Scott v. University of MS

Revised August 27, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-60385
____________
LINDA ANNE SCOTT,
Plaintiff - Appellee - Cross-Appellant,
versus
UNIVERSITY OF MISSISSIPPI,
Defendant - Appellant - Cross-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
July 27, 1998
Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The University of Mississippi (“University”) appeals the
judgment entered against it following a jury trial in this Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
case brought by Linda Anne Scott. Holding that Scott failed to
adduce sufficient evidence from which a jury could reasonably infer
discrimination and, therefore, that the district court erred in
denying judgment as a matter of law to the University, we reverse.
I
In 1991, the University of Mississippi School of Law (the “Law
School”) hired Linda Anne Scott as a reference librarian in the Law
School library. In 1993, when she was 54 years old, Scott applied
for the position of legal writing specialist, a ten-month
contractual, non-tenure-track position (the “1993 hiring”). To
make the hiring decision, the law school convened a four-member
committee, consisting of David E. Shipley, Professor and then Dean
of the Law School, Larry S. Bush, Associate Professor, Larry
Pittman, Assistant Professor, and Sylvia Robertshaw, Director of
the Law School’s legal writing program. From twenty-six total
applicants, the committee selected six finalists, ultimately
ranking Sandra Shelson first, Anne Gullick second, and Scott
third.1 At that time, Gullick was thirty-three years old. The
committee first offered the position to Shelson, who declined the
offer, and then to Gullick, who accepted it. After learning of the
decision to hire Gullick, Scott filed a charge of age
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) and, one year later, in 1994, this law suit. In early
1995, when a legal writing specialist position again became
available, Scott applied for it (the “1995 hiring”). Of thirty-
three applicants, Scott was again one of the finalists, but she was
1
Scott does not challenge the committee’s ranking or
selection of Shelson, the only applicant who had experience
teaching legal writing.
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not offered the position.
Scott’s original complaint set forth a claim of age
discrimination for the 1993 hiring. She later amended her
complaint to include a claim of age discrimination for the 1995
hiring and a claim that her not being hired in 1995 was retaliation
for filing her age discrimination claim for the 1993 hiring (the
“second amended complaint”). Before trial, the University
submitted motions in limine (1) to exclude or limit the testimony
of Scott’s expert, Mark Baggett; (2) to limit Scott’s evidence of
retaliation to those claims of retaliation raised in her second
amended complaint; and (3) to exclude all testimony regarding age
discrimination in the 1995 hiring. The court allowed Baggett to
testify about the 1993 hiring, but, finding that Scott had not
timely supplemented Baggett’s opinions related to the 1995 hiring,
disallowed his testimony about the 1995 hiring. The court next
granted the University’s motion regarding evidence of retaliation,
limiting Scott to the charges of retaliation raised in her second
amended complaint. Finally, with respect to the 1995 hiring, the
court ruled that Scott could testify “in terms of retaliation but
not as a separate discrimination claim” because she had not
presented the age discrimination claim to the EEOC.
The court thus submitted two claims to the jury: (1) an age
discrimination claim for the 1993 hiring, and (2) a retaliation
claim for the 1995 hiring. The jury returned a verdict in favor of
Scott on the age discrimination claim, but in favor of the
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University on the retaliation claim. Before the court gave the
jury its instructions, the parties stipulated that the court would
determine the question of damages upon a verdict for Scott. After
the jury rendered its verdict, the court ordered the University to
hire Scott as a legal writing specialist at the next vacancy and
awarded her front and back pay. Both parties submitted motions for
judgment as a matter of law at the close of evidence and after the
verdict.
The University contends on appeal that the district court
erred (1) in concluding as a matter of law that it did not have
Eleventh Amendment immunity from suit under the ADEA; (2) in
denying its motion for judgment as a matter of law because the
evidence was insufficient to support Scott’s age discrimination
claim; and (3) in admitting Baggett’s testimony regarding the 1993
hiring. Scott cross-appeals the jury verdict on the retaliation
claim, raising evidentiary issues only. Specifically, she claims
that the court erroneously excluded Baggett’s testimony regarding
the 1995 hiring and evidence of retaliation after Scott filed her
second amended complaint. Scott also challenges the court’s
refusal to allow evidence about her claim of age discrimination in
the 1995 hiring. Both parties also appeal various issues related
to damages.2 Because the Eleventh Amendment, when applicable,
2
Because we reverse the judgment entered in favor of Scott
on the age discrimination claim, we do not reach the issue of
damages or the University’s evidentiary challenges.
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imposes a limitation on our jurisdiction, see Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 1122, 134 L.
Ed. 2d 252 (1996), we turn first to that issue.
II
The district court held, without explanation, that Congress
had abrogated the states’ Eleventh Amendment immunity from suit
under the ADEA and that Scott’s ADEA suit was therefore not barred
by the Eleventh Amendment. The University disagrees, arguing that
it is immune from suit under the ADEA.3
“The Eleventh Amendment provides immunity to states from suits
in federal court by private persons.” Coolbaugh v. Louisiana, 136
F.3d 430 (5th Cir. 1998), petition for cert. filed, 66 U.S.L.W.
3783 (U.S. May 28, 1998) (No. 97-1941). That immunity is, however,
not without limit: “A state may consent to be sued in federal
court, and in certain circumstances, Congress may abrogate the
3
Three circuits have addressed this issue since Seminole
Tribe. Two have held that Congress abrogated the states’ Eleventh
Amendment immunity from suit under ADEA. See Goshtasby v. Board of
Trustees of the Univ. of Ill., 141 F.3d 761 (7th Cir. 1998); Hurd
v. Pittsburgh State Univ., 109 F.3d 1540 (10th Cir. 1997). One has
reached the opposite result. See Kimel v. State of Fla. Bd. of
Regents, 139 F.3d 1426, 1433 (11th Cir. 1998) (concluding that
“nothing in the ADEA indicates a truly clear intent by Congress to
abrogate Eleventh Amendment immunity”). District courts have split
on the issue, with the minority reaching the opposite result of
Goshtasby and Hurd. See, e.g., MacPherson v. University of
Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996) (holding that
Congress did not abrogate states’ Eleventh Amendment immunity in
enacting the ADEA), aff’d, 139 F.3d 1426 (11th Cir. 1998).
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states’ sovereign immunity.”4 Goshtasby v. Board of Trustees of
the Univ. of Ill., 141 F.3d 761, 765 (7th Cir. 1998) (citing
Seminole Tribe, 517 U.S. at 63-66, 71 n.15, 116 S. Ct. at 1128,
1131 n.15; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct.
2666, 2671, 49 L. Ed. 2d 614 (1976)). In Seminole Tribe, the
Supreme Court outlined a two-part inquiry for determining whether
Congress has abrogated the states’ sovereign immunity from suit
under the Eleventh Amendment in enacting particular legislation:
“first, whether Congress ‘has unequivocally expressed its intent to
abrogate the immunity,’ and second, whether Congress has acted
‘pursuant to a valid exercise of constitutional power.’” Seminole
Tribe, 517 U.S. at 55, 116 S. Ct. at 1123 (internal citation
omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct.
423, 426, 88 L. Ed. 2d 371 (1985)). The University contends that
in extending the ADEA to the states, Congress satisfied neither of
these prongs.
A
Congress’s intent to abrogate state sovereign immunity “must
be obvious from ‘a clear legislative statement.’” Seminole Tribe,
517 U.S. at 55, 116 S. Ct. at 1123 (quoting Blatchford v. Native
Village of Noatak, 501 U.S. 775, 786, 111 S. Ct. 2578, 2584, 115 L.
Ed. 2d 686 (1991)). Congress may abrogate state sovereign immunity
4
Here, the University has not consented to suit.
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“only by making its intention unmistakably clear in the language of
the statute.” Id. at 56, 116 S. Ct. at 1123 (quoting Dellmuth v.
Muth, 491 U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989)). “A
general authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the Eleventh
Amendment.” Dellmuth v. Muth, 491 U.S. at 231, 109 S. Ct. at 2402,
105 L. Ed. 2d 181 (1989) (quoting Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 246, 105 S. Ct. 3142, 3149, 87 L. Ed. 2d 171
(1985)). Instead, both the text and structure of the statute must
“make[] it clear that the State is the [intended] defendant to the
suit.” Seminole Tribe, 517 U.S. at 57, 116 S. Ct. at 1124.
