Russell v. McKinney Hospital Venture

REVISED, JANUARY 5, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-41390

_____________________

SANDRA RUSSELL

Plaintiff - Appellant

v.

MCKINNEY HOSPITAL VENTURE, a joint venture

of Parkway Hospital, Inc. and NTMC Venture,

Inc., d/b/a Columbia Medical Center of McKinney,

d/b/a Columbia Homecare of McKinney; NTMC

VENTURE, INC., d/b/a Columbia Medical Center of

McKinney; COLUMBIA HOMECARE OF MCKINNEY

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________

December 6, 2000

Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,*

District Judge.

KING, Chief Judge:

Plaintiff-Appellant Sandra Russell appeals from the district

court’s order granting Defendants-Appellees judgment as a matter

of law in this case brought under the Age Discrimination in

*

District Judge of the Northern District of Texas,

sitting by designation.

Employment Act. For the following reasons, we AFFIRM in part and

REVERSE in part.

I. BACKGROUND

On October 9, 1995, fifty-four year old Sandra Russell began

employment for Columbia Homecare of McKinney (“Homecare”) as the

Director of Clinical Services. Carol Jacobsen, age fifty-three

and Russell’s immediate supervisor, also began working at

Homecare on the same day. In January 1996, Steve Ciulla, age

twenty-eight, was hired as the Director of Operations, a position

that was to be at the same level as Russell’s position and one

that reported to Jacobsen as well. Ciulla was the son of the

Chief Executive Officer of Columbia Medical Center of McKinney

(“Medical Center”), the parent company of Homecare.

On January 27, 1997, Russell was terminated from her

employment. Subsequently, on April 23, 1998, Russell filed suit

in federal district court1 charging defendants with violating the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 623(a)(1) (1999).2 A jury trial commenced on July 12, 1999. At

1

Russell had originally filed her suit in Texas state

court, which defendants subsequently removed to federal district

court. Russell moved to remand, but the district court denied

her motion.

2

Under the ADEA, it is unlawful “to discharge any

individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C.

§ 623(a)(1) (1999).

2

the close of Russell’s case in full, defendants moved for

judgment as a matter of law, pursuant to Rule 50 of the Federal

Rules of Civil Procedure. The district court responded that it

would take the motion under advisement and would render a ruling

after the jury returned its verdict. On July 15, 1999, the jury

returned a verdict in favor of Russell, granting her $25,000 in

back pay. The jury further found that defendants had willfully

violated the ADEA, but did not assess any liquidated damages.

Defendants renewed their motion for judgment as a matter of law,

which the district court granted on November 1, 1999. Russell

timely appeals.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of a motion for

judgment as a matter of law, applying the same standard as the

district court. See Price v. Marathon Cheese Corp., 119 F.3d

330, 333 (5th Cir. 1997). Judgment as a matter of law is

appropriate if “there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue.” FED.

R. CIV. P. 50(a). Reviewing all of the evidence in the record, we

“must draw all reasonable inferences in favor of the nonmoving

party, and [we] may not make credibility determinations or weigh

the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 120 S.

Ct. 2097, 2110 (2000); see also Boeing Co. v. Shipman, 411 F.2d

3

365, 374-75 (5th Cir. 1969) (en banc) (stating that it is the

function of the jury to weigh conflicting evidence and inferences

and determine the credibility to be accorded to the witnesses).

In so doing, we “must disregard all evidence favorable to the

moving party that the jury is not required to believe.” Reeves,

120 S. Ct. at 2110.

III. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE JURY VERDICT

To determine whether judgment as a matter of law against

Russell was appropriate, we must ascertain if sufficient evidence

existed for a reasonable jury to find age discrimination. This

inquiry is driven by the Supreme Court’s most recent statement on

the standard for granting judgment as a matter of law, Reeves v.

Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000). We

thus set out this analytical framework, and then analyze whether

the evidence was sufficient to sustain the jury verdict in this

case.

A. Analytical Framework

A plaintiff can prove a claim of intentional discrimination

by either direct or circumstantial evidence. Absent direct

evidence of discriminatory intent, as is typically the case,

proof via circumstantial evidence is assembled using the

framework set forth in the seminal case of McDonnell Douglas

4

Corp. v. Green, 411 U.S. 792 (1973).3 “First, the plaintiff must

establish a prima facie case of discrimination.” Reeves, 120 S.

