Isenbergh v. Knight-Ridder Newspaper Sales, Inc. ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-4769.
Paul ISENBERGH, Plaintiff-Appellant,
v.
KNIGHT-RIDDER NEWSPAPER SALES, INC., n.k.a. Newspapers First,
Inc., Knight-Ridder, Inc., Defendants-Appellees.
Sept. 19, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-1596-CIV-UUB), Jacob Mishler,
District Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL*, Senior
Circuit Judge.
PER CURIAM:
We withdraw altogether our earlier opinion dated June 11,
1996, and published at 84 F.3d 1380. Our decision for the case
remains the same. We think today's opinion may in some ways better
explain our thoughts, however.
Plaintiff Paul Isenbergh appeals the district court's grant of
judgment as a matter of law for defendant Knight-Ridder Newspaper
Sales, Inc. ("KRNS"), n/k/a Newspapers First, Inc. ("Newspapers
First"), in Isenbergh's suit under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Isenbergh claims
that Newspapers First discriminated against him because of his age
in selecting the manager for the company's Miami sales office.
After trial, a jury returned a verdict in favor of Isenbergh and
awarded him $250,000 in damages. Newspapers First renewed its
*
Honorable Albert J. Engel, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.
motion for judgment as a matter of law under Rule 50(b) of the
Federal Rules of Civil Procedure; the district court granted the
motion. Because we agree that Isenbergh did not produce evidence
from which the jury could reasonably infer intentional
discrimination based on age, we affirm.
I.
In 1990, KRNS merged with Million Market Newspapers/Times
Mirror National Marketing, Inc. ("MMTM") to form Newspapers First.
At the time of the merger, Isenbergh, sixty years old, was the
manager of KRNS's Miami sales office. Larry Malloy, forty-four
years old, was the manager of MMTM's Miami sales office. Both were
candidates, along with eight other KRNS and MMTM managers from
around the country, for the new position of manager of Newspapers
First's Miami sales office. To select the new manager, King
Anthony, the former president of MMTM and current president of
Newspapers First, and John Kosanke, the former president of KRNS
and current executive vice-president of Newspapers First,
interviewed the ten candidates. The only real competition for the
new position, however, was apparently between Isenbergh and Malloy,
because Newspapers First did not want to move a manager from
another part of the country to Miami. In conjunction with the
interviews, Anthony and Kosanke used an "alternation ranking
system" to rate the candidates. KRNS had never used this system
before to make personnel decisions. Under the system, each
candidate received two ordinal rankings: one based on past
management performance and one based on the interview. The two
rankings were averaged to obtain each candidate's overall score.
When the nine candidates who had worked at KRNS or MMTM for
more than six months were ranked according to this system,
Isenbergh finished eighth. Malloy finished second. Three managers
over age fifty—including one who was sixty-three years old—finished
higher than Isenbergh. Malloy got the job, and Isenbergh was
offered the chance to interview for a sales position in Miami. He
chose to take early retirement instead.
Isenbergh testified that the atmosphere at his interview was
"cold" and that Anthony was on the phone most of the time. His
interview allegedly lasted only a half-hour, whereas Malloy's was
a full hour, as all of the interviews were planned to be.
Newspapers First presented evidence challenging Isenbergh's version
of what happened at the interview.
Isenbergh worked for KRNS from the late 1960s until 1990,
mostly as a salesman. He became a vice-president in 1984. In
1986, he won the praise of Kosanke by selling an advertising
package to Walt Disney World. Isenbergh's competitors for the
account included a newspaper whose sales were handled by Malloy.
The parties dispute the significance of this transaction.
Isenbergh characterizes it as evidence of his good job performance
in the past and of his superior qualification, relative to Malloy,
for the managerial job. Newspapers First deems it to be
irrelevant, because it involved sales, not management, and because
Isenbergh's newspaper was able to offer Walt Disney World a lower
advertising rate than was Malloy's newspaper.
There is conflicting evidence about how Isenbergh was viewed
within the company and about his qualifications as a manager.
