. 93 plaintiff must that the establish las states itself itself, alleged Douglas McDonnell minority.” belongs Later to a racial "that he of his race. not hired because that he was cases, made clear that Title circumstances, Supreme Under those to certain protections are limited not VII’s plaintiff must establish: Court stated people; for Caucasian classes (ii) (i) minority; belongs against to a racial on the basis that he who is discriminated joba applied qualified for Title VII and was a claim that he his has under race seeking appli- employer was of an African Ameri- equal validity to that for which cants; (iii) that, despite qualifications, against on the basis his can who is discriminated (iv) after his v. Santa Fe Trail rejected; and race. See McDonald he was of his 273, 278-80, open Transp. and 427 U.S. S.Ct. rejection, position remained (1976); 2574, 2578-79, see applicants 49 L.Ed.2d employer to seek continued Airways, 442 [job] qualifi- v. Pan Am. World F.2d complainant's also persons Diaz discrimination). (sex (5th Cir.1971) cations. discrimination, prohibited Age under Requirements at 1824. Id. at VII, slight is a rather Title (ii) (iii) Douglas the ADEA than case McDonnell and (or Douglas reasons) then McDonnell discriminatory under he must reason for the (1) passed establish that he was in fact adverse action. See id. (2) promotion, qualified over for If so, fails to do (3) higher position, for individu plaintiff is entitled to judgment as a mat- given al of different race was the higher If, however, ter of law. See id. the em- Servs., position. See Standard v. A.B.E.L. (a ployer carries its burden burden of Inc., (11th Cir.1998). F.3d production, persuasion), then the If alleges she was fired McDonnell presumption “drops sex, of her then under McDonnell from the Id. point, case.” At this (1) Douglas she must establish that she placed case is back into the traditional (2) fired, fact qualified she was words, framework —in (3) position, her she was replaced by a still bears proving, the burden of (or male that males with qualifica similar not, than took retained). tions were See Lee v. Russell an adverse employment action Educ., County Bd. 773 him on the basis of a personal (11th Cir.1982).4 characteristic. Mary’s See St. Honor Hicks, 502, 506-08, Center v.

Once the established thése (in 2747-48, words, S.Ct. persuaded elements L.Ed.2d 407 the (1993). trier by Douglas pre- fact a McDonnell however, sumption, evidence of these facts: employ- plain- has made the adverse action, qualifications, ment tiffs task plaintiff and somewhat easier: The differential treatment), unlawful now has pre- is evidence of the employer’s discrimination prof- Mortham, sumed. See Walker v. ferred for reasons the adverse employ- (11th Cir.1998). action, F.3d ment attempt The de- and can to show that fendant-employer can rebut presump- profferred these pretext reasons are a for only tion by articulating legitimate, a 516-17, non- See id. at discrimination.5 plaintiff exception must that he summary judgment establish er’s motion for are —the —there years age. is over 40 potentially far many legitimate O’Connor too for reasons conclude, Corp., Consolidated Coin Caterers 308, 312, employee’s the termination to 1307, 1310, above, L.Ed.2d based on the evidence outlined the established, (1996). plaintiff probably 433 er, Once this is howev- was more than not fired Mortham, only prove he need because of race. replaced that he was his See Walker v. (11th Cir.1998). younger, regardless 158 F.3d someone 1183 n. 10 of whether replacement the is over 40. See id. however, Douglas, Under McDonnell once plaintiff presented the has the above (Standard) previous Lee Both and the case employer the is to articulate a lawful requirement plaintiff a list as that the be must instance, reason for its actions. For "protected a of a "pro- member class" or a hypothetical, employer might the claim that group"; requirement tected this stated is in- plaintiff inability the was fired because of his accurate for the reasons discussed in note to work with others. The could then supra. attempt prove proffered explana- to that the instance, pretextual by offering tion was —for instance, imagine 5. For a case which a testimony supervisors, numerous co- from qualified employee African-American is workers, dis- and customers that the had charged job replaced by a from and a Cauca- outstanding interpersonal skills. the plain- If employee suspects sian. The successful, former that he attempt tiff’s is this would to tend race, was fired because of his a files prove hiding the is true early discovery, Furthermore, After some lawsuit. it be- firing plaintiff. reasons for apparent "smoking comes that there is no relating employer’s the evidence to the prof- gun” linking to ra- discharge may termination ferred for the to reason lead discrimination, plaintiff's cial discovery tending of other evidence to prove evidence of discrimination is that he is a All of this new evi- discrimination. ' American, qualified African but was neverthe- with the evidence dence—combined replaced by less qualified fired and a Un- Caucasian. a African American framework, der plaintiff's might traditional replaced who was Caucasian— employ- case would not survive the sufficient create an issue for the to trier sex, reasonably just as of her one “proving (stating S.Ct. was not hired false be- conclude [proffered] reason employer’s (and did not like considerably as- often because the comes sists) proving enterprise wearing, or because greater suit she was dis- was intentional applicant, reason an or that the real was also employer’s son crimination”). to applicant agreed because another salary, or posted for half work required tо the facts establish Note that other than sex reasons number of are presumption the McDonnell crimination. to estab- nor sufficient necessary neither the traditional under