Ct. at 2106. Second, the employer must respond with a

legitimate, nondiscriminatory reason for its decision. See

McDonnell Douglas, 411 U.S. at 802. This burden on the employer

is only one of production, not persuasion, involving no

credibility assessments. See Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255-56 (1981). Third, if the employer

carries its burden, the “mandatory inference of discrimination”

created by the plaintiff’s prima facie case, Burdine, 450 U.S. at

256 n.10, “drops out of the picture” and the fact finder must

“decide the ultimate question: whether [the] plaintiff has proven

[intentional discrimination],” St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511-12 (1993).

In making this showing, the plaintiff can rely on evidence

that the employer’s reasons were a pretext for unlawful

discrimination. See McDonnell Douglas, 411 U.S. at 804. “[T]he

trier of fact may still consider the evidence establishing the

plaintiff’s prima facie case ‘and inferences properly drawn

3

Russell is asserting her claim of disparate treatment

under the ADEA. “Although McDonnell Douglas is a Title VII case,

we have previously held that its framework is applicable to ADEA

cases.” Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 n.3 (5th

Cir. 1996); see also Bauer v. Albemarle Corp., 169 F.3d 962, 966

(5th Cir. 1999) (“The same evidentiary procedure for allocating

burdens of production and proof applies to discrimination claims

under both [Title VII and the ADEA].”). Thus, we will examine

Russell’s ADEA claim under the well-established Title VII rubric

of analysis.

5

therefrom . . . on the issue of whether the defendant’s

explanation is pretextual.’” Reeves, 120 S. Ct. at 2106 (quoting

Burdine, 450 U.S. at 255 n.10). However, as the Court stated in

Hicks, a showing of pretext does not automatically entitle an

employee to a judgment as a matter of law. See 509 U.S. at 524.

It is “not enough . . . to disbelieve the employer; the [fact

finder] must believe the plaintiff’s explanation of intentional

discrimination.” Id. at 519 (emphasis in original). This

statement in Hicks caused confusion as to whether intentional

discrimination could be inferred from a showing of pretext. See

Reeves, 120 S. Ct. at 2104-05 (describing the circuit conflict

resulting from the confusion).

The Supreme Court resolved the circuit split by repudiating

the “pretext-plus” approach, thus overruling our decision below,

Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th

Cir. 1999). See Reeves, 120 S. Ct. at 2108. A unanimous Court

held that this circuit had “misconceived the evidentiary burden

borne by plaintiffs who attempt to prove intentional

discrimination through indirect evidence.” Id. “Thus, a

plaintiff’s prima facie case, combined with sufficient evidence

to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employee unlawfully

discriminated.” Id. at 2109.

The Court further stated that, more likely than not, a

showing of pretext will lead to an inference of discrimination:

6

“Moreover, once the employer’s justification has been eliminated,

discrimination may well be the most likely alternative

explanation, especially since the employer is in the best

position to put forth the actual reason for its decision.” Id.

at 2108-09.

The Court also cautioned that there may be instances,

although rare, where a showing of pretext would not be sufficient

to infer discrimination. Such a situation would occur “if the

record conclusively revealed some other, nondiscriminatory reason

for the employer’s decision, or if the plaintiff created only a

weak issue of fact as to whether the employer’s reason was untrue

and there was abundant and uncontroverted independent evidence

that no discrimination occurred.” Id. at 2109.4

4

By its ruling in Reeves, the Supreme Court repudiated

part of our en banc decision in Rhodes v. Guiberson Oil Tools, 75

F.3d 989 (1996). The Court noted that Rhodes stood for the

proposition that the “plaintiff must introduce sufficient

evidence for [the] jury to find both that [the] employer’s reason

was false and that [the] real reason was discrimination.”

Reeves, 120 S. Ct. at 2105 (emphasis added) (statement in

parenthetical). This pretext-plus requirement is contrary to the

Court’s holding that the employer’s prevarication may be

sufficient in many cases to demonstrate discriminatory animus.

See id. at 2108-09. While portions of our Rhodes opinion do not

fully comport with Reeves, we have previously recognized that

there are central features of Rhodes that endure. See Vadie v.