Isenbergh points to his annual pay raises and
management-by-objective bonuses that were approved by Kosanke, as
well as to the lack of a paper trail of criticism, as evidence of
his perceived competence. He further points to testimony by
Kosanke that Isenbergh was a "seasoned manager" and a "satisfactory
manager." Kosanke also testified, however, that Isenbergh was a
"lone ranger" and was not a "team player." Isenbergh argues that
his experience running newspaper offices of up to five people and
commanding a department of about sixty men while he was in the Navy
qualified him as a manager. Newspapers First counters that
Isenbergh's job at KRNS entailed little management and that for the
management Isenbergh did do, he was criticized by Kosanke. It
stresses Malloy's extensive management experience and argues that
he was better suited for the new job than Isenbergh.
II.
A.
We review de novo the district court's grant of judgment as
a matter of law. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2557, 132 L.Ed.2d
811 (1995). In other words, we apply the same standard as that
applied by the district court. Carter v. City of Miami, 870 F.2d
578, 581 (11th Cir.1989). In considering a motion for judgment as
a matter of law, a court must view all the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of the nonmoving party. Id. The motion should
be granted only if upon such consideration, the court finds that
reasonable people in the exercise of impartial judgment could not
arrive at a contrary verdict. Id. The court may not weigh the
evidence or decide the credibility of witnesses. Watts v. Great
Atl. & Pac. Tea Co., 842 F.2d 307, 310 (11th Cir.1988) (quoting
Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc)).
The nonmoving party must provide more than a mere scintilla of
evidence to survive a motion for judgment as a matter of law;
"there must be a substantial conflict in evidence to support a jury
question." Carter, 870 F.2d at 581.
We look first to see whether Isenbergh has presented a prima
facie case of discrimination. A plaintiff alleging age
discrimination under the ADEA may choose one of three ways to
establish a prima facie case: (1) direct evidence of
discriminatory intent; (2) statistical proof of disparate
treatment; or (3) meeting a test such as that set out in
McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973). See Carter v. City of Miami, 870 F.2d 578, 581 (11th
Cir.1989). Plaintiff's burden in proving a prima facie case is
light. See Brown v. American Honda Motor Co., 939 F.2d 946, 949
(11th Cir.1991).
In McDonnell Douglas, the Supreme Court articulated the four
elements a plaintiff must show in order to establish a prima facie
case of employment discrimination:
(i) that he belongs to a [protected class]; (ii) that he
applied and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications,
he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek
applicants from persons of complainant's qualifications.
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The Supreme
Court intended this framework to be flexible, see id. at 802 n. 13,
93 S.Ct. at 1824 n. 13, rather than "mechanized, or ritualistic,"
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (quoting Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57
L.Ed.2d 957 (1978)). This court has enunciated various
reformulations of the McDonnell Douglas test. For example, in
Earley v. Champion International Corp., 907 F.2d 1077 (11th
Cir.1990), we set forth a slightly different variation of the
McDonnell Douglas test in an ADEA case involving a "reduction in
force." The plaintiff had to show
(1) that he was in a protected age group and was adversely
affected by an employment decision; (2) that he was qualified
for his current position or to assume another position at the
time of discharge or demotion; and (3) evidence by which a
fact finder might reasonably conclude that the employer
intended to discriminate on the basis of age in reaching the
decision at issue.
Earley, 907 F.2d at 1082.
The district court treated this case as a "failure to hire"
case, as opposed to a "reduction in force" case. Although, as
discussed above, case law suggests that the standard for
establishing a prima facie case depends on whether the case
concerns a reduction in force as opposed to a termination or a
failure to hire, compare Earley, 907 F.2d at 1082 (listing prima
facie case criteria for reduction-in-force cases), with Carter, 870
F.2d at 582 (listing prima facie case criteria for termination and
failure-to-hire cases), the instant appeal demonstrates why, as we
noted in Pace v. Southern Railway System, 701 F.2d 1383 (11th
Cir.1983), employment discrimination cases are not easily
categorized and why any prima facie case test must be flexible. In
a sense, the position of manager of Newspapers First's Miami office
was a new job as a result of the merger of KRNS and MMTM, and
Isenbergh's and Malloy's previous positions disappeared. From this
viewpoint, the case is one of a failure to hire. Because the
candidates considered for this "new" position, however, were all
from within the two merging companies, the situation was not the
same as in a standard failure-to-hire case. In essence, because of
the merger, there was a reduction in force from two Miami managers
to one. In deciding whether Isenbergh has established a prima
facie case, we need not crudely categorize the facts as involving
either a failure to hire or a reduction in force. Instead, we
examine the facts of the case and decide "whether the plaintiff has
presented sufficient evidence to provide a basis for an inference
that age was a factor in the employment decision." Pace, 701 F.2d
at 1387.