lish Mortham, 1177, 1183n. Walker necessary be- They are framework. Cir.1998). been point This has may be able cause confusion, because of some the source fact that he was despite the to create evidence needed quantum of that he did position, unqualified frame the traditional under jury question in re- person selected not differ of the facts establishment work and the characteris- personal to a gard Doug the McDonnell required to establish imagine a situation tic. For known as the are both presumption las for a manager personnel racist “prima phrase “prima facie case.” employee corporation fires case,” meaning under facie thereafter, Shortly African American. is very framework different traditional replaced, personnel manager the racist Doug meaning under McDonnell from its employee previously terminated and the a case case it means the former las—in American. another African replaced by jury, in the latter go strong enough circumstances, indi- the first Under these of a rebut- the establishment case means have, illegal been a victim vidual would Dept. Texas presumption. See table discrimination, that his re- despite the fact Burdine, 450 U.S. Community Affairs race. was of the same plаcement 1089, 7, 7, n. 67 248, 1094 254 n. 101 S.Ct. Also, needed to establish the elements (1981). L.Ed.2d 207 Douglas presumption, the McDonnell sum, employment in plaintiff an In alone, prove to not sufficient standing are always has the bur- lawsuit discrimination not, probably than plaintiff, more that the demonstrating probably more den As illegal discrimination. a victim was not, an adverse than took (in a sex previously stated we have ba- against him on the employment action case): crimination personal characteristic. of a sis case, employment an discrimination [I]n endeavor, plaintiff in this To assist him facts plaintiff [the can establish if the chooses, attempt establish the if may, he pre- Douglas the McDonnell triggering presumption Douglas McDonnell female, that that is sumption] e.g., she — a to articulate thereby the defendant force defen- position with the applied for she employment lawful reason for the adverse qualified employer, that she dant plaintiff happens, action. Once position and that position, for the framework, but traditional returns to the logical- to a male—it does given piece evidence—the with an additional discrimi- ly follow for the action profferred reason employer’s the basis of plaintiff nated (which may in lead more turn evidence], standing [This her sex. rea- that this profferred such as evidence alone, equipoise— in the evidence puts Alternatively, merely pretextual). son reasonably conclude could although one Doug- may forego McDonnell hired because was not in plaintiff to discrimination was the lows racial fact on whether might not be able otherwise in which he In this cases plaintiff's cause of termination. to do so. Douglas presumption al- way, the McDonnell (11th Cir.1998); simply attempt prove illegal 162 F.3d las and Stan ordinary Servs., Inc., “under the stan dard v. A.B.E.L. 161 F.3d proof.” Clay Printing (11th dards of EEOC v. Cir.1998); see also Trans (4th Cir.1992); 955 F.2d see Airlines, Thurston, World Inc. v. 469 U.S. also O’Connor Consolidated Coin Cater 111, 121, 613, 621-22, 105 S.Ct. 83 L.Ed.2d 308, 310, Corp., ers (1985). words, in 1307, 1309, (1996); 134 L.Ed.2d 433 Ra an employment discrimination suit may Sloss, mirez v. (1) proceed by one of two means: McDon Cir.1980)6 (stating did (2) Douglas, nell or direct evidence.8 As not need to establish the McDonnell Doug analysis II.A should have made presumption las after demonstrating clear, Douglas the McDonnell presump to hire him defendant’s refusal “was merely tion is an evidence-producing likely improper more than not” based on mechanism that can aid the in his discrimination). ultimate task of proving illegal discrimina tion of the evidence. B. Consequently, if “direct evidence” is the proper legal analysis The using alternative to McDonnell Douglas, which, discrimination' as outlined cases— the term necessarily would seem to mean above, fairly complex been further —has prove, evidence sufficient to without bene complicated by the indiscriminate use of fit of the presumption, McDonnell the term “direct evidence.” The result has the defendant’s decision was more been substantial confusion the district probably illegаl than not based on discrim section, courts in our circuit.7 In this we ination. through explain cut this confusion and problem, is that “direct evidence,” in employ- “direct the context of evidence” has a meaning well-established law, ment discrimination means evidence “evidence, in the law of evidence as from which a fact reasonable trier of believed, if proves find, not, existence of fact issue than link causal without inference presumption.” between adverse action (6th ed.1990). protected personal Dictionary Black’s Law characteristic. For in a prosecution, murder importance properly defining “di prosecutor must establish the fact that the repeated rect evidence” arises from our defendant killed the victim. A witness statements that when a has direct who testifies that she saw the defendant discrimination, illegal evidence of he need kill provided the victim has direct evidence make use of the McDonnell fact; if jury of this believes the wit- presumption, conversely, and when he testimony, ness’ then the fact evidence, does not have such direct he is prov- defendant killed the has been required to on the rely Doug McDonnell .victim See, en. presumption. e.g., Bogle opposite las v. Direct evidence is the of Comm’rs, (or “indirect”) evidence, Orange County County Bd. “circumstantial” of Prichard, City among panels 6. v. In Bonner 661 F.2d even of the Eleventh different of 1206, (11th Cir.1981) (en banc), Appeals.”); 1209 this Court of Circuit Hearn v. General 1486, adopted binding precedent F.Supp. court as all deci 927 Elec. 1497-98 (M.D.Ala.1996). of sions the former Fifth Circuit handed down 1, prior to October 8.It is sometimes said that there is a third See, West, 1130, e.g., F.Supp.2d proving discriminatory Dilla v. 4 method of treatment— (M.D.Ala.1998), proof pattern 1137 179 F.3d 1348 "statistical of a of discrimina- aff’d (11th 1999) ("[T]he Am., Inc., Buckley Hospital Corp. Cir. of v. determination tion.” of 1525, (11th Cir.1985). whether the have established 758 F.2d 1529 This hand; direct evidence is some method is not relevant to the case at complicated by question what the fact that the defini we therefore do not address the separate direct tion of what constitutes evidence of whether it is in fact a and distinct shifts, subject frequent proving discriminatory is method of treatment. 1294 improper on an than to discriminate” circum- other of facts or “[evidence

which is Babbitt, F.3d v. existence or nonex- basis. from which the stances Schoenfeld Cir.1999) (citation may (11th be inferred.” fact in issue omit istence hypo- murder Miami, to the Returning Id. at 243. ted); City Carter accord thetical, that she testifies a witness who Cir.1989). (11th This defini F.2d the victim’s home enter the defendant saw essentially a restatement of is tion blood on later with exit three minutes definition; can be if a remark evi- provided circumstantial his hands im admission of interpreted only as an victim; killed the that the defendant dence relevant em in the proper discrimination reasonably infer from jury could decision, or no inference ployment then (combined circumstan- with other evidence finding to reach a is presumption evidence) killed the that the defendant tial Still other improper discrimination. infer, de- victim, reasonably but could also as evidence direct evidence cases define presented on the other pending anof to actions or statements that “relates trial, the vic- found defendant discriminatory or re reflecting a home, his got blood on in her tim dead to the dis correlating taliatory attitude pulse, and left checking for a hands while complained byof crimination retaliation the murderer immediately out of fear Springs v. Three ‍‌​​​‌‌​​​​‌‌​‌​​​​‌​‌‌​​​‌‌​‌​‌‌‌​​​‌‌‌​​​​‌‌​‌​‍employee.” Carter still in the house. Treatment, Residential presented with two are therefore We Cir.1998) (citation (11th omitted); accord “direct possible definitions of evidence” Elsea, F.2d Caban-Wheeler employment discrimination. the law of Cir.1990). is This definition logically is the that follows The first one preponderance essentially the same employment discrim- the structure of (1) definition; a statement namely, evidence from which ination law— (2) decisionmaker), (i.e., by find, by a a reasonable factfinder (3) attitude, discriminatory reflects a a causal discriminatory attitude to the rele ties the ac- employment link between an adverse decision, generally will vant personal characteris- and a tion of fact to evidence for trier be sufficient as the refer this definition tic. We will than not that the conclude second “preponderance” definition. on im decision was based law of from the the traditional definition proper discrimination. if be- namely, evidence evidence— lieved, fact in of a proves existence the stated definitions Regardless of presumption. inference or issue without cases, evidence in these refer definition as We will holdings actual of these cases look at the As discussed “dictionary” definition. rely preponder- they all on the reveals section, point toward all indicators examines This section ance definition. preponderance the definition. adopting holdings. those matter, important initial it is As an evi- would constitute direct clarify what precedent. at Our begin by looking We illegal discrimination under dence of in a have defined “direct evidence” cases discrimina- dictionary Illegal definition. ways. quote cases variety of Some employment that the adverse tion means evidence. dictionary definition of direct plaintiff complains action of which See, v. Board Trustees e.g., Burrell (at impermissi- part) on an least based F.3d Military College, 125 Ga. sex, criterion, race, age. such ble TechSouth, (11th Cir.1997); Rollins Thus, proving illegal relevant evidence Inc., n. F.2d Cir. that demon- 1987). say that direct evi Other cases employer of mind of the strates the state blatant “only the most dence consists decisionmaker) (or, at concretely, remarks, nothing more could be whose intent employment year Taylor Runyon, decision. The Earlier this the time of the (11th Cir.1999), mind 175 F.3d 861 only “eyewitness” to the state of alleged promotion that she was denied a is the decisionmaker the decisionmaker on the basis of her sex. The direct ev- Consequently, himself. testified that the decisionmaker told her under the illegal