Congress is not required, however, to “explicitly reference to
state sovereign immunity or the Eleventh Amendment.” Dellmuth, 491
U.S. at 233, 109 S. Ct. at 2403 (Scalia, J., concurring).
As originally passed, the ADEA was enacted pursuant to the
Commerce Clause and applied only to private sector employers. Age
Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81
Stat. 602 (codified as amended at 29 U.S.C. § 621 et seq.). In
1974, Congress amended the ADEA (the “1974 Amendment”) to cover
state and local government employees by expanding the definition of
“employer” to include “a State or political subdivision of a State
and any agency or instrumentality of a State.”5 Fair Labor
5
At the same time, Congress also amended the definition of
“employee” to include “employees subject to the civil service laws
of a State government.” Fair Labor Standards Amendments of 1974,
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Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a)(2), 88
Stat. 55, 74 (codified as amended at 29 U.S.C. § 630(b)(2)). We
find that this reference to the “State” in the 1974 Amendment
evidences a clear statement that Congress intended to subject the
states to suit in federal court. See Ramirez v. Puerto Rico Fire
Serv., 715 F.2d 694, 701 (1st Cir. 1983) (“[T]he ADEA’s express
authorization for the maintenance of suit against state employers
comprises adequate evidence to demonstrate the congressional will
that Eleventh Amendment immunity be abrogated.”).
Further compelling evidence of Congress’s intent to abrogate
the states’ sovereign immunity is the ADEA’s enforcement provision
and its explicit incorporation of the enforcement provision of the
Fair Labor Standards Act (“FLSA”). The ADEA section, 29 U.S.C. §
626(b), provides that “[t]he provisions of this chapter shall be
enforced in accordance with the powers, remedies, and procedures
provided in . . . § 216 (except for subsection (a) thereof) . . .
and subsection (c) of this section.”6 Section 216(b) provides in
pertinent part that “[a]n action to recover the liability
prescribed . . . may be maintained against any employer (including
a public agency) in any Federal or State court of competent
Pub. L. No. 93-259, § 28(a)(4), 88 Stat. 55, 74 (codified as
amended at 29 U.S.C. § 630(f)).
6
Section 626(c)(1) provides: “Any person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes of
this chapter.”
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jurisdiction by any one or more employees.”7 29 U.S.C. § 216(b).
“Public agency” is defined in 29 U.S.C. § 203(x) as including “the
government of a State or political subdivision thereof.” See Hurd,
109 F.3d at 1544 n.3 (holding that Congress clearly intended to
abrogate state immunity for ADEA, reasoning, in part, that “the
[FLSA] enforcement provisions which the ADEA now references
specifically authorize ADEA suits in federal court”).
Accordingly, we hold that the language of § 626(b) and §
216(b) in conjunction with the specific extension of the ADEA to
state employers unequivocally expresses Congress’s intent that
state employers may be sued under the ADEA in federal courts. See
7
In Employees of Department of Public Health & Welfare v.
Department of Public Health & Welfare, Missouri, 411 U.S. 279, 93
S. Ct. 1614, 36 L. Ed. 2d 251 (1973), the Supreme Court affirmed
the district court’s dismissal of plaintiffs’ FLSA suit on the
grounds of Eleventh Amendment immunity. Following that decision,
Congress amended § 216(b) to its current form “to make it clear
that suits by public employees to recover unpaid wages and
liquidated damages under such section may be maintained in a
Federal or State court of competent jurisdiction” and to “overcome”
the Supreme Court’s decision in Employees. H.R. Rep. No.93-913, at
45 (1974). That section had previously read that an “[a]ction to
recover such liability may be maintained in any court of competent
jurisdiction.”
The University argues that Congress’s failure to make the same
change to the jurisdictional section of the ADEA that it did to §
216(b) of FLSA))even though the amendment to § 216(b) was part of
the same amendment that extended the ADEA to the states))implies
that Congress did not intend to abrogate states’ Eleventh Amendment
immunity from suit under the ADEA. Compare 29 U.S.C. § 216(b) with
29 U.S.C. § 626(c)(1). In making this argument, however, the
University fails to discuss § 216(b) of FLSA or, more importantly,
the ADEA’s explicit incorporation of that section in the ADEA
through § 626(b). We therefore find the University’s argument
unpersuasive.
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Goshtasby, 141 F.3d at 766 (concluding that “‘[u]nless Congress had
said in so many words that it was abrogating the states’ sovereign
immunity in age discrimination cases))and that degree of
explicitness is not required))it could not have made its desire to
override the states’ sovereign immunity clearer’”) (quoting
Davidson v. Board of Governors of State Colleges & Univs. for W.
Ill. Univ., 920 F.2d 441, 443 (7th Cir.1990)).
B
Having decided that Congress intended to abrogate the states’
Eleventh Amendment immunity in extending ADEA coverage to the
states, we next consider whether in doing so Congress acted
“pursuant to a valid exercise of power.”8 Seminole Tribe, 517 U.S.
at 55, 116 S. Ct. at 1123. In Seminole Tribe, the Court concluded
that Congress has constitutional authority to abrogate the Eleventh
Amendment immunity of the states through its powers under § 5 of
the Fourteenth Amendment, but not through its powers under the
Commerce Clause. Id. at 59, 66, 116 S. Ct. at 1125, 1128
(overruling Pennsylvania v. Union Gas, 491 U.S. 1, 109 S. Ct. 2273,
8
Neither the Supreme Court nor our circuit has decided
whether the 1974 Amendment may be upheld as a valid exercise of
Congress’s power under § 5 of the Fourteenth Amendment. The
Supreme Court specifically declined to decide this issue in EEOC v.
Wyoming, 460 U.S. 226, 243, 103 S. Ct. 1054, 1064, 75 L. Ed. 2d 18
(1983) (holding that “[t]he extension of the ADEA to cover the
state and local governments . . . was a valid exercise of Congress’
powers under the Commerce Clause,” and concluding that the Court
“need not decide whether it could also be upheld as an exercise of
Congress’ powers under § 5 of the Fourteenth Amendment”).
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105 L. Ed. 2d 1 (1989)). We must determine, therefore, whether the
extension of ADEA coverage to the states was a valid exercise of
Congress’s powers under § 5 of the Fourteenth Amendment.
At the outset, we reject the University’s contention that
Congress’s enforcement powers under § 5 are limited to suspect
classifications. Coolbaugh clearly establishes that Congress’s §
5 enforcement powers are not limited to suspect classifications.
See Coolbaugh, 136 F.3d at 433-34 (reaching this conclusion in
determining that Congress abrogated the states’ Eleventh Amendment
immunity in enacting the Americans with Disabilities Act (“ADA”));
see also Goshtasby, 141 F.3d at 770 (“The fact that age is not a
suspect qualification does not foreclose Congress from enforcing
the Equal Protection Clause through an enactment protecting against
arbitrary and invidious age discrimination.”).
Congress did not explicitly state that it was enacting the
1974 Amendment pursuant to § 5 of the Fourteenth Amendment. The
University accordingly argues that because Congress did not mention
the Fourteenth Amendment in the 1974 Amendment to the ADEA, it was
not acting pursuant to its § 5 enforcement powers. It is true
that, as the Supreme Court has warned, “we should not quickly
attribute to Congress an unstated intent to act under its authority
to enforce the Fourteenth Amendment.” Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S. 1, 16, 101 S. Ct. 1531, 1539, 67 L. Ed. 2d
694 (1981). However, contrary to the University’s assertion,
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Congress need not “recite the words ‘section 5’ or ‘Fourteenth
Amendment’ or ‘equal protection,’ for ‘[t]he . . .
constitutionality of action taken by Congress does not depend on
recitals of the power which it undertakes to exercise.” EEOC v.
Wyoming, 460 U.S. 226, 243 n.18, 103 S. Ct. 1054, 1064 n.18, 75 L.
Ed. 2d 18 (1983) (quoting Woods v. Cloyd W. Miller Co., 333 U.S.
138, 144, 68 S. Ct. 421, 424, 92 L. Ed. 2d 596 (1948)). Instead,
we look to the structure of the ADEA as well as its legislative
history in determining whether Congress relied on its § 5
enforcement power to enact the 1974 Amendment. See Goshtasby, 141
F.3d at 766-68; see also Coolbaugh, 136 F.3d at 435-37 (reviewing
Congressional findings and legislative history of ADA in
determining that Congress acted within its § 5 enforcement power in
enacting the ADA).