We conclude that Isenbergh presented a prima facie case.
Isenbergh was in the protected age group, and he was adversely
affected by Newspapers First's decision to select Malloy, who is
sixteen years younger than Isenbergh, as the new manager.1
Moreover, because the decisionmakers for Newspapers First were
familiar with Isenbergh's performance in his work for KRNS, we can
infer from the fact that he was granted an interview that Isenbergh
was at least at some level qualified for the new job. Without
deciding the ultimate question of whether a jury could reasonably
1
That Malloy was also a member of the class of persons
protected by the ADEA does not render insufficient Isenbergh's
prima facie showing. See O'Connor v. Consol. Coin Caterers
Corp., --- U.S. ----, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).
infer intentional discrimination, we believe that Isenbergh has
satisfied this part of the McDonnell Douglas- Burdine
burden-shifting analysis.
B.
1. Newspapers First's Burden of Proffering a Non-Discriminatory
Rationale For the Challenged Decision
We next inquire whether Newspapers First has met its burden
of producing evidence of a legitimate, nondiscriminatory reason for
offering the job to Malloy rather than to Isenbergh. See generally
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101
S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). This burden on the
employer is one of production, not persuasion. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125
L.Ed.2d 407 (1993). If the burden is met, the McDonnell Douglas
framework "drops out" of the case, leaving the jury to decide the
ultimate question of whether the employer intentionally
discriminated on the basis of age. Hicks, 509 U.S. at 511, 113
S.Ct. at 2749. Here, Newspapers First met its burden of production
by asserting that Isenbergh was denied the managerial position
because he was the less qualified of two applicants for the same
job.
2. Isenbergh's Burden of Proving that Age Was the Real Reason For
the Challenged Hiring Decision
Newspapers First having met its burden of production, it fell
to Isenbergh to show that the employer's proffered reason for the
adverse employment decision was false and that discrimination was
the real reason. Id. at 515, 113 S.Ct. at 2752. On this point, we
worry that there is some conflict in the case law of this circuit.
The conflict concerns whether a plaintiff in Isenbergh's position
carries his burden of proof on discrimination just by showing a
basis in the record for disbelief of the employer's reason. The
origin of the conflict is the Supreme Court's opinion in Hicks.
Hicks involved alleged employment discrimination based on
race. It decided a narrow question which arose from a bench trial.
The Hicks Court held that the plaintiff was unentitled to judgment
as a matter of law even though the trier of fact—a district
judge—disbelieved the employer's proffered nondiscriminatory
reason. The district judge did not believe the employer's reason
for firing the plaintiff, but also did not think that the plaintiff
had proved that race was the real reason for his discharge. The
district court, therefore, entered judgment for the defendant
employer. The Eighth Circuit reversed, deciding that the
discrediting of the employer's proffered reason entitled the
plaintiff to judgment as a matter of law. The Supreme Court in
turn reversed the court of appeals and remanded the case for
further proceedings consistent with its opinion, reinstating the
judgment entered in favor of the defendant by the district court as
the trier of fact. Because Hicks was a case that had been fully
tried before a judge sitting as the trier of fact, Hicks decided
nothing about either Rule 50 (judgment as a matter of law in
actions tried by jury) or Rule 56 (summary judgment) in employment
discrimination cases.
This case is about Rule 50. Isenbergh argues that never can
an employer be entitled to a judgment as a matter of law in an
employment discrimination case if the evidence is sufficient to
allow the jury to disbelieve the employer's proffered reason for
the employment action. To support this argument, Isenbergh looks
beyond the decision in Hicks, that is, its holding, and stresses
some language lifted from the opinion in Hicks:
The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant's proffered reasons, will
permit the trier of fact to infer the ultimate fact of
intentional discrimination, ... [and] upon such rejection,
"[n]o additional proof of discrimination is required,"....
Id. at 511, 113 S.Ct. at 2749 (quoting Hicks v. St. Mary's Honor
Center, 970 F.2d 487, 493 (8th Cir.1992)) (emphasis added).