idence of promoted that she was not because the testimony would be dictionary definition (and male with whom she competing that he took an from the decisionmaker ultimately position) who received the had a against action employment adverse wife and children and therefore needed the person- on the basis of a money plaintiff. more than the We con- of evi- Any al characteristic.9 other form testimony cluded that this constituted di- requires dence at least one inference to rect evidence of sex discrimination. See reach the conclusion that the has Note, however, id. at 867 & n. 2. how far impermissibly discriminated. testimony was removed from direct turn We now to the cases.10 dictionary evidence under the definition. First, it required the trier of fact to infer a. that the regarding decisionmaker’s beliefs greater the male’s need for income were begin We with cases which we have Then, based on stereotype. a sexual hav- plaintiff presented held that inference, ing made that the trier of fact evidence of discrimination. As we will would then need to inferred that this demonstrate, in each in- case numerous stereotype sexual was the cause of the inferеnces, in- ferences —reasonable but give defendant’s refusal to ferences nonetheless —are promotion. desired These were of course plaintiffs move from the evidence to the inferences; reasonable consequently, upon conclusion that the defendant relied plaintiffs testimony qualified as direct evi- protected personal characteristic in de- dence under the definition. employment ac- ciding to take adverse plaintiff. against Consequently, tion Elsea, In Caban-Wheeler v. relying upon

the cases cannot be a dictio- (11th Cir.1990), Hispanic director nary definition evidence.” Fur- of “direct government program alleged of a local thermore, in each case the that she was terminated of her presented evidence from which a trier of race. held that testi We conclude, fact could than mony said he “needed not, improperly the defendant dis- a black director” constituted direct evi against plaintiff. criminated These dence of discrimination. See strongly support pre- cases therefore at id. 1555. This was direct evidence ponderance evi- It in definition “direct under definition. testimony by dence.” volved someone other than testimony testimony, illegally Corp. 9. Note that from another on this that Y individual (other decisionmaker) X, than the of statements criminated the trier of fact must qualify made the decisionmaker would not infer that the decisionmaker’s statement was imagine For as direct evidence. an accurate reflection of his state of mind brings, against Corp. alleg- that X ing Y lawsuit op- decision—as the time of fired the basis of her that she was sex. post posed, for to an ex demonstra- trial, At one of the decisionmaker’s co-work- serving camouflage tion of machismo as Corp. at that heard the ers Y testifies dismissing X. his true reasons for say, X decisionmaker “I fired because she was a woman.” would be evidence of This direct section, every 10. In we do not discuss the fact that the decisionmaker made the al- discussing are case “direct evidence”—there statement; however, leged merely it would be many we do cover a substantial and —but the fact that the circumstantial evidence of representative portion cases on the employer illegally against X. In discriminated matter. conclude, order for the trier of fact to based Corp. Amer Buckley Hospital It In supra note 9. the decisionmaker. (11th Cir.1985), ica, a F.2d 1525 that the deci- the inference required also hospital alleged director a that supervisor for a black felt need nurse sionmaker’s plaintiffs age. of her reason for the was terminated because was the she alternatively testimony, trier of fact charge; following the held that the We whole, that the decision- have concluded could constituted direct considered as a director but fired maker wanted black that the discrimination: agе evidence of reason, totally plaintiff for a different the upon expressed surprise decisionmaker for a black di- unrelated to his desire of time length the substantial discovering was, testimony plaintiffs rector. had been employees of his that some pre- under the direct evidence that the decision- working hospital, at the employer’s ponderance definition—the temper by a loss of maker once attributed director that he needed a black statement the decision- age, to her that the reasonably fact have led a trier of recruit that he intended to maker stated prob- that the more to conclude nurses, that the doctors and younger ably than not fired hospital felt that the need decisionmaker race. of her id. at 1530. None ed “new blood.”11 See Pipe Lindsey v. American Cast Iron In resembled a state of this evidence even (11th Cir.1985), a case 772 F.2d 799 plain by the decisionmaker ment Caban-Wheeler, plaintiff al similar to age her fired because of tiff was —the promoted not to an leged that he was to first two statements tended of his manager position because assistant ageist certain decisionmaker held plaintiffs testimony that the age. We held stereotypes; the second two statements him, prior told to that the decisionmaker generalized ex ante desire for reflected position, company that the filling none of these state younger employees; fill younger pеrson to looking for particular to the tied these facts ments manager position constituted di assistant evi employment decision at issue. This at evidence of discrimination. Id. rect was, however, circumstan powerful dence Again, testimony would not trier fact tial from which a direct evidence under the dic qualified as that the reasonably could have concluded testimony It involved tionary definition. probably than not decisionmaker more other than the decisionmaker. someone age. her because of fired Also, inference that College, Thompkins v. Morris Brown younger employer’s ex ante desire for (11th Cir.1985), a female F.2d 558 plaintiffs individual was the cause of working high school professor was the trier promotion; failure to receive the her full-time math teacher addition to alternatively fact could have concluded at the defen- professor as a younger wanted a indi change to college. requested dant She position manager in the assistant vidual college, but was part-time status at the promote for entire but did not fired, pur- Ultimately, denied. she was testi ly different reasons. her refusal to cease portedly because of was, however, evidence under mony alleged, working high school. She deci- definition—the however, that both the refusal to move her that he wanted a sionmaker’s statement and the ultimate termi- part-time status manager younger person in the assistant her sex. We held nation were based on fact to could have led a trier of position testimony from the following company reasonably conclude direct evidence of sex plaintiff constituted promote than not failed of the decision- discrimination: one age. because of his products. plasma fresh mean a need for hos- 11. The decisionmaker's reference needing presumably did pital "new blood” testimony reason for a came from someone other than that he saw no makers stated event, job, and that the decisionmaker. In hold a second as the woman to noted, opinion testimony stated once this one of the decisionmakers was another “highly proba- to teach found credible it constituted certain men were allowed that discrimination,” id.; they illegal had families and tive evidence part-time because it the conclusively have. did matter plaintiff did not needs if testimony would be the case the consti- This evidence did not consti- id. 563. dictionary tuted direct evidence under the dictionary the tute direct evidence under Instead, definition. the trier of fact need- testimony came from the definition. reasonable) (imminently ed make the the decisionmakers. plaintiff, not from inference that the Furthermore, decisionmaker’s con- inferences to “slippery slope” cerns about a in the wash- regard reach the desired conclusion: room formed the basis of his refusal to statement, the the trier of fact needed first allow the to work in the wash- to infer that the decisionmaker’s beliefs room. jobs women and second were the about against taken the cause of the actions County In Lee v. Russell Board Edu