In City of Boerne v. Flores, ___U.S.___, 117 S. Ct. 2157,
2163, 138 L. Ed. 2d 624 (1997), the Supreme Court reiterated that
the Congress’s § 5 enforcement power encompasses legislation that
carries out the objectives of the Fourteenth Amendment. Moreover,
it clarified that “[l]egislation which deters or remedies
[Fourteenth Amendment] constitutional violations can fall within
the sweep of Congress’ enforcement power even if in the process it
prohibits conduct which is not itself unconstitutional and intrudes
into ‘legislative spheres of autonomy previously reserved to the
States.’” Id. (quoting Fitzpatrick, 427 U.S. at 455, 96 S. Ct. at
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2671). Thus, as the Flores Court reaffirmed, Congress has, under
its § 5 enforcement power, “the authority to both remedy and
prevent constitutional violations.” Coolbaugh, 136 F.3d at 434;
see also Flores, ___ U.S. at ___, 117 S. Ct. at 2164 (emphasizing
that Congress’s § 5 enforcement power, which the Court has
described as remedial, is limited to enforcing the provisions of
the Fourteenth Amendment).
In Coolbaugh, we concluded that “Congress is authorized to
adopt legislation that remedies or prevents unconstitutional
conduct, provided there is a ‘congruence and proportionality
between the injury to be prevented or remedied and the means
adopted to that end.’” Coolbaugh, 136 F.3d at 435 (quoting Flores,
___ U.S. at ___, 117 S. Ct. at 2164). We are guided in our
determination of this issue by the two-part proportionality inquiry
set out in Coolbaugh, where we explained that “[t]his
proportionality inquiry has two facets: the extent of the
threatened constitutional violations, and the scope of the steps
provided in the legislation to remedy or prevent such violations.”
Coolbaugh, 136 F.3d at 435. To determine “the extent of the
threatened constitutional violations”))the first prong of the
proportionality test))we examine Congress’s findings regarding the
evils it was addressing in passing the ADEA. As stated in the
ADEA’s preamble, Congress found that “in the face of rising
productivity and affluence, older workers find themselves
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disadvantaged in their efforts to retain employment, and especially
to regain employment when displaced from jobs.” 29 U.S.C. §
621(a)(1). It further found that “the setting of arbitrary age
limits regardless of potential for job performance has become a
common practice, and certain otherwise desirable practices may work
to the disadvantage of older persons.”9 29 U.S.C. § 621(a)(2).
Congress concluded that “[i]t is therefore the purpose of this Act
to promote employment of older persons based on their ability
rather than age; to prohibit arbitrary age discrimination in
employment; to help employers and workers find ways of meeting
problems arising from the impact of age on employment.” 29 U.S.C.
§ 621(b). In addition to these statements by Congress, the
Secretary of Labor reported the following, based on “the extensive
factfinding undertaken by the Executive Branch and Congress” prior
9
Congress also set forth the following additional
findings:
(3) the incidence of unemployment, especially
long-term unemployment with resultant
deterioration of skill, morale, and employer
acceptability is, relative to the younger
ages, high among older workers; their numbers
are great and growing; and their employment
problems grave;
(4) the existence in industries affecting
commerce, of arbitrary discrimination in
employment because of age, burdens commerce
and the free flow of goods in commerce.
29 U.S.C. § 621(a).
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to the enactment of the ADEA:
Although age discrimination rarely was based on the sort
of animus motivating some other forms of discrimination,
it was based in large part on stereotypes unsupported by
objective fact, and was often defended on grounds
different from its actual causes. . . . Moreover, the
available empirical evidence demonstrated that arbitrary
age lines were in fact generally unfounded and that, as
an overall matter, the performance of older workers was
at least as good as that of younger workers.
Wyoming, 460 U.S. at 231, 103 S. Ct. at 1057 (citing Report of the
Secretary of Labor, The Older American Worker: Age Discrimination
in Employment (1965)).
Although the legislative history of the 1974 Amendment is
somewhat sparse, it evidences that “Congress subsequently
established that these same conditions existed in the public
sector.” Goshtasby, 141 F.3d at 772 (citing S. Rep. No. 93-846, at
112 (1974); 118 Cong. Rec. 7,745 (1972) (remarks of Sen.
Bentsen)10). Congress indicated its purpose in passing the 1974
10
In introducing a prior, unsuccessful bill extending
coverage of the ADEA to federal, state, and local employees,
Senator Bentsen made the following remarks:
[T]here are strong indications that the hiring and firing
practices of government units discriminate against the
elderly, frequently pressuring them into retiring before
their productive days are over. . . . [W]hatever the
form, the pressures directed against older Government
employees constitute flagrant examples of age
discrimination in employment, and as such, they should be
outlawed. . . . Quite apart from any economic arguments,
the central issue is whether we want to give older
workers a feeling that they can still contribute, that
their age is no bar to a productive life. If we fail to
give our older citizens an equal chance in employment
decisions, we may add to the feeling of uselessness which
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Amendment by quoting the following remarks:
As the President said in his message of March 23, 1972,
supporting such an extension of coverage under the ADEA:
“Discrimination based on age))what some people call
‘age-ism’))can be as great an evil in our society as
discrimination based on race or religion or any other
characteristic which ignores a person’s unique status as
an individual and treats him or her as a member of some
arbitrarily-defined group. Especially in the employment
field, discrimination based on age is cruel and
self-defeating; it destroys the spirit of those who want
to work and it denies the Nation[] the contribution they
could make if they were working.”
H.R. Rep. No. 93-913, at 40-41 (1974). Senator Bentsen made the
following remarks regarding the 1974 Amendment: “The passage of
this measure insures that Government employees will be subject to
the same protections against arbitrary employment based on age as
are employees in the private sector.” 120 Cong. Rec. S8,768
(1974).
Giving these congressional findings the substantial deference
that we must, see Coolbaugh, 136 F.3d at 435, we find that the
legislative history of the ADEA supports Congress’s findings that
discrimination on the basis of age presented a serious and common
problem. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.
Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) (“Congress’ promulgation
of the ADEA was prompted by its concern that older workers were
being deprived of employment on the basis of inaccurate and
is so prevalent among older Americans today.
118 Cong. Rec. S7,745-46 (1972).
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stigmatizing stereotypes.”); EEOC v. Elrod, 674 F.2d 601, 604 (7th
Cir. 1982) (holding that the legislative history of the ADEA
supports a conclusion that the purpose of the ADEA was “to prohibit
arbitrary, discriminatory conduct that is the very essence of the
guarantee of ‘equal protection of the laws’ of the Fourteenth
Amendment”).
The remaining part of our inquiry is “whether the scope of the
[ADEA] is so ‘sweeping’ that the statute cannot be seen as
proportional to the evil Congress sought to address.” Coolbaugh,
136 F.3d at 437. In Goshtasby, the Seventh Circuit summarized the
scope of the ADEA as follows:
The purpose of the ADEA is “to prohibit arbitrary age
discrimination in employment.” The ADEA attempts to
redress and prevent discrimination and stereotyping of
older Americans by requiring that determinations be based
on merit. See Hazen Paper Co., 507 U.S. at 611, 113 S.
Ct. at 1706 (“The employer cannot rely on age as a proxy
for an employee’s remaining characteristics, such as
productivity, but must instead focus on those factors
directly.”). Thus, the ADEA requires personalized
determinations based on facts. If however, youth is a
bona fide occupational qualification that is reasonably
necessary to the normal operation of the particular
business, an employer may use age as a criterion for
employment decisions. . . . The ADEA, as applied by the
courts, ferrets out instances of arbitrary age
discrimination.
Goshtasby, 141 F.3d at 772 (citations omitted). As the Seventh
Circuit opined, “unlike the statute at issue in Flores, which
imposed ‘the most demanding test known to constitutional law,’ the
ADEA is narrowly drawn to protect older citizens from arbitrary and
capricious action by the state.” Id. We agree and, therefore,
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cannot conclude that the remedies imposed by the ADEA “are too
sweeping to survive the Flores proportionality test for legislation
that provides a remedy for unconstitutional discrimination or
prevents threatened unconstitutional actions.” Coolbaugh, 136 F.3d
at 438. We accordingly hold that the ADEA represents a valid
exercise of Congress’s § 5 enforcement power under the Fourteenth
Amendment. Thus, the University is not entitled to Eleventh
Amendment immunity from suit under the ADEA.