Miss. State Univ., 218 F.3d 365, 373 n.23 (5th Cir. 2000)

(“Rhodes is consistent with Reeves and continues to be the

governing standard in this circuit.”). We do not see much to be

gained from dissecting Rhodes to divine those features. Rather,

we simply comply with the Supreme Court’s mandate in Reeves not

to substitute our judgment for that of the jury and not to unduly

restrict a plaintiff’s circumstantial case of discrimination. We

therefore underscore that Reeves is the authoritative statement

regarding the standard for judgment as a matter of law in

7

With this framework in mind, we proceed to analyze Russell’s

evidence supporting her ADEA claim.

B. Application of the Analytical Framework

Under the McDonnell Douglas circumstantial evidence

framework, to make out a prima facie case of age discrimination

under the ADEA, a plaintiff must establish:

(1) [she] was discharged; (2) [she] was qualified for

[her] position; (3) [she] was within the protected

class; and (4) [she] was replaced by someone outside

the protected class, someone younger, or was otherwise

discharged because of age.

Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996)

(citations omitted). It is undisputed that Russell satisfied her

burden to establish a prima facie case of discrimination.5 In

response, defendants put forth the need for a new management

style as their legitimate reason for terminating Russell.

Russell disputed this proffered justification, contending that

discrimination cases. Reeves guides our decisions, and insofar

as Rhodes is inconsistent with Reeves, we follow Reeves.

5

Defendants stipulated to the prima facie case because

Russell established that she was terminated, that she was

qualified for her position, that she was in her mid-fifties, and

that she was replaced by a woman in her early-thirties.

Defendants contended in their supplemental brief that

because they stipulated to the prima facie case, it is somehow

infirm. This argument is wholly without merit. First,

stipulations do not weaken the evidence. Second, the Supreme

Court has stated that for a case that is “fully tried on the

merits,” the sufficiency of the prima facie case as such is “no

longer relevant.” See United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 714, 715 (1983).

8

the real reason for her termination was Ciulla’s age-based

animus.

While evidence beyond that of the prima facie case and

pretext clearly is not required, see supra Part III.A, Russell

provided additional evidence of discrimination. Because we

review the entire record when considering a motion for a judgment

as a matter of law, see Reeves, 120 S. Ct. at 2110, we first

examine Russell’s evidence of pretext and then her additional

evidence of discrimination.

1. Evidence of Pretext

Defendants’ proffered reason for Russell’s termination was

that “a change in management style” was needed. We find that

Russell provided sufficient evidence to create a jury issue that

this justification was pretextual.

At trial, Russell demonstrated that she had received a very

favorable evaluation from her supervisor Jacobsen only two months

prior to her termination. On that evaluation, Russell was noted

as “exceptional” or “exceeding expectations” in all the relevant

categories but one, in which she received a “meets standards”

rating.6 Jacobsen conceded that Russell was not given a formal

6

The rating guide was as follows: 4 - “exceptional

performance”; 3 - “exceeds standards”; 2 - “meets standards”; 1 -

“almost meets standards”; and 0 - “does not meet standards.”

Russell received her “2” rating in a cost-control category

(“manages the utilization of supplies and equipment”).

9

oral warning, a written warning, or a “corrective action plan,”

all of which are required by Homecare’s own internal procedures.

In addition, Dayna Westmoreland, Jacobsen’s administrative

assistant, testified that Jacobsen received (what Jacobsen

herself termed) an “ultimatum” from Ciulla that he would quit if

Russell were not fired. During the four days between Ciulla’s

ultimatum and Russell’s termination, Jacobsen called a special

meeting of nurses under Russell’s supervision, during which some

indicated that they were unhappy with Russell. Thus, the jury

had before it evidence that the meeting was hastily assembled

immediately after Ciulla’s ultimatum and that Russell was fired

only a few days after the ultimatum.

Russell also elicited information from two nurses, who were

defendants’ witnesses, that Russell did an “excellent” job of

keeping the facility in federal compliance. As for feeling

belittled from Russell’s “nitpicking,” the nurses conceded that

the reprimands occurred when they committed errors that were

violations of professional and federal rules regarding accuracy

of data and dispensing medication to patients.7 In addition,

Russell produced evidence at trial that Homecare dominated the

7

For example, one of the nurses was reprimanded for

giving a patient insulin without a doctor’s authorization.