plaintiff; regard to the second state- cation, Cir.1982), 684 F.2d 769 three ment, the trier of fact needed to infer both minority public school teachers alleged that the decisionmaker’s assessment of they were terminated the school needs of the versus the needs of board on the basis of their race. heldWe professors based on sexu- certain male presented by plain that the evidence stereotypes stereotypes al and that these tiffs constituted direct evidence of racial against the cause of the actions taken were discrimination. See id. at 774-75. This statements, however, plaintiff. These testimony evidence included that a school yielded the infer- reasonably could have member was concerned get board about ence that the sex motivated the ting greater presence” “white in the decision, employer’s which means that the school, and that the same school board (after perfectly new, case fits with the member later stated white hired) definition of direct evidence—a reasonable pleased teacher was he was However, trier of fact could have concluded more that the new teacher was white. than not that the none of the school board members testified played criminated because of that race a role their decision— contrary, explicitly each denied the her sex. Furthermore, id. at 772. allegation. See Service, Birmingham In Bell v. Linen linking there no evidence the school (11th Cir.1983), 715 F.2d 1552 racial general board’s sentiments to Linen alleged Birmingham Ser- employment decisions at issue. There was position promotion vice denied her a to a racial therefore no direct evidence of dis in the washroom on the basis of her sex. definition; under the crimination held that the decisionmaker’s state- We if holding our in Lee makes sense if allowed into ment that were of direct evidence preponderance definition washroom, want to all women would is used. washroom, enter the was direct evidence of Sloss, Finally, id. at It in Ramirez v. sex discrimination. See (5th Cir.1980), the first case in which opinion unclear whether explicitly that McDonnell by the we held statement was made decisionmaker cases, inapplicable in direct evidence during trial or whether someone else testi- was that he was not hired plaintiff alleged decisionmaker made the fied statement; alienage.12 of his opinion implies the defendant because Refusing ADEA. See Patterson v. McLean Credit to hire an individual on the basis 164, 186, Union, alienage illegal § under 42 U.S.C. of (1994). S.Ct. analyzed 2377-78, (1989). 1981 are Claims under 105 L.Ed.2d manner as claims under Title VII or the same b. for the defen-