III
The University moved for judgment as a matter of law on
Scott’s claim of age discrimination at the close of Scott’s case,
at the close of all the evidence, and after the verdict. On
appeal, the University contends that the district court erred in
denying these motions because Scott presented insufficient evidence
that age was a determinative factor in its 1993 hiring decision.
A
We review a district court’s denial of a motion for judgment
as a matter of law de novo. See Travis v. Board of Regents of the
Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997), cert.
denied, ___U.S.___, 118 S. Ct. 1166, 140 L. Ed. 2d 176 (1998). “A
motion for judgment as a matter of law . . . in an action tried by
jury is a challenge to the legal sufficiency of the evidence
supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d
359, 367 (5th Cir. 1997), cert. denied, ___U.S.___, 118 S. Ct. 603,
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139 L. Ed. 2d 491 (1997) (internal quotations and citation
omitted). We test jury verdicts for sufficiency of the evidence
under the standards set forth in Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir. 1969) (en banc), overruled on other grounds,
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)
(en banc), viewing all the evidence and drawing all reasonable
inferences in the light most favorable to the verdict. Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc)
(quoting Boeing, 411 F.2d at 374).
Under Boeing, there must be a conflict in substantial evidence
to create a jury question. Thus, a court should grant a motion for
judgment as a matter of law “not only when the non-movant presents
no evidence, but also when there is not a sufficient ‘conflict in
substantial evidence to create a jury question.’” Travis, 122 F.3d
at 263 (quoting Boeing, 411 F.2d at 374). “Substantial evidence is
defined as ‘evidence of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment might reach
different conclusions.’” Rhodes, 75 F.3d at 993 (quoting Boeing,
411 F.2d at 374). “A mere scintilla of evidence is insufficient to
present a question for the jury.” Boeing, 411 F.2d at 374.
We apply the burden-shifting framework expounded by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.
-19-
Ed. 2d 207 (1981), to ADEA cases. See Rhodes, 75 F.3d at 992-93.
When a case has been fully tried on the merits, however, “we need
not parse the evidence into discrete segments corresponding to” the
different stages of the McDonnell Douglas-Burdine framework.
Travis, 122 F.3d at 263. Instead, applying Boeing’s sufficiency of
the evidence standards, we examine whether the plaintiff has met
her ultimate burden of proving that the employer discriminated
against her because of age. See id.
A plaintiff need not, however, provide direct evidence to
sustain a jury finding of discrimination. See Rhodes, 75 F.3d at
993. “Because direct evidence is rare in discrimination cases, a
plaintiff must ordinarily use circumstantial evidence to satisfy
her burden of persuasion.” Id. Circumstantial evidence must be
such, however, “as to allow a rational factfinder to make a
reasonable inference that age was a determinative reason for the
employment decision.” Id. Moreover, to give rise to such an
inference of discrimination, the employee must provide some
evidence, direct or circumstantial, to rebut each of the employer’s
proffered reasons and allow the jury to infer that the employer’s
explanation was a pretext for discrimination. See Swanson v.
General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir. 1997), cert.
denied, ___U.S.___, 118 S. Ct. 366, 139 L. Ed. 2d 284 (1997); EEOC
v. Texas Instruments Inc., 100 F.3d 1173, 1180 (5th Cir. 1996).
“The trier of fact may not simply choose to disbelieve the
-20-
employer’s explanation in the absence of any evidence showing why
it should do so.” Swanson, 110 F.3d at 1185.
Although “[i]n tandem with a prima facie case, the evidence
allowing rejection of the employer’s proffered reasons will often,
perhaps usually, permit a finding of discrimination without
additional evidence,” Rhodes, 75 F.3d at 994, it does not always
do so. See Travis, 122 F.3d at 263 (explaining that even if a
plaintiff’s evidence “permit[s] a tenuous inference of pretext and,
by extension, discrimination,” the evidence may “be insufficient as
a matter of law to support a finding of discrimination”). “[A]
jury issue will be presented and a plaintiff can avoid . . .
judgment as a matter of law if the evidence taken as a whole (1)
creates a fact issue as to whether each of the employer’s stated
reasons was what actually motivated the employer and (2) creates a
reasonable inference that age was a determinative factor in the
actions of which plaintiff complains.” Rhodes, 75 F.3d at 994. On
the other hand, an employer will be entitled to judgment as a
matter of law “if the evidence taken as a whole would not allow a
jury to infer that the actual reason for the [employer’s decision]
was discriminatory.” Rhodes, 75 F.3d at 994.
B
With these principles in mind, we turn to the case at hand.
Arguing that there is no evidence to support the jury’s verdict of
discrimination, the University characterizes this case as the
-21-
proverbial second-guessing of its decision that Gullick was more
qualified than Scott. The University consistently asserted
throughout trial))and continues to argue on appeal))that while Scott
was highly qualified for the legal writing specialist position, she
was simply not the most qualified. As the University has
repeatedly pointed out, and Scott has not disputed, the committee
ranked Scott third out of the twenty-six applicants for the 1993
hiring and would have offered the position to Scott if Gullick had
refused the offer and Scott’s reference check was satisfactorily
concluded.
Scott contends that she did in fact present sufficient
evidence of age discrimination. Scott first claims that the
University’s reasons for not hiring her were pretextual, thus
providing circumstantial evidence of discrimination. Scott further
argues that, apart from the evidence specifically refuting the
University’s reasons for not hiring her, she presented other direct
and circumstantial evidence showing that the University’s decision
was motivated by age. We address in turn the various components of
Scott’s evidence.
1
In support of its 1993 hiring decision, the University
produced several reasons why the committee ranked Gullick second
and Scott third. At trial, three of the four members of the 1993
hiring committee testified as to their reasons for ranking Gullick
over Scott. All three emphasized Gullick’s four and a half years
-22-
of federal district court clerkship experience, viewing that
favorably over Scott’s one-year Mississippi Supreme Court justice
clerkship. Bush in particular valued this credential, considering
a federal clerkship to be the “best apprenticeship you can have for
teaching law at any level.” The members also cited Gullick’s very
favorable letters of recommendation; Bush noted that the three
judges for whom Gullick had worked had given her strong letters of
recommendation. The committee members considered the quality and
extent of Gullick’s legal writing experience to be superior to
Scott’s, a criterion they all considered crucial for the position.
In addition to the writing experience she gained while clerking,
they emphasized her experience writing briefs on a contract basis
for attorneys in Memphis. Pittman noted that Gullick had written
and argued briefs during this time, even arguing at least one
before the Sixth Circuit. Finally, although they all thought Scott
interviewed well, they believed Gullick’s interview to be stronger
than Scott’s. Testifying that Gullick came across as “very
enthusiastic” and “forceful” in her interview, Pittman viewed her
interview and work experience so favorably that at one time he
considered ranking Gullick over even Shelson. Although Bush noted
that Scott gave one of the better interviews of the finalists, he
praised Gullick as being very outgoing and very assertive,
resulting in a strong interview. While the committee members
viewed Scott’s Ph.D. and prior college-level teaching experience
very positively, considering the latter to be much more extensive
-23-
than Gullick’s two years of high school teaching, they found these
other reasons to warrant ranking Gullick one notch above Scott.
Several of these reasons were included in the Affirmative
Action report the Law School filed with the University’s
Affirmative Action office. The report, which was completed and
submitted after the initial ranking, explained first why Shelson
was selected. The report then explained why other applicants were
deselected.11 With respect to Gullick, the report stated:
Ms. Gullick had significant legal writing experience both
as a law clerk for four years at the trial court level
and as a practicing attorney, but she had no significant
teaching experience. Ms. Gullick has written briefs and
has argued at least one federal appellate case. She had
a strong interview, but lacks significant teaching
experience.
11
Scott argues that the reasons provided by the University
other than in the Affirmative Action report are highly suspect,
post hoc rationalizations. This contention is easily rejected.