10

healthcare market, thus casting doubt upon defendants’ contention

that the nurses were “disinterested” witnesses.8

Although defendants contested Russell’s case, their evidence

is not of such magnitude that a reasonable jury could only find

in their favor (i.e., that their justification for terminating

Russell was not pretextual). All defendants have demonstrated is

that they disputed Russell’s characterization of the events and

put forth evidence to support their position. The record reveals

that Russell countered defendants’ arguments and created

conflicts in substantial evidence. See Boeing, 411 F.2d at 375.

The jury had both conflicting versions before it and apparently

did not find credible defendants’ explanation that the ratings

reflected serious management style issues, that tensions with

other staff stemmed from Russell’s inability to work with people

(versus Russell’s ensuring that Homecare was in federal

compliance), and that the special meeting with the nurses was

entirely aboveboard. See Reeves, 120 S. Ct. at 2110 (stating

that courts are not required to give credence to evidence

supporting defendants that is not uncontradicted and

unimpeached); see also United States v. Ramos-Garcia, 184 F.3d

463, 466 (5th Cir. 1999) (stating that the jury evidently did not

believe the alternative explanation of the events and that the

8

Defendants had argued that because the nurses no longer

worked for Homecare during the time of the trial, they were

“disinterested” witnesses.

11

court would “‘not second guess the jury in its choice’”);

Woodhouse v. Magnolia Hosp., 92 F.3d 248, 254 (5th Cir. 1996)

(“The jury was presented conflicting evidence . . . [and]

apparently chose to believe that [age was a criterion in the

decision].”); United States v. Kaufman, 858 F.2d 994, 1004 (5th

Cir. 1988) (finding that it was a “serious mistake . . . to

second-guess judgments that . . . [were made] firsthand”); Fowler

v. Carrollton Pub. Library, 799 F.2d 976, 984 (5th Cir. 1986)

(“Motivation presents a classic jury issue.”).

The jury, with its ability to listen to live testimony, was

in a better position to judge the credibility of the witnesses

and the accounts of the events; as such, we will not second guess

their rejection of defendants’ proffered justification. See

Reeves, 120 S. Ct. at 2110 (stating that the court “may not make

credibility determinations or weigh the evidence”); Vance v.

Union Planters Corp., 209 F.3d 438, 443 (5th Cir. 2000) (stating

that the court “[lacked] the jury’s opportunity to observe [the

witness’s] demeanor and hear his voice” and this fact contributed

to the court’s confidence in the jury’s verdict).

2. Additional Evidence of Discrimination

In addition to establishing a prima facie case of

discrimination and creating a jury issue as to the veracity of

defendants’ explanation, Russell introduced evidence of oral

12

statements that supported her case of age discrimination.9 The

value of such remarks is dependent upon the content of the

remarks and the speaker. See Reeves, 120 S. Ct. at 2111 (finding

that the age-related comments further supported the jury’s

verdict of liability because the content of the remarks indicated

“age-based animus” and the speaker was “principally responsible

for [the plaintiff’s] firing.”).

The four-part test of Brown v. CSC Logic, Inc., 82 F.3d 651

(5th Cir. 1996),10 was originally devised in order to address a

situation in which one of the elements of the plaintiff’s prima

facie case is missing and the plaintiff attempts to remedy the

deficiency by adducing evidence of discrimination in the form of

remarks evidencing animus or bias. That said, the four-part test

has been widely used in this circuit, notably by the panel that

decided Reeves. See Reeves, 197 F. 3d at 692-93. The Court in

Reeves made clear that viewing remarks that a jury could find to

evidence animus through the harsh lens employed by the Reeves

panel (which, in turn, relied upon Brown) was unacceptable:

The [Fifth Circuit] also failed to draw all reasonable

inferences in favor of petitioner. For instance, while

9

We note that such remarks could also be utilized by a

plaintiff to demonstrate pretext.

10

“[R]emarks may serve as sufficient evidence of age

discrimination if the offered comments are: 1) age related; 2)

proximate in time to the terminations; 3) made by an individual

with authority over the employment decision at issue; and 4)

related to the employment decision at issue.” Brown, 82 F.3d at

655 (emphasis added).

13

acknowledging “the potentially damning nature” of [the]

age-related comments, the court discounted them on the

ground that they “were not made in the direct context

of [the plaintiff’s] termination.”