Although the decisionmaker discrimination, we held such dant denied held thаt the The cases which we have written of the defendant’s that evidence present direct evi- plaintiff has failed to citizens, hiring only States policy of United do not employment dence of that the decision- combined with evidence that we have undermine the conclusion to the explained policy maker preponderance defini- relying been on the job, constituted di- applied when he for a contrary, evidence. On the tion of direct See id. at rect evidence of discrimination. we have held that each case which holding would be incor- 169 & n. 10. This purported lacking, direct evidence dictionary definition of di- rect under the would have been insuffi- direct evidence improper order to find rect evidence—in support finding cient discrimination, fact needed to the trier of than not was a victim of probably more policy the basis infer that the written employment discrimination. decision was employment on which the instance, in v. A.B.E.L. For Standard preponderance defini- made. Under (11th Services, Inc., 161 F.3d 1318 Cir. tion, however, this would have been a rea- 1998), employee alleged Caucasian inference and thus the evidence sonable race. he was fired because of his The direct evidence of dis- would constitute persons plaintiff contended that various crimination. corporation made in the defendant state sum, an examination our cases reflecting Hispanic ments desire we held thаt the had “direct which statements ‍‌​​​‌‌​​​​‌‌​‌​​​​‌​‌‌​​​‌‌​‌​‌‌‌​​​‌‌‌​​​​‌‌​‌​‍employees, and these improper evidence” of racial constituted direct evidence of dis used in its shows that the term was not crimination. We held that these state as evidence if be- traditional sense ments did not constitute lieved, a fact in proves the existence of they regard were made in to a presumption. without inference or issue department from the one in different McClurg v. & Beach Santa Rosa worked, at least two Golf Inc., Club, F.Supp.2d of the three statements were made (N.D.Fla.1999) (noting that Eleventh Cir- people decisionmaking unconnected to the employment cuit discrimination cases do process, remaining and the statement in the traditional not use “direct evidence” was made before the was hired. sense). Rather, evidentiary are cases evidence would See id. 1330-31. Such a definition of “direct more consistent with not have been for a trier of sufficient which a rea- evidence” as evidence from than fact to find more find, prob- sonable trier of fact could termination was caused not, link ably than a causal between racial discrimination —statements made employment protect- by persons action and a than the decisionmak- adverse value, probative no personal generally ed characteristic.13 ers here, cases, 13. Other tory may proved by not discussed to which motive direct evidence analysis Haynes hiring authority’s racially applies include v. discriminato the same attitudes, Co., (11th 1995); Caye ry regardless evi [the W.C. & 52 F.3d 928 Cir. of whether Community College, relates to the decision at dence] Burns v. Gadsden State Canners, (11th Cir.1990); Beverage v. Al 897 F.2d at 1071 n. 908 F.2d 1512 EEOC issue.” Packaging Corp., (11th would make no sense ton 901 F.2d 920 Cir. 9. Such statement Canners, Inc., 1990); Beverage under definition of direct evi EEOC v. (11th Cir.1990); dence—if the evidence does not relate to the F.2d 1067 Sennello Reserve issue, (11th F.2d 393 Cir. decision at then of necessi Insurance Life Atlanta, 1989); City ty an must be made to reach the Walters v. inference (11th Cir.1986); City Alice conclusion that the decisionmaker made the Wilson ville, Cir.1986); (11th improper basis. 779 F.2d 631 and Miles relevant decision on an sense, 1985). Corp., perfect un v. M.N.C. 750 F.2d 867 Cir. statement makes Beverage particularly definition of direct evi Conners case is in der structive; dence. "[d]iscrimina- there we stated plaintiff probably that the more than not only and the relevant note see infra in by discharged made a decisionmaker was because of his race. statement in time and case was removed both Clark, Inc., In v. Coats & 990 F.2d Clark the em- subject matter contested (11th Cir.1993), plaintiff, fifty- the Consequently, decision. the ployment mill, eight-year-old employee of a thread evidence present failed to direct plaintiff alleged accept early that he was forced to preponderance under the definition. pointed age. retirement because of his He Carraway In v. Bessemer Medical Jones by plant to a statemеnt the tell- manager Center, Cir.1998), the 137 F.3d 1306 im- ing plaintiff the that he had to retire nurse, con- plaintiff, an African-American (The mediately. plaintiff retired later that discharged because of tended that she was day.) We held that this did not constitute in support As evidence of this her race. age evidence of discrimination —this direct contention, the head she testified that merely was evidence that the statement said, girls black nurse had twice “You retired; it in plaintiff involuntarily was no said, sick,” and once “You black make me way involuntary tied that retirement to the id. at away everything.” with girls get Therefore, plaintiffs age. See id. at 1226. n. 10. We held that these statements the trier of fact could not have found that of racial did not constitute direct evidence plaintiff the than not was v. Bessemer discrimination. See Jones age. the of his dismissed on basis Ctr., Carraway Med. Earley Champion In International (11th Cir.1998). proved at most that They (11th Cir.1990), Corp., 907 F.2d 1077 the inappropriate nurse had some head plaintiffs alleged they were fired on attitudes; they came nowhere near racial evidence, their age. the basis of As direct preponderance of the evi- proving by they pointed company to internal docu- plain- race dence that was the cause or birth dates of the listing ages ments noted, we based on discharge. tiffs As addition, they pointed In employees. “can- a trier of fact they, previous employ- fact that unlike not that likely [the not infer it is more than ees, in help company received no from the on an plaintiffs] termination was based finding employment. alternate See id. at illegal discriminatory criterion.” Id. held that this did not constitute We Inc., Georgia, In Evans v. McClain of discrimination, a age direct evidence of (11th Cir.1997), plaintiff F.3d 957 preponderance holding fits with he terminated because of alleged that was at most an proved definition—the evidence allega- of this his race. As direct evidence ages and dif- employees’ awareness of the tion, made pointed to statements post-em- in treatment relation to ferential “a very was assistance; in nothing was ployment there large, very strong, very muscular black the ter- plaintiffs’ relating evidence attempting man” who was to intimidate mination decision. overweight white men.” “three smaller Miami, Finally, City Carter held that these statements Id. at 962. We (11th Cir.1989), al- F.2d 578 evidence, and did not constitute direct account of her leged that she was fired on that the they proved at most rightly so— decisionmaker, speaking in ref- age. The racial differ- employer was aware employee, to another once said erence and other em- ence between want his office run “little old he did not (and suspected ployees like his mother-in-law. We Jewish ladies” man- exploiting this difference some was not direct held that this comment was ner); did not show connection they was not discrimination'—-it and the deci- between such awareness and thus plаintiff, in relation to the made discharge plaintiff. Conse- sion minimally probative of the reason was a trier of fact could not quently, terminated. See id. on the basis of this evidence concluded Supreme holding again creating This fits with the Court the McDonnell addition, evi- preponderance Douglas presumption. definition probative value of the dence—because definition—unlike the dic minimal, it alleged was not tionary statement definition —does not contravene which a trier of fact ground sufficient general evidentiary rule federal could have found discrimination. courts that circumstantial and direct evi Finally, dence are to be treated alike.

c. preponderance definition of direct evidence conclusion, fits better than the definition in cases in which we have principles with other of discrimination improper of held that direct evidence law. 15 lacking, crimination was there was not suf- which a trier of fact

ficient evidence from a. reasonably could have found the de- probably than fendant more not discrimi- II.A, part discussed in supra, As against nated on the basis of a required facts to establish the McDonnell protected personal characteristic.14 Con- Douglas presumption necessary are not to in versely, cases in which we have held establish discrimination under the tradi- improper that direct evidence of discrimi- instance, tional framework. For is both present, nation was therе was sufficient logically practically possible for an such a finding- evidence for the evi- employer to against person discriminate a —but circumstantial, dence was protected personal on the basis of a char- trier of fact to make at least one inference despite person acteristic the fact that the finding. Consequent- to reach the desired replaced by is with someone the same ly, only logical way to understand the example characteristic —as shown concept of “direct evidence” in the law of personnel of the racist manager this circuit is to understand it as evidence Likewise, pos- II.A. such discrimination is reasonably from which a trier of fact could despite person sible the fact that the is not find that the defendant more qualified position.16 for the relevant Nu- than not discriminated people in positions merous America hold protected personal on the basis of a char- they qualified; hap- for which are not acteristic. because, pens employer for