The Affirmative Action report undisputedly describes the reasons
Shelson was selected over the other candidates. Moreover, Scott
presents no evidence that the explanations given by the committee
members for ranking Gullick second and Scott third were not the
members’ legitimate reasons at the time of their decision. See
EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1445-46
(5th Cir. 1995) (rejecting EEOC’s argument that the standards used
by the employer in making its promotion decision were post hoc
rationalizations: “[W]e decline to substitute our judgment for the
employer in evaluating what types of experience are most valuable
for an employee in the new position in the absence of proof that
the standards were not consistently applied or were so irrational
or idiosyncratic as to suggest a cover-up.”); cf. Lloyd v. Georgia
Gulf Corp., 961 F.2d 1190, 1195 & n.7 (5th Cir. 1992) (explaining
that jury could reasonably infer that employer’s explanation of
poor performance was “‘an after the fact inspiration triggered by
the necessity of fending off litigation” when no supporting
documentation of poor performance existed in employee’s personnel
file) (quoting Walther v. Lone Star Gas Co., 952 F.2d 119, 124 (5th
Cir. 1992)).
-24-
With respect to Scott, the report stated:
Although Ms. Scott has a substantial amount of English
teaching experience and one year of clerking at the
appellate level, she had no teaching experience in legal
writing. Moreover, Ms. Scott has never worked in the
class room with collaborative groups, which is a
significant part of the pedagogy of the Legal Writing
Program.
Citing all of these reasons, the University adamantly contends that
Scott simply presented no evidence showing that these sound,
professional reasons, or the committee’s reliance on them, were
false, let alone a pretext for age discrimination.
Scott disagrees, claiming that she established a genuine issue
for trial about the legitimacy of each of the nondiscriminatory
reasons offered by the University for ranking Gullick over her.
She first challenges the Affirmative Action report’s statement that
Scott was deselected because she had neither taught legal writing
nor worked with collaborative groups. Scott claims that these
reasons are pretexts for discrimination because Gullick had not
taught legal writing either, Robertshaw did not even ask Gullick
about collaborative groups, and Robertshaw testified that
collaborative groups were not that important and that there was
nothing particularly difficult about them. The University responds
by pointing out that the Affirmative Action report to which Scott
refers sets forth the University’s reasons why Shelson was selected
and the other applicants were deselected,12 not why Gullick was
12
Shelson was the only candidate who had previously taught
legal writing, and, according to the report (as well as the
-25-
selected and Scott deselected))a fact that Scott does not dispute.
Thus, the University argues, Scott does not effectively refute its
reasons for preferring Gullick over Scott and, in fact, merely
restates the reasons why it preferred Shelson over Scott and
Gullick. We agree.
Scott next challenges the University’s explanation that
Gullick had more extensive legal writing and research experience.
She attempts to rebut this explanation by pointing out that she was
teaching legal research to first-year law students at the time of
the 1993 hiring and that she had more than ten years experience
teaching college-level English. She also argues that the
committee’s ranking of Gullick over Scott based on writing skills
could not be true because the committee made its initial ranking
without the benefit of Scott’s writing samples.
At the outset, we note that neither the Affirmative Action
report nor the committee members’ testimony indicates that the
committee members’ testimony), this was the primary reason the
committee ranked Shelson over Gullick and Scott. The record
indicates that the fact that Scott had no experience teaching with
collaborative groups was relevant to the comparison of Scott to
Shelson. Robertshaw explained at trial that she asked Scott about
her experience with collaborative groups to determine the relevance
of her prior teaching experience to the legal writing position.
Furthermore, nothing in the record indicates that any of the
committee members ever contended that Gullick’s teaching experience
was a plus factor for Gullick. In fact, Robertshaw explained that
she did not ask Gullick about collaborative group teaching because
Gullick’s only experience teaching was at the high school level,
something which all of the committee members testified weighed
against her when compared to Scott.
-26-
committee cited Gullick’s research skills as a reason for ranking
Gullick over Scott. Thus, any attempt Scott makes to rebut such a
reason is irrelevant. The University did, of course, repeatedly
mention legal writing experience as a basis for ranking Gullick
over Scott. Scott’s first two reasons here))her experience
teaching English and her experience teaching legal research))do
not, however, cast suspicion on the committee’s opinion that
Gullick’s legal writing experience was superior to Scott’s
experience and instead present only a mismatched comparison.
With respect to the writing samples, the record indicates that
Scott submitted her writing samples to the committee shortly after
its June 14th meeting, at which time the committee ranked the
finalists.13 The relevancy of this fact to the committee’s stated
13
Bush, one of the committee members, was responsible for
informing the interviewees that they had been selected for an
interview. He was to tell them at the time he scheduled their
interviews that they needed to provide the committee with writing
samples when they arrived for their interview. Bush testified that
he forgot to tell Scott to bring a writing sample to the interview.
He explained that when he invited the other candidates, he did so
on the telephone from his office, where he referred to a list of
things he wanted to tell the candidates; when he informed Scott of
her selection for an interview, however, he walked downstairs to
the library and did not have his list for reference. Scott
testified that she was asked for her writing samples at her
interview, which was on a Thursday, but was not able to give them
to the committee until Monday because she had to go home to
Gulfport to retrieve them.
The committee met on the morning of that Monday, June 14th.
The record indicates that while the rankings made at that meeting
were subject to certain contingencies, including, among other
things, reference checks of the top two candidates, these rankings
were approved by the Dean and remain unchanged as a result of the
reference checks and the resolution of the other contingencies.
-27-
reasons for its decision is, however, not evident. The reason
offered by the University for ranking Gullick over Scott was the
quality of Gullick’s legal writing experience as compared to
Scott’s. The record indicates that the committee members based
their opinions of Gullick’s legal writing experience on Gullick’s
federal clerkship experience, her subsequent brief-writing work,
and her letters of recommendation))none of which Scott is able to
rebut. Moreover, the only trial testimony elicited of the
committee members regarding their consideration of writing samples
was Robertshaw’s testimony that although she reviewed some of
Gullick’s writing samples, she read Scott’s writing samples at
about the same time she read Gullick’s.14 For these reasons, we
conclude that Scott has failed to present evidence rebutting the
University’s reliance on Gullick’s legal writing experience in
ranking Gullick over Scott.
Scott is unable to present evidence refuting any of the
University’s other reasons for ranking Gullick over Scott. Most
notably, she does not attempt to refute the committee’s reliance on
Gullick’s federal clerkship experience, which was arguably the
committee members’ primary reason for ranking Gullick over Scott,
other than by introducing statements that a Mississippi Supreme
14
With respect to her opinion of the writing samples,
Robertshaw testified that while Scott’s writing samples were
“pretty good,” they did not affect her opinion of Scott’s ranking
in relation to Gullick, who submitted a brief that Gullick wrote
for an appeal to the Sixth Circuit and that Robertshaw considered
“very outstanding.”
-28-
Court clerkship is comparable to a federal clerkship. In fact, in
her brief, Scott concedes that Gullick possessed this qualification
and she did not. “Where the plaintiff has offered no evidence to
rebut the employer’s facially benign explanations, no inference of
discrimination can be drawn.” EEOC v. Louisiana Office of
Community Servs., 47 F.3d 1438, 1447 (5th Cir. 1995); see also id.
at 1448 (“[T]he only evidence [of discriminatory intent] is the
EEOC’s own speculation that age motivated the decision not to
promote Fisher. We have consistently held that an employee’s
subjective belief of discrimination, however genuine, cannot be the
basis of judicial relief.”).
Despite this lack of evidence rebutting the University’s
proffered legitimate, nondiscriminatory reasons for ranking Gullick
second and her third, Scott claims that not only was she better
qualified than Gullick, she was clearly better qualified.
Specifically, she claims that the jury could have found that her
Ph.D. in English, Masters in Library Science, college teaching
experience, Mississippi Supreme Court clerkship, and experience
teaching legal research to law students compared to Gullick’s B.A.
in English, federal clerkship, and two years teaching high school
made Scott so clearly better qualified that the University’s
reasons for not selecting Scott must have been pretexts for age
discrimination.
We have held that “a plaintiff can take his case to a jury
-29-
with evidence that he was clearly better qualified than younger
employees” who were selected for the position at issue.15 Walther
v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992) (emphasis
added); see also Louisiana Office of Community Servs., 47 F.3d at
1444 (“A factfinder can infer pretext if it finds that the employee
was ‘clearly better qualified’ (as opposed to merely better or as
qualified) than the employees who are selected.”). “However, this
evidence must be more than merely subjective and speculative.”
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).
“To establish a fact question as to relative qualifications, a
plaintiff must provide sufficiently specific reasons for his
opinion; mere subjective speculation will not suffice.” Id.