120 S. Ct. at 2111 (citation omitted).

The remarks at issue in this case are certainly appropriate

additional circumstantial evidence of age discrimination because

their content indicates age animus and the speaker (Ciulla) was

primarily responsible for Russell’s termination. See Reeves, 120

S. Ct. at 2111. Russell revealed at trial that Ciulla frequently

referred to her as “old bitch.”11 She testified that the constant

drumbeat of “old bitch” forced her to get earplugs so she would

be able to work in the office. Russell also testified that

11

Russell also testified that Ciulla “viciously” referred

to her as “Miss Daisy.” In addition, the evidence revealed that

one of Ciulla’s employees created a cover to a book of work

discrepancies kept by Homecare; the cover read “Miss Daisy’s

Discrepancy Book.” It is uncontested that the “Miss Daisy”

remarks had an innocuous beginning. In the summer of 1996, Gwen

Morris, Homecare’s Quality Assurance Director, began referring to

Russell in jest as “Miss Daisy.” In the course of managing

nurses from regional offices and reviewing their paperwork for

regulatory compliance, Russell and Morris regularly traveled

together to outlying locations. On these occasions, Russell

drove because Morris preferred not to drive. Morris, who is

African American, found the situation amusing in light of the

film Driving Miss Daisy, in which an African-American man

chauffeurs a Caucasian woman. Viewing references to Russell as

Miss Daisy as evidence of age-based animus is considerably more

difficult than so viewing the “old bitch” comments.

Russell also recounted a conversation between herself

and Jacobsen that occurred when she spoke with Jacobsen about her

problems with Ciulla: Russell asked whether she should be seeking

other employment, and Jacobsen replied, “You and I really don’t

have to work but Steve Ciulla has a young family.” We agree with

defendants that a reasonable jury could not find that this

comment evidences age-based discrimination.

14

Ciulla laughed at her when she confronted him about his dealings

with her. We determine that the jury could find the repeated use

of “old bitch” indicates that Ciulla had discriminatory

motivations.12 That Ciulla did not explicitly remark to Russell,

“I do not like you because you are old,” does not render

Russell’s evidence infirm. See, e.g., Normand, 927 F.2d at 864

n.4 (“[I]ndirect references to an employee’s age . . . can

support an inference of age discrimination.”). Thus, the content

of Ciulla’s remarks could be found by a jury to manifest age

animus.

Next, a jury could find that these remarks were made by one

“principally responsible” for Russell’s termination. See Reeves,

120 S. Ct. at 2110. Typically, the person with authority over

the employment decision is the one who executes the action

against the employee. However, that is not necessarily the case.

See Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996)

(“[O]rdinary employees . . . normally [cannot affect the

employment of their co-employees.]” (emphasis added)). If the

employee can demonstrate that others had influence or leverage

over the official decisionmaker, and thus were not ordinary

coworkers, it is proper to impute their discriminatory attitudes

12

Ciulla disputes that he repeatedly called Russell “old

bitch,” but in reviewing judgment as a matter of law, we make all

reasonable inferences in favor of the nonmoving party and do not

make credibility determinations. See Reeves, 120 S. Ct. at 2110.

Further, defendants on appeal also concede that we must take as

true that Ciulla made those comments.

15

to the formal decisionmaker. See, e.g., id. at 307 (stating that

if official decisionmaker “merely ‘rubber stamped’” the wishes of

others, that decisionmaker would inherit the discriminatory

taint); Haas v. Advo Sys., Inc., 168 F.3d 732, 734 n.1 (5th Cir.

1999) (rejecting defendant’s argument that subordinate exerted no

influence over ultimate decisionmaker and thus determining that

sufficient evidence existed to demonstrate a causal nexus between

the discriminatory remarks and the employment decision (citing

Long, 88 F.3d at 307)).

Our sister circuits also support this approach.13 For

instance, in Shager v. Upjohn Co., Judge Posner, writing for a

panel of the Court of Appeals for the Seventh Circuit, reversed a

summary judgment for the employer in an ADEA case, finding that

the influence of the person with the discriminatory attitude may

well have been decisive in the employment decision. See 913 F.3d

398, 405 (7th Cir. 1990). “If the [formal decisionmakers] acted

as the conduit of [the employee’s] prejudice — his cat’s paw —

the innocence of the [decisionmakers] would not spare the company

from liability.” Id.