may employee not be aware that unqualified, the employer may have hired employee returning as means of precedent Our own the only is not (despite favor to someone the fact that the ground support preponderance of for the unqualified employee position), definition of direct evidence. for the As discussed subsection, prepondеrance employer may hope the em- defi supported by ployee acquire nition of direct evidence is will in due time the neces- Therefore, sary the intent of Congress enacting qualifications. possi- anti- it is discrimination ‍‌​​​‌‌​​​​‌‌​‌​​​​‌​‌‌​​​‌‌​‌​‌‌‌​​​‌‌‌​​​​‌‌​‌​‍laws and the intent of the ble for an to discriminate on the cases, here, note, however, nary 14. Other not discussed to which definition. We analysis applies arguments pre- the same include Carter v. same would recommend the Treatment, Springs ponderance Three Residential 1998); over definition definition of (11th upon evidentiary Cir. Burrell v. Board Trust "direct evidence” based of Georgia Military College, higher preponderance ees F.3d standard than a of the of (11th Cir.1997); Shelby County Harris v. evidence. Education, (11th Board 99 F.3d 1078 Cir. of 1996); and Trotter v. Board Trustees "qualified” position, 16.An individual is for Alabama, University 91 F.3d 1449 purposes 1996). law, Cir. if he meets the criteria that the specified position. Thornley for the section, Inc., (2d superiority Publ’g, In this we discuss the Penton F.3d Cir. 1997). definition dictio- Douglas presumption. characteristic McDonnell protected personal basis of a not allow the victim Douglas thereby in manner that does McDonnell would to establish the discrimination head; presumption turned on its orn- Douglas presumption. As McDonnell designed help plaintiffs would be clear, where a have made eases system plain- for a that makes a the basis McDonnell cannot establish the more difficult. tiffs task option his presumption, of discrimination. present direct evidence b. only evi- were to mean If direct evidence Supreme Court has stated that without proves dence courts not “treat discrimination dif should inference, then we would presumption or ferently questions other ultimate system created a Aikens, fact.” U.S. opportunity to recover would be denied require we were to non-cir If despite the employment discrimination for prove pro that a cumstantial evidence to prove such discrimina- fact that he could personal characteristic was ba tected (circum- of the by preponderance tion a decision, we sis of an would stantial) evidence. very dif treating question be this factual of this is two-fold. significance ferently questions from other ultimate of First, surely frustrate system a would such general fact. As a rule in the federal em- purpose intent. The of congressional courts, and circumstantial evidence law—as is clear ployment discrimination evi distinguished; are not all relevant of the relevant plain language from the deciding considered in a dence is to be prevent employment deci- statutes —is to States, case. Holland v. United protected personal on certain sions based Cf. 121, 139-40, 127, 137-38, a decision can 75 S.Ct. characteristics. When such U.S. (1954) the evi- proven by preponderance a of (stating be in criminal L.Ed. 150 loses, dence, but the nevertheless cases, circumstantial evidence is “intrinsi intent has been frustrated. congressional cally no different from testimonial evi dence”). true, in This is Second, system a would frustrate such jurisprudence; determin equal protection Prior Douglas. of purpose McDonnell moti given whether a state action was Douglas, employment ing McDonnell fairly straightfor- crimination cases were discriminatory purpose requires aby vated proving had the ward —the task “inquiry an into such circumstantial by preponder- improper may be avail direct evidence of intent as part II.A. supra ance the evidence. See Arlington Heights Village able.” Douglas presumption The McDonnell Metropolitan Corp., Hous. Dev. 429 U.S. the law to make the added to 252, 266, 564, 50 L.Ed.2d 450 97 S.Ct. See id. This court slightly task easier. (1977). why no reason There is rational development of this responded to the has should be employment discrimination law there are presumption by stating that now rule, any exception general an proving employment discrim- two means than direct evidence other definition of (2) (1) Douglas, McDonnell ination: out preponderance definition would carve If we were then to use direct evidence. Aikens, 460 U.S. exception. an such evidence, dictionary definition of direct 3, 103 n. 3. at 714 n. S.Ct. at 1481 would, instances, making in some we than it plaintiffs task more difficult c. McDon- in the absence of would been preponderance definition of direct in the situation Douglas- namely, nell — only logical definition evidence is also prove can discrimina- of other ten- light when considered (circum- preponderance tion law. employment discrimination stantial) ets of evidence, satisfy but cannot II.A, First, supra, outlined needed to establish requirements Meanwhile, deciding ponderance civil of the evidence. framework for traditional (even Doug after McDonnell cases is still Doug- failure to establish the McDonnell ) framework for decid appropriate las the presumption, preponderance las under the As employment discrimination cases. ing only definition of direct means said, the central Supreme Court that the case will be treated like employment discrimination focus words, civil case—in other always whether the case “is present must evidence sufficient to favorably less than treating people some illegal discrimination protected personal others because of’ (but without the benefit of characteristic, Douglas and McDonnell proferred explanation employ- from the presumption pursu one method of er). Therefore, if the has volun- ing inquiry. Corp. Furnco Const. nondiscriminatory teered a reason for the Waters, 567, 577, action, contested the distinc- (internal (1978) quo 57 L.Ed.2d 957 case tion between McDonnell omitted). def tation Use down, and a direct evidence case breaks possi inition of direct evidence creates the question and the of whether the bility plaintiff may that a be excluded from successfully the McDonnell established altogethеr; the traditional framework if a Douglas presumption becomes irrelevant. plaintiff cannot establish the McDonnell contrast, In dictionary under a definition Douglas presumption present and cannot evidence, of direct the rule that the evidence, type then he will certain have Douglas presumption McDonnell becomes opportunity prove no to discrimination. a legitimate, irrelevant once nondiscrimi- definition, contrast, preponderance The natory by reason is volunteered the em- inquiry that the central in an em assures ployer dictionary is senseless. Under the ployment always discrimination suit will be definition, failure to establish the McDon- employer impermissibly whether the has Douglas presumption that nell means the discriminated; preponderance under the plaintiff prove improper must discrimina- definition, plaintiff if the even cannot es tion without the benefit of inferences Douglas presump tablish the McDonnell tion, Therefore, opportunity by ap- he will still have the to the trier of fact. if on attempt prove by pre discrimination peal it became clear that the district court ponderance of the evidence. finding plaintiff erred in had es- pre- Douglas tablished the McDonnell addition, In clear that if law is sumption, appellate then the court would employer legitimate, has articulated required separate inquiry to make a nondiscriminatory reason for the adversе action, plaintiff presented into whether had is irrelevant wheth- plaintiff properly er the has established “direct evidence” of discrimination. This to invoke the elements needed separate inquiry simply need for a does Douglas presumption. McDonnell See employer not fit with the rule that if the Aikens, 460 U.S. at 103 S.Ct. at 1482. a legitimate, has articulated nondiscrimi- words, In employer once the has natory reason for the adverse done what would be of it if the action, it plaintiff is irrelevant whether the properly invoked McDonnell plaintiff properly has established the elements Douglas, Douglas pre- the McDonnell needed to invoke the McDonnell sumption longer is no relevant. Under presumption. preponderance definition of direct evi- Finally, preponderance definition is dence, rule makes sense. consistent with the rule that if a Douglas presumption McDonnell serves prove improper can by discrimination di- only produce to force the cer- evidence, rect the defendant can neverthe- evidence; tain once the has so, prevail by showing less that the same em- done still bears the burden proving illegal pre- ployment decision would have been made with the filing complaint his of a EEOC. discriminatory motive.17 absent both claims below. We address Co.,& Caye Haynes v. W.C. Cir.1995). words, In other A. would decision the same argument court, applying The district dic from discrimination apart made been evidence, tiоnary