Moreover, in pursuing this inquiry, we recognize that “the judicial
system is not as well suited by training and experience to evaluate
qualifications . . . in other disciplines as are those persons who
have trained and worked for years in that field of endeavor for
which the applications under consideration are being evaluated.”
Louisiana Office of Community Servs., 47 F.3d at 1445. Thus,
15
In Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 n.8
(5th Cir. 1993), we questioned whether this proposition remains
viable in light of the Supreme Court’s decision in St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407
(1993) because “[a]rguably, evidence showing the plaintiff was
‘clearly better qualified’ establishes only that the employer’s
proffered reasons were pretextual and not that they were a pretext
for age discrimination, as required by St. Mary’s.” Because we
conclude that Scott has failed to present evidence that she was
clearly better qualified than Gullick, we need not reach that
question today.
-30-
“[u]nless disparities in curricula vitae are so apparent as
virtually to jump off the page and slap us in the face, we judges
should be reluctant to substitute our views for those of the
individuals charged with the evaluation duty by virtue of their own
years of experience and expertise in the field in question.” Id.
To support her assertion that she was clearly better qualified
than Gullick, Scott presents her testimony and the testimony of
Mark Baggett, her expert.16 Scott testified that she had a Ph.D.
and a Masters degree in English in addition to her law degree,
while Gullick had only a law degree. She cited her extensive
teaching experience compared to Gullick’s two years of teaching
high school. She also compared her Mississippi Supreme Court
clerkship to Gullick’s federal clerkship, concluding that her
clerking experience was superior to Gullick’s. She also noted that
one of the two professors as well as a group of students who gave
their opinions of the candidates to the committee ranked her one
ahead of Gullick. (The other professor listed both Gullick and
Scott in his top three, but did not rank them within that group.).
Scott also points to the testimony of her expert, Mark
Baggett, who teaches English literature and composition in the
English department as well as legal writing and research in the law
school at Cumberland University. Baggett stated that Scott was
16
On appeal, the University challenges the admission of
Baggett’s testimony regarding the 1993 hiring on three grounds.
Because we reverse the judgment entered in favor of Scott on the
age discrimination claim, we need not consider these arguments.
-31-
“clearly better qualified” for the legal writing position than
Gullick. He based this decision primarily on Scott’s Ph.D. in
English because it requires a dissertation, which he described as
a very rigorous writing project, and involves teaching. He also
cited her experience in private practice, her degree in Library
Science, and her job as reference librarian at the Law School’s
library as further supporting his opinion. Finally, Baggett
testified that a State Supreme Court clerkship and a federal
clerkship are generally comparable in the extent of legal research
and writing.
The University contends that Scott’s evidence, including her
and Baggett’s testimony, did nothing more than present a difference
of opinion as to whether Scott or Gullick was better qualified for
the job and, therefore, did not establish either directly or
through inference that the University intentionally refused to hire
Scott because of her age. We agree. Their testimony, as well as
our review of the resumes and other documents included in the
record, is insufficient evidence that Scott was clearly better
qualified and, therefore, does not suffice to present a jury
question as to pretext.17 Scott’s comparison of her qualifications
17
We note that Baggett’s statement that Scott was “clearly
better qualified” for the legal writing position cannot by itself
be sufficient to create a jury question on discrimination; like
Scott, Baggett must present specific reasons supporting this
conclusion. Cf. Nichols, 81 F.3d at 42 (“To establish a fact
question as to relative qualifications, a plaintiff must provide
sufficiently specific reasons for his opinion.”).
-32-
with Gullick’s simply does not reveal any “glaring distinction”
that would reasonably support a conclusion that she was clearly
better qualified than Gullick. See Odom v. Frank, 3 F.3d 839, 846
(5th Cir. 1993) (“Their respective statements of ‘specific
qualifications’ are quite different, but neither is particularly
more impressive than the other. A careful and objective comparison
of Price’s and Odom’s applications reveals no glaring distinction
that would support a finding that Odom was ‘clearly better
qualified than [Price] for the . . . position.’”). We note first
that in comparing her qualifications to Gullick’s, Scott
understates Gullick’s qualifications. She refers to Gullick’s four
and a half years of federal clerkship experience merely as a
“federal clerkship” and does not even mention, for example,
Gullick’s other legal writing experience. Scott’s teaching
experience is, of course, much more extensive than Gullick’s. On
the other hand, the record reveals that Gullick had more extensive
legal writing experience; for example, the record indicates that
Gullick had significant brief-writing experience, while Scott
testified that she had written only one brief other than the briefs
she had written for this lawsuit. Furthermore, like Scott’s,
Baggett’s comparison of Scott’s qualifications with Gullick’s
simply does not reveal any “glaring distinction” that would
reasonably support a conclusion that Scott was clearly better
qualified or, more importantly, that the University discriminated
-33-
against Scott on the basis of age.18 In fact, his testimony
undermined Scott’s in one respect: while she claimed that her
clerkship was superior to Gullick’s, Baggett testified that they
were comparable.
In sum, we conclude that Scott’s qualifications are not “so
superior” to those of Gullick’s “to allow an inference of pretext.”
Louisiana Office of Community Servs., 47 F.3d at 1445. We see no
“disparities in curricula vitae [that] are so apparent as virtually
to jump off the page and slap us in the face.” Id.; see also Odom
v. Frank, 3 F.3d 839, 847 (5th Cir. 1993) (“We find that neither
singly nor collectively do Odom’s qualifications leap from the
record and cry out to all who would listen that he was vastly))or
even clearly))more qualified for the subject job than was Price.”).
Disagreements over which applicant is more qualified are employment
decisions in which we will not engage in the practice of second
guessing. See Bienkowski v. American Airlines, Inc., 851 F.2d
1503, 1507-08 (5th Cir. 1988) (“The ADEA was not intended to be a
18
This conclusion is bolstered by the fact that the
district court qualified Baggett as an expert only in legal
writing, explicitly limiting Baggett to testifying about legal
writing ability (specifically, Scott’s legal writing ability as
compared to Gullick’s), and not about hiring decisions. Thus, as
the district court expressly ruled, Baggett was not an expert on
hiring decisions. Nor could he be in this specific instance. He
had not, for example, met or interviewed any of the candidates or
read the letters of recommendation submitted by the applicants to
the committee. His opinion was based mainly on Scott’s and
Gullick’s resumes and writing samples, including the writing
samples submitted to the committee as well as two documents Scott
prepared for this litigation.
-34-
vehicle for judicial second-guessing of employment decisions, nor
was it intended to transform the courts into personnel managers.”);
Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.
1988) (“[W]e do not sit as a super-personnel department that
reexamines an entity’s business decisions.”). Even if evidence
suggests that a decision was wrong, we will not substitute our
judgment as to who was more qualified for the employer’s business
judgment. See Bienkowski, 851 F.2d at 1508 (“The ADEA cannot
protect older workers from erroneous or even arbitrary personnel
decisions, but only from decisions which are unlawfully
motivated”). Such disputes do not support a finding of
discrimination and have no place in front of a jury.
2
Scott next claims that statistical evidence shows that the Law
School had a policy of not hiring tenure-track professors or legal
writing teachers over the age of forty. She specifically relies on
the fact that the five legal writing teachers hired by the
University’s law school during the relevant period were all under
forty years old. She also claims that from 1986 through 1995, few
professors over the age of forty were hired, and the few who were
hired were significantly younger than Scott. In denying the
University’s first partial summary judgment motion, the district
court referred to this evidence, noting that “it may be significant
that the law school has hired only one person in the over-forty age
-35-
bracket since 1986 as a regular full-time professor” and that
“[t]hose in the protected age group who have been employed were
hired as ‘visiting professor’ or ‘adjunct professor’ or ‘professor
emeritus’ or ‘acting professor.’” The University challenges
Scott’s proposed evidence of a discriminatory hiring policy first
by arguing that Scott ignores evidence in the record that refutes
her data and second by claiming that her assertion of a
discriminatory hiring policy is flawed as a statistical matter.
Assuming arguendo that Scott’s data accurately states the ages
of professors and legal writing teachers hired during the stated
periods, we nonetheless agree with the University that Scott’s
asserted statistical evidence is fatally flawed and does not
support an inference of age discrimination. We have previously
stated that while statistical evidence “may be probative of pretext
in limited circumstances,” it “usually cannot rebut the employer’s
articulated nondiscriminatory reasons.” Texas Instruments, 100
F.3d at 1184-85 (“[P]roof of pretext, hence of discriminatory
intent, by statistics alone, would be a challenging endeavor.”)