We do not see these sentences as giving force to Isenbergh's
argument. The first sentence of this passage shows that disbelief
of the employer's proffered reason may (and by implication, may
not) be enough for a plaintiff to overcome an employer's motion for
judgment as a matter of law. The second sentence is potentially
more confusing in saying that rejection of the proffered reason
"will permit" the inference of discrimination. But keeping in mind
that the word "will" sometimes means "can" (for example, "can
permit") or "capable of," (for example, "capable of permitting"),
both sentences, when read together, at least strongly suggest that
rejecting the employer's proffered reason is not always sufficient
to allow a finding of discrimination, although sometimes
"(particularly if disbelief is accompanied by a suspicion of
mendacity)" it might be. The Hicks Court spoke in a similar way in
the accompanying footnote:
Contrary to the dissent's confusion-producing analysis, there
is nothing whatever inconsistent between [the statement quoted
above] and our later statements that (1) the plaintiff must
show "both that the reason was false, and that discrimination
was the real reason," and (2) "it is not enough ... to
disbelieve the employer." Even though (as we say here)
rejection of the defendant's proffered reasons is enough at
law to sustain a finding of discrimination, there must be a
finding of discrimination.
Id. at 511 n. 4, 113 S.Ct. at 2749 n. 4.
In the context of the Hicks decision and the whole opinion, we
think the phrase "(as we say here)" probably means "(as we say in
this case, that is, in the matter before us)": given the record in
Hicks, itself, the rejection of defendant's proffered reasons was
enough—in Mr. Hicks' case, no more proof was required—to have
supported a finding of discrimination.
While the language from the Hicks opinion might be capable of
being read in two or more ways, the most important thing to recall
about Hicks is plain: the case before the Court was not about Rule
50, a jury trial, or a verdict for plaintiff. Thus, the Court was
deciding nothing about a case that presents those circumstances.
Some confusion exists in the law of this circuit about whether
Hicks always precludes judgments as a matter of law for employers
whenever there is a plausible basis on which to disbelieve the
employer's proffered reason for the employment decision in
question. Howard v. BP Oil Co., 32 F.3d 520, 527 (11th Cir.1994),
for example, concluded that under Hicks, "the fact finder's
rejection of defendant's proffered reasons is sufficient
circumstantial evidence upon which to base a judgment for the
plaintiff."2 Howard reversed a summary judgment for the defendant
2
Howard is not the court's only opinion that says this kind
of thing. Howard, however, may possibly be the only case in
which the facts before the court were such as to make the
statement determinative of the outcome.
where the record provided a basis for the disbelief of the
defendant's proffered explanation.
If Howard was purporting to set out a legal principle that had
application beyond its own facts, Howard seems inconsistent in this
regard with the holding in, at least, Walker v. NationsBank, 53
F.3d 1548 (11th Cir.1995), and with some of the language in Batey
v. Stone, 24 F.3d 1330 (11th Cir.1994). See NationsBank, 53 F.3d
at 1557-58 (accepting plaintiff's contention that defendant's
proffered reasons were lies, and nonetheless affirming directed
verdict for defendant); Batey, 24 F.3d at 1334 n. 12 (noting that
after Hicks, focus in discrimination cases is no longer falsity of
employer's explanation, but whether plaintiff has proved
intentional discrimination).
We doubt that Howard 's words are supported by the reasoning
of Justice Scalia's opinion for the Court in Hicks, and we believe
that Howard is mistaken when it reads Hicks as controlling kinds of
cases that were not before the Supreme Court in Hicks.3 Again,
Hicks only held that a judge may, after a bench trial, disbelieve
the employer's proffered reason for a hiring decision and yet still
grant judgment to the employer. Hicks, 509 U.S. at 508-11, 113
S.Ct. at 2748-49. So, despite the Hicks language quoted above, we
have no confidence that the Hicks decision dictates to circuit and
district judges, or even was intended to suggest, that every time
the evidentiary record in a case could support a jury's disbelief
3
While the Howard court referred to St. Mary's Honor Center
v. Hicks in shortened form as "St. Mary's, " we refer to the case
as "Hicks " because that name is the more widely used shortened
form of the case name and because Hicks is the name of the first
non-governmental party.
of the employer's explanation for the pertinent employment action,
no court may grant a motion for judgment as a matter of law to the
employer (or grant to an employer summary judgment) in an
employment discrimination case. In our view, Hicks, taken as a
whole, more likely supports a different conclusion: in such
circumstances, the watchword would be not "every time," but
"sometimes."