Many circuit cases have also echoed the idea underlying

Judge Posner’s “cat’s paw” analysis that courts will not blindly

13

If this were not so and we adhered to a rigid

formalistic application, employers could easily insulate

themselves from liability by ensuring that the one who performed

the employment action was isolated from the employee, thus

eviscerating the spirit of the “actual decisionmaker” guideline.

16

accept the titular decisionmaker as the true decisionmaker: “[A]

defendant may be held liable if the manager who discharged the

plaintiff merely acted as a rubber stamp, or the ‘cat’s paw,’ for

a subordinate employee’s prejudice, even if the manager lacked

discriminatory intent.” Kendrick v. Penske Transp. Servs., Inc.,

220 F.3d 1220, 1231 (10th Cir. 2000) (citing, inter alia, Long,

88 F.3d at 307); see also Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (stating that

“discriminatory comments . . . made by the key decisionmaker or

those in a position to influence the decisionmaker” can be used

by the plaintiff to establish pretext); Ercegovich v. Goodyear

Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998)

(“[Decisionmaker] rule was never intended to apply

formalistically, and [thus] remarks by those who did not

independently have the authority or did not directly exercise

their authority to fire the plaintiff, but who nevertheless

played a meaningful role in the decision to terminate the

plaintiff, [are] relevant.”); Griffin v. Washington Convention

Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“[E]vidence of a

subordinate’s bias is relevant where the ultimate decision maker

is not insulated from the subordinate’s influence.”); Llampallas

v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)

(“In a cat’s paw situation, the harasser clearly causes the

tangible employment action, regardless of which individual

actually signs the employee’s walking papers.”); Long, 88 F.3d at

17

307 (citing Shager); Kientzy v. McDonnell Douglas Corp., 990 F.2d

1051, 1060 (8th Cir. 1993) (“A reasonable jury could have found

that [the employee] used [the decisionmakers] as the conduit of

his prejudice — ‘his cat’s paw.’”).

We therefore look to who actually made the decision or

caused the decision to be made, not simply to who officially made

the decision. Consequently, it is appropriate to tag the

employer with an employee’s age-based animus if the evidence

indicates that the worker possessed leverage, or exerted

influence, over the titular decisionmaker.

As in Reeves, Russell fortified her evidence of age-related

remarks by “[introducing] evidence that [the speaker of the

discriminatory remarks] was the actual decisionmaker behind [her]

firing.” Reeves, 120 S. Ct. at 2111 (emphasis added).

Defendants repeatedly emphasize that Russell and Ciulla were both

managers at the same level and that Russell was officially

terminated by Jacobsen, her supervisor, not by Ciulla. However,

Russell presented adequate evidence at trial for a jury to find

that Ciulla wielded sufficiently great “informal” power within

Homecare such that he effectively became the decisionmaker with

respect to Russell’s termination. See id. (finding that the

source of the age-related remarks was the actual decisionmaker

because of his influence over the company president, his wife,

who officially terminated the employee); see also Griffin, 142

18

F.3d at 1312 (collecting cases from various circuits, including

the Fifth Circuit).

To demonstrate that Ciulla was the de facto decisionmaker,

Russell points to the following evidence: Ciulla gave Jacobsen

an ultimatum that he would quit if she did not fire Russell14;

Jacobsen’s budget was controlled by Ciulla’s father; Jacobsen

went crying to her assistant Dayna Westmoreland immediately after

Ciulla’s ultimatum; before the ultimatum, Jacobsen had told

Russell that she was not going to lose her job over the friction

between Russell and Ciulla; Ciulla unilaterally transferred an

employee under Russell’s supervision without her knowledge or

consent; and Ciulla received “perks” that his colleagues did not,

such as arriving late at work with impunity, setting up a ping-

pong table outside his office, and playing in charity golf

tournaments on company time.

A jury could find that Ciulla possessed power greater than

that of the ordinary worker at his level due to his father’s

position as CEO of the parent corporation and that Ciulla took

advantage of that power. Furthermore, the evidence also

established that Jacobsen was afraid of losing her job. The jury

could find that Jacobsen believed her options were limited by the

fact that Ciulla was the son of the CEO, who controlled her job

14

Again, Ciulla denies giving Jacobsen the ultimatum, but

we take as true that he did. See supra note 12.