(citing Walther, 977 F.2d at 162); LeBlanc v. Great Am. Ins. Co.,
6 F.3d 836, 848 (1st Cir. 1993) (“[A] company’s overall employment
statistics will have little direct bearing on the specific
intentions of the employer when dismissing a particular
individual.”). This insufficiency is especially true here because,
as the University argues, Scott failed to compare the persons hired
-36-
to the pool of qualified applicants when she presented this
purported statistical evidence of discriminatory hiring practice.19
See Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1286-87 (5th
Cir. 1994) (“Where plaintiffs use statistical evidence to challenge
an employer’s hiring practices, that evidence, to be probative of
discriminatory intent, must compare the relevant portion of the
employer’s work force with the qualified population in the relevant
labor market.”); id. at 1287 (“Actual applicant flow figures are
the preferred method by which to measure an employer’s hiring
practices and performance.”). Such an omission renders her
evidence invalid for purposes of rebutting the University’s reasons
for ranking Gullick over Scott and for raising an inference of
discrimination.20
3
19
We note that Scott does not argue that she attempted to
obtain this information or that she was prevented from doing so.
20
As the University argues, without such information,
nothing prevents us from surmising that Scott was the only or one
of the very few applicants for the five legal writing positions who
was over the age of forty. And this flaw is no less germane to her
data regarding the tenure-track professors who were hired during
the time period referred to by Scott. In fact, without information
regarding the applicant pool, one plausible explanation of Scott’s
hiring data))and perhaps the only explanation appearing in the
record))is that provided by the University’s witness, Carolyn
Staton, the University’s Associate Vice Chancellor for Academic
Affairs and former Dean of the Law School, who testified that “the
problem you might see with certain people who are coming in the
tenure trac[k] jobs being younger is that people who have been in
the profession a long time don’t like to take the fifty, sixty,
seventy thousand dollar cut that they would have to take to become
a law teacher.”
-37-
At oral argument, Scott made much of the fact that Robertshaw
wrote down on her copy of Scott’s resume the dates that Scott
received her graduate degrees from the University of Mississippi,
arguing that this fact allows for a reasonable inference of age
discrimination. Scott claimed that the effect of this action was
exacerbated because Robertshaw dominated the search committee.
Robertshaw explained at trial that she asked Scott about these
dates to determine the relevancy of Scott’s course work to the
legal writing teaching position))she “wanted to find out when
[Scott] had done her graduate work in English because the use of
multiple drafts and collaborative groups and the things that we
used in the [legal writing] program really didn’t develop until
about the early to the mid 80s.” In denying the University’s
motion for judgment as a matter of law, the district court relied
on Robertshaw’s notation of these dates, finding that Robertshaw’s
testimony about her concerns of when Scott received her advanced
English degrees “clearly raised the specter of age.” The court
further found that “the jury was entitled to believe Scott’s
argument that Robertshaw’s position as director of the legal
writing program would carry more weight with the other members of
the selection committee.”
The University argues that Robertshaw’s noting of the dates
Scott attended graduate school is no evidence at all of age
discrimination. The University points out that Robertshaw’s
explanation for asking Scott about the dates remained undisputed in
-38-
the record. It emphasizes that age was never mentioned during any
of the committee meetings and that Robertshaw did not relate either
the graduation dates or her conversation with Scott about
collaborative groups methods to the other members. Finally, the
University counters Scott’s argument that Robertshaw dominated the
search committee by stressing that the search committee was
composed of the dean of the law school, a tenured professor, and an
associate, tenure-track professor in addition to Robertshaw and
that the trial testimony of the other committee members revealed
that they felt that the hiring decision was just as important to
them as to Robertshaw.
At first blush, Robertshaw’s act of writing down the dates
Scott received her graduate degrees appears, as the district court
stated, to raise the specter of age. On further inspection,
however, we disagree with the district court. Viewing this
evidence in the light most favorable to Scott, perhaps the most the
jury could reasonably infer was that Robertshaw noted Scott’s
graduation dates on her resume as a rough indication of Scott’s
age. However, even if Robertshaw had noted Scott’s actual age on
her resume, this single notation, without other evidence of its
import, is insufficient to support a reasonable inference of
discrimination. See Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d
1498, 1504 (10th Cir. 1996) (holding that a reasonable jury could
have concluded that age played determinative role in hiring process
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where employer wrote down plaintiff’s and other job applicants’
ages, “sometimes underlining, circling or calculating ages on the
applicants’ resumes or other relevant documents,” and “admit[ted]
to underlining and circling things he thought were ‘important’ or
‘relevant’ about an applicant”). As the Eighth Circuit concluded
in a case that the University cites and we find persuasive on this
point:
Nor do we believe that the fact that the district manager
knew Mr. Nelson’s age could furnish the basis for a
reasonable inference that his age was a basis for his
termination. A fact finder may not simply convert a
condition that is necessary for a finding of liability
(here, knowledge of a plaintiff’s age) into one that is
sufficient for such a finding.
Nelson v. J.C. Penny Co., Inc., 75 F.3d 343, 345 (8th Cir.), cert.
denied, - U.S. -, 117 S. Ct. 61, - L. Ed. 2d - (1996) (vacating the
jury verdict for plaintiff Nelson on his age discrimination claim
and remanding for entry of judgment in favor of the employer); see
also May v. Shuttle, Inc., 129 F.3d 165, 173 (D.C. Cir. 1998),
cert. denied, - U.S. -, 118 S. Ct. 2320, 141 L. Ed. 2d 695 (1998)
(explaining that supervisor’s knowledge of workers’ ages and how
much it cost the company to keep them employed was insufficient to
show unlawful motivation); Jang v. Biltmore Tire Co., 797 F.2d 486,
489 n.3 (7th Cir. 1986) (concluding that testimony that supervisor
asked plaintiff about his age “falls far short of constituting
direct proof of age discrimination”). Scott does not respond in
her brief to the arguments or cases advanced by the University,
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and, unearthing no cases suggesting an alternative legal
significance of Robertshaw’s actions, we conclude that Robertshaw’s
writing down these dates is insufficient, without more, to support
a finding that age was a motivating factor in the University’s
decision to hire Gullick over Scott.
4
Finally, Scott asserted at oral argument that the jury was
entitled to infer discrimination from the evidence that she was
treated differently from the other applicants in that the committee
did not call her references, did not tell her to bring a writing
sample to her interview, and did not take her to lunch when she was
interviewed. We can reject this last point in short order because
the record reveals that Scott was not the only interviewee not
taken out to lunch: Bush testified that the committee did not take
Duffy Graham, the last candidate interviewed by the committee, out
to lunch. See Swanson, 110 F.3d at 1187 (holding that plaintiff
had “presented no competent evidence from which the jury could
conclude . . . that illegal race discrimination motivated
[employer’s] decision to deny” plaintiff an in-building parking
space where, among other things, white managers of his same level
were not provided a parking space). While Scott’s other two
statements are undisputed in the record, the following facts are
also undisputed. After ranking the candidates, Shelson first,
Gullick second, and Scott third, the committee decided that only
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the top two candidates’ references would be called. After Shelson
declined the position, the Law School offered it to Gullick. The
record indicates that had Gullick refused the offer, the committee
would have checked Scott’s references and offered Scott the
position if the reference check was satisfactory. Under these
circumstances, the fact that the committee did not call Scott’s
references cannot support a reasonable inference of discrimination.
With respect to the writing samples, we note again that while
Scott was not informed))as were the other interviewees))at the time
her interview was scheduled that she needed to bring her samples to
the interview, she was told during her interview that she needed to
submit writing samples to the committee.21 While the committee’s
failure to tell Scott to provide writing samples until the date of
her interview may support a reasonable inference that the committee
was less than conscientious about her application, it does not
represent even a mere scintilla of evidence of age discrimination.
See Rhodes, 75 F.3d at 994 (“[I]f the evidence put forth by the
plaintiff to establish the prima facie case and to rebut the
employer’s reasons is not substantial, a jury cannot reasonably
21
As we stated previously, Scott’s interview was on a
Thursday, and the committee meeting was on the following Monday.