According to Hicks, cases will exist where certain facts are
established at trial, among them facts supporting the
"dis-believability" (put differently, the unbelievableness) of the
employer's reasons for the challenged employment decision, and
where nonetheless the application of the law to the facts
established at trial will yield a decision by the factfinder for
the employer. Accepting Hicks 's holding, we still also think
there will be some cases in which the record, viewed in the light
most favorable to the plaintiff, supports the dis-believability of
the employer's reason; and yet the application of the law to the
evidence demands a judgment for the employer as a matter of law.
Assume the following situation by way of example. A defendant
sues, alleging he was terminated based on his membership in a
protected class. The employer responds with a neutral reason for
the hiring decision: the employee was terminated because he was
late nine times. After a bench trial, the judge finds, among other
facts, that the defendant was late not nine, but seven times.
Relying on Hicks, however, the judge determines that this case is
one where the employer's reason should be disbelieved, but where
application of discrimination law to the instant facts (including
dis-believability) nonetheless supports a judgment for the
employer. This result is the one specifically authorized by
Hicks.
See 509 U.S. at 508-11, 113 S.Ct. at 2748-49.
The issue in Howard and NationsBank and the issue alluded to
in the original panel opinion here is essentially this one: might
there be a case where the application of law to facts can proceed
in a similar way, but at the summary judgment stage or for the
purposes of judgment as a matter of law? To continue with the
prior example, suppose the employer offers the nine-latenesses
explanation, and the record in a jury trial shows that no
reasonable jury could find but that the plaintiff was late only
seven times. Assuming the employee made out a bare prima facie
case and nothing else points to discrimination, may the employer—at
least, sometimes—be entitled to a judgment as a matter of law even
though the jury could (indeed, must) disbelieve the employer's
stated reason? The Howard panel, reading Hicks, seems to say "no."
We suspect, however, that the answer is "yes"—that
NationsBank, not Howard, is the more correct statement of the law.
Howard 's understanding of Hicks would preclude a judgment as a
matter of law in some cases where historically (pre-Hicks ) such
judgment was required. But the Hicks opinion says that trial
courts and reviewing courts should not treat discrimination
differently from other ultimate questions of fact. 509 U.S. at
523-25, 113 S.Ct. at 2756. So, we are skeptical that the Supreme
Court intended to remove an entire category of cases from
traditional consideration under Fed.R.Civ.P. 50 or 56. See
generally Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080
(11th Cir.1990) ("The summary judgment standard mirrors the
standard for a directed verdict under the Federal Rule of Civil
Procedure 50(a), which is that the trial judge must direct a
verdict if, under the governing law, there can be but one
reasonable conclusion as to the verdict.") (citations and internal
quotation marks omitted); see also Rhodes v. Guiberson Oil Tools,
75 F.3d 989, 993 (5th Cir.1996) (en banc) (concluding that when
employer's reason is disbelieved, "we are convinced that ordinarily
such verdicts [for plaintiffs] would be supported by sufficient
evidence, but not always. The answer lies in our traditional
sufficiency-of-the-evidence analysis").
We doubt the Supreme Court intended to command such a dramatic
and hurtful-to-employers change in the law when the Court decided
Hicks: a decision which did not contract, but expanded, the
universe of discrimination cases where judgment for employers would
be permissible. We believe the Supreme Court would not declare
such an important new rule—the rule which Howard sees in Hicks—in
a case in which the new rule plays no vital part in the decision.
We think the Supreme Court would have set out such an important new
rule—one that, in effect, partly nullifies two of the Federal Rules
of Civil Procedure—conspicuously and plainly so that no Article III
judge could miss it. Simply put, we fear that what Howard says
about sufficient evidence is a mistake which was caused by
extending possibly ambiguous language in Hicks to decide a case
(Howard ) that presented a question not decided in Hicks.
Having noted the ostensible4 conflict in the circuit's law and
having had our say about it, we return to the case before us now.
Whatever significance Howard might have, Howard does not control
this case because our examination of the record here indicates that
Isenbergh failed in creating an issue of fact about the
dis-believability of the employer's reason for the hiring decision.
C.