of direct held definition defense. See an affirmative operates present direct Wright had failed to Hopkins, Price Waterhouse regard evidence 1775, 1788, L.Ed.2d court then his termination. district (1989) An affir opinion).18 (plurality Wright could not make use concluded a defense generally defense is mative Douglas presumption of the McDonnell established, judgment for requires if prove he could not prove if can even defendant replaced by who differed re someone of the evi preponderance gard personal his case to the relevant characteris Southland, Wright’s employer, tic (age); with the understanding fits dence. This introduced unrebutted evi definition of direct .by someone six Wright replaced can discrimi dence—if the Consequently, than he. months older (i.e., by prepon by direct evidence nation employer’s mo granted district court evidence), the defendant derance summary judgment. tion for if it can establish prevail can nevertheless proper definition of Applying action in have taken the same that it would evidence, however, it clear that contrast, discrimination. the absence of that he was Wright had direct evidence of direct definition under age. The terminated because of his two affirmative de the defendant’s responsible for the people at Southland play come into when fense would were Wright to terminate Sharon decision type of a certain presented Tatum, manag Phil the market Powell and evidence, de any other affirmative unlike (respectively) er and field consultant to the law. fense known which,Wright’s store geographical area According Wright, less was located. termination, months before his than three III. want might him that he Sharon Powell told of this case. turn to the facts We now manager a 7-11 store working to cease alleges two Wright, James plaintiff, too old to un may getting he because motivations for his impermissible computer prog possible new derstand the store’s (2) Biggins, (1) or, Paper Hazen Co. alternatively, age, his discharge: Cf. rams.19 cases, particular em- in the showing only was a substantial factor serves In Title VII liability employer; it does that a reasonable ployment of the decision such to limit the liability altogether. of not relieve the See U.S.C. could draw an inference factfinder 2000e-2(m), 2000e5(g)(2)(B) §§ plaintiff's made 'because of’ decision was (1994). employment dis- of areas 109 S.Ct. at Id. at status.” law, showing a is crimination J., (O’Connor, concurring judg- in the complete defense. ment). obviously not the This is Justice O’Con- of direct evidence: definition Waterhouse, Justice We note that in Price of fact is explicitly states that the trier nor upon pre- concurrence relied O'Connor’s expected of discrimi- to "draw an inference” definition of direct evidence. ponderance Instead, defini- Justice O'Connor's nation. that the affirmative concurrence stated presented direct tion states that has would have that the same decision defense reasonably could when a trier of fact evidence absence of discrimination made in the been becomes employment ac- that the contested conclude plaintiff has relevant when the illegiti- discrimination —essential- tion was caused by direct evidence that "show[n] factor in the defini- ly, criterion was a substantial mate restatement Waterhouse, U.S. at Price decision.” tion of direct evidence. J., (O’Connor, concurring S.Ct. at 1804 record that evidence in the 19.There is no goes on judgment). Justice O'Connor with 7-11 Wright actually had difficulties as "evidence suffi- to define "direct evidence” computer programs. illegitimate criterion that an cient to show 604, 610, 1701, 1706, 123 sonably conclude than (“It (1993) not, very age L.Ed.2d essence was the cause of Wright’s termination.21 age employ discrimination for an older ee to be fired because the be This is of say course productivity competence lieves that Wright in fact has valid claim of decline age.”)- with old Around the same discrimination; Southland has substantial time, Phil Tatum allegedly told another support evidence to position its employee Wright Southland was too Wright problems was fired because of re old, and that he was looking younger for lating to merchandise control and account Thus, in managers.20 regard store to both ing procedures.22 Wright’s personnel file decisionmakers, Wright relevant contained attesting numerous documents presented that each thought evidence problems, to these and both Powell and Wright position should not be in his problems Tatum cited these as the reason age. because of his Further Furthermore, Wright’s discharge. for nei more, suggests the evidence that the deci- ther Powell nor Tatum has admitted to sionmakers had this mindset three making discriminatory statements that Wright’s months before discharge, after Wright attributed to Finally, the her/him. nearly years employment. seventeen fact that Wright replaced by an indi jury he, Based on this rea- vidual six months although older than 20.Wright alleges pre- Wright's also that Phil Any Tatum’s the cause of termination. dis decessor, Bishop, Bill made a number criminatory by Bishop intent harbored reflecting statements an intent to terminate question therefore irrelevant to the of South- Wright age. Specifically, because of his Bish- liability land’s under the ADEA. See Holifield op repeatedly Wright told that he wanted to Reno, 115 F.3d 1563-64 Cir. get rid of him because he had been around 1997) (" 'The biases of one who neither makes long, get too and that he younger wanted to challenged nor personnel influences the deci However, person position. into his probative sion are not in an dis Bishop was not involved in the decision to ”) (quoting crimination case.’ Medina-Munoz Wright, any discriminatory terminate intent Reynolds v. R.J. Tobacco may possessed could not have been (1st Cir.1990)). Wright's the cause of termination unless he manipulated somehow the decisionmakers 21. Southland contends that all (Powell Tatum) terminating Wright— into upon Wright hearsay, relies is which is instance, by making a recommendation on inadmissible at trial and thus insufficient to relied, .by pro- which the decisionmakers summaty judgment. defeat a motion for See viding false information to the decisionmak- Servs., Pritchard v. Southern Co. 92 F.3d ers for consideration in their decision wheth- (11th 1996) (noting Cir. although Wright. Llampallas er to retain Circuits, Lab, Inc., v. Mini- summary evidence used to defeat a motion for trial, judgment need not be admissible at Cir.1998) (describing paw” theory "cat’s of capable being must be of reduced to admissi cases, liability in discrimination form). Hearsay ble ais statement made person under discriminatory which a with declarant, someone other than the offered to decisionmaker). manipulates animus prove the truth matter asserted. See Bishop’s only input into the termination deci- 801(c). Fed.R.Evid. The statements in this (and Wright sion was three letters he wrote to being prove case are not offered to the truth file) placed Wright's personnel in which he (e.g., Wright of the matters asserted that was problems documented involving certain operate computers), too old to Southland’s Wright’s accounting procedures. These let- prove but rather to the state of mind of the ters were in turn used Powell and Tatum Consequently, they decisionmakers. are not Wright. Wright their decision to terminate hearsay may ruling and be considered on presented has any no evidence that misinfor- summary judgment. Southland's motion for mation was contained in the lеtters —in other words, presented he has no evidence that the accounting problems Wright documented in the let- counters with evidence that instance, actually explanation ters did not Consequently, pretextual exist. evi- —for there Bishop manipulated younger is no evidence that managers dence that store with more decisionmakers, and thus accounting problems discrimina- serious were not termi- tory intent on his be said not to be nated. initially held that the court The district conclusive, Wright that to tends direct evi- present failed to plaintiff had age.23 to his not fired due was retaliation, again using the dictio- of dence sum, presented has Wright term. It then as- of that nary definition Conse- age discrimination. evidence plaintiff had that arguendo sumed mate- issue of genuine there is to establish proven facts quently, presumption.24 It Douglas termi- McDonnell Wright’s to the cause fact as rial held, relating that the evidence on that turns nation, largely issue an proffered legitimate, to defendant’s or Southland’s Wright’s witnesses whether for the termi- non-discriminatory reason believed. Such to be are witnesses and namely, problems accounting nation — merchandise can be made credibility determination strong so shortages —was trial, summary entry and the after for the jury could find that no reasonable ADEA was claim Wright’s on judgment therefore plaintiff. The district court inappropriate. therefore the defen- summary judgment for granted dant. presented di- Wright