19

and her budget.15 Thus, it would not be unreasonable for the jury

to conclude that Jacobsen essentially regarded her decision to

terminate Russell as ordained by other forces. Whatever the

formal hierarchy of Homecare might be, the jury could reasonably

find that Ciulla contributed significantly to the termination

decision officially made by Jacobsen.16 In the language of

Reeves, a jury could find that Ciulla “was motivated by age-based

15

While the “perks” received by Ciulla are insufficient,

per se, to support the inference that he had power over the

decision to terminate Russell, they do provide evidence of his

“informal” power within the organization — a power which played a

role in Jacobsen’s decision. Similarly, in Reeves, the Supreme

Court took into account that a “letter authored by [the

individual with the discriminatory animus] indicated that he

berated other company directors, who were supposedly his co-

equals, about how to do their jobs.” 120 S. Ct. at 2111. Thus,

as in this case, the evidence demonstrated that an employee

possessed greater power than other employees at his level,

strengthening the link between the age-related remarks and the

employment decision and providing further support for the

reasonableness of the jury’s verdict. See id.

16

Defendants also argue that the “same actor” inference

applies. The “same actor” inference arises when the individual

who allegedly discriminated against the plaintiff was the same

individual who hired the plaintiff and gives rise to an inference

that discrimination was not the motive behind plaintiff’s

termination. See Brown, 82 F.3d at 658. In this case,

defendants assert that the same person who hired Russell,

Jacobsen, was also the same person who fired her. However, it

was not uncontested that Jacobsen hired Russell, and thus, the

inference is not automatic. Russell presented evidence that she

was hired and then did a courtesy interview with Jacobsen, who

had also recently been hired. Again, the jury had both versions

before it and had the opportunity to take the information into

account in whatever fashion it found credible. We will not

substitute our interpretation for that of the jury. Further, we

also note that the “same actor” inference does “not rule out the

possibility that an individual could prove a case of

discrimination.” Id.

20

animus and was principally responsible for [the plaintiff’s]

firing.” Reeves, 120 S. Ct. at 2110.17 His remarks contribute to

the evidence demonstrating that the jury’s finding of age

discrimination was not unreasonable.

In light of the Supreme Court’s admonition in Reeves, our

pre-Reeves jurisprudence regarding so-called “stray remarks” must

be viewed cautiously.18 See Reeves, 120 S. Ct. at 2111. Before

Reeves was decided by the Supreme Court, we warned that “the

‘stray remark’ jurisprudence is itself inconsistent with the

deference appellate courts traditionally allow juries regarding

their view of the evidence presented and so should be narrowly

cabined.” Vance v. Union Planters Corp., 209 F.3d 438, 442 n.4

(5th Cir. 2000). Just so. Age-related remarks are appropriately

taken into account when analyzing the evidence supporting the

jury’s verdict (even if not in the direct context of the

decision19 and even if uttered by one other than the formal

17

We also note that the fact that Jacobsen herself was

similar in age to Russell, although relevant and appropriate for

the jury to consider, “is certainly not dispositive.” Reeves,

120 S. Ct. at 2111 (stating that evidence of defendant employing

other employees over the age of fifty does not negate

discriminatory motivation regarding the plaintiff).

18

See, e.g., Boyd v. State Farm Ins. Co., 158 F.3d 326

(5th Cir. 1998).

19

In our post-Reeves case, Rubinstein v. Administrators of

the Tulane Educational Fund, we affirmed summary judgment for the

employer on several claims (and affirmed the jury verdict for the

employee on the remaining claim). See 218 F.3d 392 (5th Cir.

2000). The Rubinstein plaintiff’s case fell into the narrow

exceptions crafted by Reeves that “the record conclusively

21

decisionmaker, provided that the individual is in a position to

influence the decision).

Judge Posner recently explained the distinction between

cases in which “stray remarks” were not taken into account in

examining the plaintiff’s case and cases in which such remarks

are appropriately considered:

All that these [“stray remarks”] cases hold — and all

they could hold and still make any sense — is that the

fact that someone who is not involved in the employment

decision of which the plaintiff complains expressed

discriminatory feelings is not evidence that the

decision had a discriminatory motivation. That is

simple common sense. It is different when . . . it may

be possible to infer that the decision makers were

influenced by [the discriminatory] feelings in making

their decision. . . . Emanating from a source that

influenced the personnel action (or nonaction) of which

these plaintiffs complain, the derogatory comments

became evidence of discrimination.

Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir.

2000) (emphasis in original) (internal citations omitted).

revealed some other, nondiscriminatory reason . . ., or [that]

the plaintiff created only a weak issue of fact as to . . .

[pretext] and there was abundant and uncontroverted independent

evidence that no discrimination had occurred.” 120 S. Ct. at

2109. In marked contrast to the instant case, the Rubinstein

record was “replete with evidence of [the employee’s] poor . . .

evaluations,” Rubinstein, 218 F. 3d at 400, evidence that was so

overwhelming as to make summary judgment for the employer

appropriate in spite of evidence of discriminatory animus in the

form of remarks that the plaintiff wholly failed to tie to any

potentially relevant time frame. In our remarks jurisprudence,

Rubinstein stands only for the proposition that an overwhelming

case that the adverse employment actions at issue were

attributable to a legitimate, nondiscriminatory reason will not

be defeated by remarks that have no link whatsoever to any

potentially relevant time frame. Were we to read more into

Rubenstein in this regard, it would be in direct conflict with

Reeves.

22

We determine that there was sufficient evidence for the jury

to find that defendants discriminated against Russell on the

basis of age. Russell established a prima facie case, introduced

sufficient evidence for the jury to reject the defendants’ reason

for her termination, and produced additional evidence of age-

based animus. See Reeves, 120 S. Ct. at 2112. This case was

“based upon the accumulation of circumstantial evidence and the

credibility determinations that were required. We conclude that

‘reasonable men could differ’ about the presence of age

discrimination, Boeing, 411 F.2d at 374, and we must thus reverse

the district court’s judgment [as a matter of law] and reinstate

the jury’s verdict.” Normand, 927 F.2d at 864-65.

3. Willful Violation of the ADEA

The ADEA is willfully violated if the employer “acts in

‘reckless disregard’ of the requirements of the ADEA.” Normand,

927 F.2d at 865 (citing Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 128-29 (1985)). This test applies not only to

cases in which there is formal discrimination, but also to cases

in which the age factor is used on an informal, ad hoc basis.

See Hazen Paper Co. v. Biggins, 507 U.S. 604, 616-17 (1993). An

employer who willfully violates the ADEA is subject to liquidated

damages. See 29 U.S.C. § 626(b) (1999). “The Supreme Court has

held that liquidated damages are a punitive sanction and should

be reserved for the most egregious violations of the ADEA.”

23

Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470

(5th Cir.), cert. denied, 493 U.S. 842 (1989) (citing Trans World

Airlines, 469 U.S. at 125).

As we have discussed in Part III.B, supra, both sides

presented evidence supporting their respective versions of the

events. While the jury could quite reasonably find defendants

violated the ADEA, we conclude that the same cannot be said for a

willful violation. We do not find evidence in the record to

support the jury’s determination that defendants’ conduct was

such that it amounted to “reckless disregard.” See Trans World

Airlines, 469 U.S. at 127-28 (stating that simply knowing of the

potential applicability of the ADEA does not meet the “reckless

disregard” standard because it would be contrary to legislative

intent by making every violation a willful violation); see also

Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999) (stating

that there was sufficient evidence for the jury to conclude

employer’s actions were willful when plaintiff presented evidence

of company memorandum that categorized employees by age); Burns

v. Tex. City Refining, Inc., 890 F.2d 747, 751-52 (5th Cir. 1989)

(finding a willful violation when plaintiff presented evidence

that employer acted to terminate him because of his age and

before his pension benefits vested); Powell v. Rockwell Int’l

Corp., 788 F.2d 279, 287-88 (5th Cir. 1986) (affirming jury

finding of willfulness in a case in which jury found that

plaintiff was fired in retaliation for exercising his ADEA

24

rights). As such, the jury finding of willfulness is not

supported by sufficient evidence. Because the jury awarded

Russell only back pay, and no liquidated damages, we do not

disturb the jury’s damage award.

V. CONCLUSION

For the above-stated reasons, the judgment of the district

court is REVERSED in part and the case is REMANDED with

instructions to reinstate the jury verdict as to a violation of

the ADEA and damages. We AFFIRM the judgment of the district

court as to a willful violation of the ADEA. Costs shall be

borne by defendants.

25