Newspapers First has produced evidence showing that the
principal criterion used in determining who would get the job was
management ability, as assessed at the interviews and by evaluating
past performance. And, Isenbergh's efforts to produce a basis to
contradict Newspapers First's nondiscriminatory justification do
not suffice to create a jury question on the issue of pretext. So,
even if Howard is and ought to be the law, and a plaintiff—by
providing a basis to doubt the employer's justification—can bar his
employer's obtaining a judgment as a matter of law, Isenbergh has
still failed to do so in this case.
"[B]ecause the plaintiff bears the burden of establishing
pretext [for discrimination], he must present "significantly
probative' evidence on the issue to avoid summary judgment." Young
v. General Foods Corp., 840 F.2d 825, 829 (11th Cir.1988) (quoting
4
We say ostensible conflict because we observe that Howard
is a summary judgment case and that NationsBank is a Rule 50
case. This difference may be important. We today do not mean to
rule out the possibility that motions for judgment as a matter of
law in cases which have been fully tried, including the
cross-examination of witnesses, may be governed by some different
principles than those governing the grant or denial of summary
judgment. So, the words of the NationsBank opinion might be
inconsistent with the words of the Howard opinion, yet the two
decisions might not be conflicting.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548,
2552-53, 91 L.Ed.2d 265 (1986) (discussing summary judgment
standard)). "Conclusory allegations of discrimination, without
more, are not sufficient to raise an inference of pretext or
intentional discrimination where [a defendant] has offered
extensive evidence of legitimate, non-discriminatory reasons for
its actions." Young, 840 F.2d at 830.
In the discrimination context, we have stated that "[it] bears
repeating that a mere scintilla of evidence does not create a jury
question." Carter v. City of Miami, 870 F.2d 578, 581 (11th
Cir.1989) (holding, in ADEA case, that defendant was due judgment
as matter of law where plaintiff failed to cast sufficient doubt on
defendant's proffered non-discriminatory rationale). And, in
considering whether a plaintiff has presented a jury question on
pretext, we have required that the plaintiff point to facts which,
if true, would present a basis for the disbelief of the defendant's
overall justification. That the plaintiff calls into question some
assertions made by the defendant in support of defendant's
justification is not enough. The plaintiff must call into question
the veracity of the defendant's ultimate justification itself. See
Brown v. American Honda Motor Co., 939 F.2d 946, 952-54 (11th
Cir.1991) (although plaintiff succeeded in contradicting some facts
alleged by defendant, plaintiff presented no jury question because
defendant's ultimate justification went essentially unchallenged).
Here, as noted above, Newspapers First's proffered rationale
was that Isenbergh was the less qualified of the two applicants for
the job. In support of this assertion, Newspapers First presented
the jury with evidence to show that Malloy, Isenbergh's competitor,
managed a larger office; that Isenbergh had difficulties agreeing
to office budgets; that Malloy was perceived by the decisionmakers
as more of a team player; that Malloy was near the top of the
rankings under the alternation ranking system, while Isenbergh
ranked second-to-last; and that Malloy had dealt with a larger
number of major market newspapers than had Isenbergh. Also, the
evidence showed that the favorable past ratings Isenbergh pointed
to related to Isenbergh's sales, not managerial, experience.
In the light of the extensive evidence supporting Newspapers
First's contention that it hired Malloy because it believed him the
better-qualified applicant, Isenbergh's efforts to prove Newspapers
First's justification a pretext for discrimination do not succeed
in creating a jury question. Isenbergh points out that he had
successfully competed for a sales account with Malloy in 1986, that
he had consistently received raises, that the alternation ranking
system had not always been used, and that his would-be employers
appeared bored and disinterested during his interview. These
things provide a basis on which to question some facts offered by
Newspapers First in support of its decision; but they do not, in
view of Defendant's overwhelming evidence, provide a basis for
contradicting Newspapers First's ultimate justification: Malloy
was more qualified. See Brown v. American Honda Motor Co., 939
F.2d 946, 952-54 (11th Cir.1991) (although plaintiff presented
evidence that defendant slighted the procedures set out in its
manual, plaintiff failed to create sufficient basis to disbelieve
defendant's ultimate reasons for selecting other applicant).
III.
Newspapers First argues that Isenbergh's failure to remain
employed and thereby mitigate his damages cuts off any claim that
he may have. In view of our ruling, we need not address this
issue.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.