As we also noted previously, the only trial testimony regarding the
committee’s consideration of writing samples was Robertshaw’s
testimony that she read Scott’s writing samples at about the same
time she read Gullick’s and they did not affect her opinion of the
candidates’ relative rankings. No other committee member was asked
or testified about the effect of the delay in the committee’s
receipt of Scott’s writing samples.
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infer discriminatory intent.”).
For all of the foregoing reasons, we conclude that Scott’s
evidence, taken as a whole, is insufficient to create a fact issue
as to whether each of the University’s stated reasons was what
actually motivated it and to create a reasonable inference that age
was a motivating factor in the University’s decision. See Rhodes,
75 F.3d at 994; see also Louisiana Office of Community Servs., 47
F.3d at 1448 (“While we or the jury might have made a different
employment decision, we should not substitute our judgment of an
employee’s qualifications for the employer’s in the absence of
proof that the employer’s nondiscriminatory reasons are not
genuine. We are persuaded that this is precisely what the jury did
here.”); Texas Instruments, 100 F.3d at 1186-87 (rejecting the
EEOC’s argument that the district court should not have “discounted
each of its type of evidence and ignored that, taken together, all
of the agency’s evidence bespoke pretext sufficiently to warrant a
jury trial” and instead opining that “‘[e]vidence’ that does not
imply pretext taken alone does not do so when cumulated”). We
accordingly hold that the district court erred in denying the
University’s motion for judgment as a matter of law.
IV
Scott raises three evidentiary issues on appeal. First, she
claims that the court erroneously excluded Baggett’s testimony
regarding the 1995 hiring. Second, she argues that the court
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erroneously excluded evidence of retaliation after Scott filed her
second amended complaint. Finally, Scott contends that the court
erred in excluding evidence about her claim of age discrimination
in the 1995 hiring. We address each of these rulings in turn.
A
Scott argues that she substantially complied with the
discovery rules with respect to Baggett’s testimony about the 1995
hiring and, therefore, the district court’s ruling excluding this
testimony on the grounds of failure to timely supplement was error.
Scott, who submitted Baggett’s affidavit regarding the 1995 hiring
less than six weeks before trial in a response to the University’s
partial summary judgment motion, does not dispute that she failed
to meet the applicable discovery deadlines. Instead, she contends
that she supplemented discovery as soon as practicable after the
University made available the documents pertaining to the 1995
hiring on which Baggett based his opinion. The record reveals,
however, that prior to that Scott had not informed the University
that Baggett would be testifying regarding the 1995 hiring. We
therefore hold that the district court did not abuse its discretion
in excluding this testimony. See Hester v. CSX Transp., Inc., 61
F.3d 382, 388 n.11 (5th Cir. 1995); see also Alldread v. City of
Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993) (explaining that the
district court has wide discretion in determining whether to
exclude expert testimony due to failure to comply with discovery
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requirements).
B
Scott’s second amended complaint alleged certain acts of
retaliation by the University. Less than three weeks before trial,
Scott informed the University that she planned to present
additional evidence of retaliation arising out of her working
environment at the library. She sought to amend her complaint to
add these charges of retaliation. In response to the University’s
subsequent motion in limine on this point, the district court
excluded all evidence of retaliation occurring after Scott filed
her second amended complaint.
Scott states in her brief that she “was severely prejudiced by
denial of an opportunity to put on a substantial part of her proof
of retaliatory conduct.” In her reply brief, she appears to claim
that the University had sufficient notice of at least some of these
additional alleged acts of retaliation because she had included
them in her response to the University’s partial summary judgment
motion, which she filed approximately five weeks before trial. She
also suggests that she did not need to amend her complaint to add
charges of retaliation because the retaliation in her work
environment at the library continued to the day of trial, arguing
that “amending the complaint after every incident in the Law
Library was not feasible and [was] a waste of judicial resources.”
Scott presents no other explanation why she believes the district
court erred in excluding the evidence of retaliation occurring
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after she filed her second amended complaint. Given the time frame
in which Scott presented these alleged additional acts of
retaliation, we cannot conclude that the district court abused its
discretion in excluding evidence of the acts not included in her
second amended complaint. See Information Resources Inc. v. United
States, 996 F.2d 780, 785 (5th Cir. 1993) (holding that district
court did not abuse its discretion in excluding claim when party
delayed supplementing discovery responses to include the claim
until shortly before trial); EEOC v. Manville Sales Corp., 27 F.3d
1089, 1092-93 (5th Cir. 1994) (stating that we review evidentiary
rulings only for abuse of discretion).
C
Scott lastly contends that the district court erred in
excluding testimony about age discrimination in the 1995 hiring.
The district court excluded all testimony pertaining to this claim
because Scott had not presented the claim to the EEOC. Citing “29
C.F.R. § 16.513 (1988),”22 Scott argues that amendments to the EEOC
regulations have eliminated the exhaustion requirements for age
discrimination cases, citing several cases that she claims support
this proposition. She also contends that it was not necessary to
file this claim with the EEOC because the age discrimination in the
1995 hiring was “intricately intertwined” with the 1993 hiring,
22
Based on our review of the cases Scott cites, it appears
that she intended to cite 29 C.F.R. § 1613.513, rather than 29
C.F.R. § 16.513, which does not exist in the federal regulations.
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which was already being litigated; she argues that, under this
circumstance, the district court has “ancillary jurisdiction” to
hear the claim.
The University counters that a plaintiff must submit a charge
of age discrimination to the EEOC prior to filing a lawsuit raising
an ADEA claim. The University distinguishes the cases cited by
Scott, and the regulations cited therein, as applying to only
federal and not state government agencies and their employees.
We first reject as incorrect Scott’s assertion that an ADEA
plaintiff need not exhaust administrative remedies. As we have
previously held, “[a] charge of discrimination must be timely filed
with the EEOC prior to the initiation of a civil action under the
ADEA.” Clark v. Resistoflex Co., Div. of Unidynamics Corp., 854
F.2d 762, 765 (5th Cir. 1988) (citing 29 U.S.C. § 626(d), which
provides that “[n]o civil action may be commenced by an individual
. . . a charge alleging unlawful discrimination has been filed with
the Equal Employment Opportunity Commission”). Moreover, as the
University correctly points out, the cases cited by Scott as
supporting the elimination of the EEOC filing requirement are
inapposite: those cases concern the interpretation and application
of regulations that are sections of 29 C.F.R. Part 1613 (since
redesignated as Part 1614), which governs complaints filed by
federal employees only. See Bak v. Postal Serv., 52 F.3d 241, 243
(9th Cir. 1995), cert. denied sub nom. Bak v. Runyon, ___U.S.___,
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118 S. Ct. 374, 139 L. Ed. 2d 291 (1997) (citing 29 C.F.R. §
1613.513); Adler v. Espy, 35 F.3d 263, 264 (7th Cir. 1994) (citing
29 C.F.R. § 1613.215(a)(3)); Bornholdt v. Brady, 869 F.2d 57, 63
(2d Cir. 1989) (citing 29 C.F.R. § 1613.513); see also 62 Fed. Reg.
17,041, 17,043 (1997) (“The Equal Employment Opportunity
Commission’s regulations governing discrimination complaints filed
by Federal employees, formerly found at 29 C.F.R. Part 1613, are
now found at 29 C.F.R. Part 1614.”).
We also reject Scott’s contention that the district court
could properly entertain the 1995 discrimination claim because it
was intricately intertwined with the 1993 discrimination claim.
While we have held that “a district court has ‘ancillary
jurisdiction’ to hear a claim of retaliation, even though not filed
with the EEOC, ‘when it grows out of an administrative charge that
is properly before the court,’” see Barrow v. New Orleans Steamship
Ass’n, 932 F.2d 473, 479 (5th Cir. 1991) (quoting Gupta v. East
Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)),
we have not so held with respect to discrimination claims. See
Gupta, 654 F.2d at 414 (indicating that this rule is limited to
retaliation claims due to the special nature of such claims).
As the district court correctly stated, Scott never presented
her ADEA claim concerning age discrimination in the 1995 hiring to
the EEOC. We accordingly hold that the district court did not err
in excluding testimony regarding her age discrimination claim for
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the 1995 hiring.
VI
For the foregoing reasons, the decision of the district court
denying the University’s motion for judgment as a matter of law is
REVERSED and judgment is hereby RENDERED in the University’s favor.
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