B. We hold Wright filed retaliation. rеct alleges, as an alterna also Wright complaint with the an age discrimination claim, termi that his his ADEA to tive In mid- November on EEOC an for his filing in retaliation was Wright nation re- following year, January of the Ray- Mike complaint with call telephone ceived age specialist for mond, a human resources filing EEOC, Title VII. violation in- responsibilities job whose Southland imper is an complaint with the EEOC aof handling charges of discrimination. cluded to an adverse take basis which missible him Raymond asked According Wright, to individual, an employment action drop his com- going whether he race, sex, impermissi are and just responded Wright plaint EEOC. with Consequent such an action. bases ble pursuing to continue intended applies framework analytical ly, the same said, Raymond point complaint, at which applies to other claims as retaliation it,” hung up the tele- regret “You will claims, includ later, one month Approximately phone. the McDonnell availability of ing Powell to Sharon Raymond recommended Hairston presumption. See terminat- Wright Phil Tatum F.3d Publishing days a few Sun Wright was terminated Gainesville ed.25 recommendation. (11th Cir.1993). made his after Raymond who the few individuals pened be one of why the re- reasons are numerous 23.There are higher These Wright by an older standards. placement of individual could attain possibility point that South- possibilities; does not rule out land fired only a few of age. Wright For because of his replaced by Wright fact simply replacement may necessarily lead to does not older individual liability for post attempt to avoid an ex been Wright a victim of was the conclusion words, once age discrimination —in age discrimination. facing potential was it Southland realized suit, attempted "cover age discrimination that, volunteered because Southland 24. Note Wright with older by replacing an Wright’s tracks” its individual. nondiscriminatory for reason legitimate, Alternatively, because discharge, court should Wright’s the district (who employed by already replacement was Douglas analysis skipped the McDonnell have discharge) Wright’s of at the time Southland ques- directly to the proceeded altogether and placed been another would otherwise Wright had sufficient tion whether store, Wright to reduce firing served of ques- on the persuasion of carry his burden older man- total store Southland's agers number Aikens, improper discrimination. tion of part have been thus could 715-16, at 1482. atU.S. its attempt Southland reduce systematic managers. Another of older store number recommendation Raymond claims that this higher Southland theory would be that ac- investigation into the on his was based managers for store than for older standards Wright’s store. counting procedures at ones; hap- replacement Wright’s younger conclude, not, a jury From this could could probably reason- more than ably conclude than the defendant discriminated not, Wright fired in in regard retaliation for to the contested filing complaint with the EEOC. The decision оn the of a basis it,” regret threat of “You will made by personal characteristic. Once director, hardly understood, human resources “direct evidence” is so it be- anything other than a threat comes equally of some form clear that employment-related hardship. Further- this case has direct evidence of both age more, clearly the threat was linked to the discrimination and retaliation. He there- statutorily-protected activity pursuing jury. fore has a case for the complaint with Finally, Wright the EEOC. The district granting court’s order sum- in Ray- was terminated —based mary judgment is VACATED and the case mond’s recommendation26—one month is REMANDED for further proceedings Thus, Wright’s thereafter. testimony, if consistent with opinion. believed, is sufficient to make aout case of SO ORDERED. retaliation. See Merritt v. Paper Dillard (11th Cir.1997) 1190-91 COX, Judge, specially Circuit (holding that a statement a decisionmak- concurring: employee er’s statement that an would be discharged plus express disapproval join of a I Judge Tjoflat’s opinion. do not protected activity in a single agree conversation But I that the evidence is sufficient constituted “direct evidence” of retaliatory genuine to create issues of material fact on discharge). Wright’s discharge claim Wright’s and on retaliation claim. I therefore concur Again, is not meant to discount the judgment vacating entry summary weight of Southland’s evidence to the con- judgment on these remanding claims and trary namely, documentary and testi- — proceedings. further III.A, monial evidence in part discussed supra, that Wright was fired because of HULL, Judge, specially Circuit accounting problems and merchandise concurring: evidence, however, shortages. This is not overwhelming prevent so toas a reason- agree I that the district court erred in jury able Wright’s it found evidence granting summary judgment for the defen- —if credible—from concluding Wright dant I this case but concur in the fired in pursuing retaliation for a com- Tjoflat’s result reached Judge opinion. plaint with the EEOC. plaintiff presented sufficient evidence to create a jury regarding both age issue

IV. discrimination and Judge retaliation. Tjoflat’s opinion correctly vacates idea of “direct evidence” has been a judgment district court and correct- great source of confusion in ly remands claims for a trial. discrimination law. examining After topic cases on the and the legal framework used,

within which the term is it is clear that ‍‌​​​‌‌​​​​‌‌​‌​​​​‌​‌‌​​​‌‌​‌​‌‌‌​​​‌‌‌​​​​‌‌​‌​‍direct evidence can mean nothing oth-

er than evidence from which a trier of fact so, Raymond's 26. Given the position Wright. nature of Raymond's retaliatory If intent specialist a human profes- resources and his Wright's could be considered the cause of (who relationship sional with Sharon Powell termination, despite Raymond the fact that often person- consulted with him on various people actually was not one of the who made issues), jury reasonably nel-related discharge Wright. supra decision to conclude that she and Phil Tatum relied note 20. deciding his recommendation in to terminate

Case Details

Case Name: Wright v. Southland Corporation

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 3, 1999

Citation: 187 F.3d 1287

Docket Number: 97-3458

Court Abbreviation: 11th Cir.