Noble v. Brinker Intl

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0419p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

MARCUS A. NOBLE,

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No. 02-4190

v.

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BRINKER INTERNATIONAL, INC., -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 00-00663—Algenon L. Marbley, District Judge.

Argued: April 20, 2004

Decided and Filed: December 3, 2004

Before: RYAN, DAUGHTREY, and CLAY, Circuit Judges.

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COUNSEL

ARGUED: Thomas L. Rosenberg, ULMER & BERNE, Columbus, Ohio, for Appellant. Laren E. Knoll,

Columbus, Ohio, for Appellee. ON BRIEF: Thomas L. Rosenberg, Rebecca B. Jacobs, ULMER &

BERNE, Columbus, Ohio, for Appellant. Laren E. Knoll, Dennis M. McGuire, Columbus, Ohio, for

Appellee.

RYAN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. CLAY, J. (pp.

13-17), delivered a separate dissenting opinion.

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OPINION

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RYAN, Circuit Judge. In this civil rights case, the plaintiff, Marcus A. Noble, alleges that the

defendant, Brinker International, Inc., acting by and through its agent, Anthony Ficorilli, terminated Noble’s

employment because of his race. After a jury found in favor of the plaintiff, the defendant filed a motion

for judgment as a matter of law or, in the alternative, for a new trial. This motion was denied, and the

defendant now appeals from the district court’s denial of its motion.

The legal issue presented—whether the district court erred in denying the defendants’ request for

judgment as a matter of law—is relatively simple, but the answer is obtained, for reasons we shall explain,

only by conducting a close examination of the facts of the case in order to determine whether they are

legally sufficient to support the jury’s finding of intentional race discrimination. Therefore, we must burden

our opinion with an extensive discussion of those facts, which, as will be explained, do not support the

1

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 2

jury’s verdict and should have resulted in a judgment for the defendant, as a matter of law. Therefore, we

must reverse.

I.

A.

The defendant, Brinker International, is a holding company whose subsidiaries operate a number

of concept restaurants throughout the country; one of these restaurants is Romano’s Macaroni Grill in

Worthington, Ohio. Noble, a black male, began working as a server at the Macaroni Grill on July 9, 1998.

At that time, Linda Lawrence worked as the restaurant’s general manager. Noble claims that Lawrence

subjected him to disparate treatment in the terms and conditions of his employment during her tenure as

general manager of the restaurant. Noble complained to Lawrence and others about what he perceived to

be Lawrence’s racial discrimination. Noble was permitted to introduce a significant amount of evidence

at trial pertaining to Lawrence’s allegedly discriminatory treatment of him and other minority employees.

In January 1999, however, Lawrence transferred out of the Worthington Macaroni Grill to a

Macaroni Grill in Maine. Anthony Ficorilli replaced her as general manager of the restaurant. After

Lawrence transferred out of Ohio, she and Ficorilli met once to discuss the restaurant. Both testified that

they did not discuss Marcus Noble. Noble testified that “[t]hings were a lot better” after Ficorilli came to

the restaurant. At trial, Noble testified that “99.9 percent” of the “threats and harassment” he experienced

at the restaurant came from Lawrence. In his sworn deposition, also introduced at trial, Noble testified that

no one but Lawrence subjected him to “threats and harassment.” Noble never complained to Ficorilli or

anyone else that any of the actions taken by Ficorilli prior to Noble’s termination were taken on account of

race.

On Thursday, April 15, or Friday, April 16, 1999, Ficorilli noticed that he had an evening shift that

needed to be covered by a server that Saturday, April 17, 1999. Ficorilli claims that he asked Noble if he

would be willing to cover the shift, and Noble agreed to do so. Ficorilli states that he confirmed the

arrangement with Noble at least twice during their conversation. The alleged understanding between

Ficorilli and Noble was not noted in the place in which such shifts are usually recorded, and Brinker was

unable to produce any written record of the agreement. After Noble did not appear for work on Saturday

and did not call to explain his absence, Ficorilli stated that he decided to discharge Noble for failing to

appear for work or call on Saturday, April 17, 1999. An assistant manager testified that he mentioned

Noble’s prior claims of discrimination to Ficorilli “at the time that [Noble] had missed a shift . . . that he

had agreed to work for Tony Ficorilli.” Aside from the assistant manager’s testimony that he made Ficorilli

“aware that there was a history there,” there was no evidence that Ficorilli was otherwise aware of the prior

contentious history between Lawrence and Noble. When Noble attempted to return to work on Sunday,

April 18, he was informed that he had been terminated for being a “no call/no show” the previous evening.

Noble, on the other hand, claims that he never agreed to cover a shift on Saturday, April 17, 1999.

He contends that Ficorilli fabricated the incident to provide grounds for firing him. Noble argues that the

real reason for his termination was his race.

B.

Noble filed suit, alleging that both Lawrence’s actions and Ficorilli’s decision to terminate his

employment violated 42 U.S.C. § 2000e-2(a)(1) (Title VII), 42 U.S.C. § 1981, Ohio Revised Code § 4112,

and Ohio public policy. Brinker filed a motion for summary judgment, which the district court granted only

as to Noble’s Ohio public policy claim. The court denied Brinker’s motion with respect to Noble’s claims

brought under the above-mentioned sections of state and federal law. Although denying Brinker’s motion

for summary judgment, the district court held that the only adverse employment action to which Noble had

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 3

been subjected was his termination. That is, the court held that the discriminatory treatment Noble allegedly

suffered at the hands of Lawrence was not actionable.

The case proceeded to trial, but the district court dismissed the jury after it was unable to reach a

unanimous verdict. The case again proceeded to trial, and Brinker moved for judgment as a matter of law

at the end of the plaintiff’s case-in-chief, again at the end of the defendant’s case, and again at the close of

all evidence. These motions were denied. The jury returned a verdict in favor of the plaintiff, and the

district court entered judgment accordingly. Brinker filed a renewed motion for judgment as a matter of law

or, in the alternative, for a new trial. The district court denied this motion as well, and Brinker now appeals.

II.

We review a district court’s denial of a motion for judgment as a matter of law or a renewed motion

for judgment as a matter of law de novo. United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir.

2003). “In doing so, we use the same standard of review used by the district court.” Id. That is, judgment

as a matter of law “may be granted only if in viewing the evidence in the light most favorable to the

non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come

to but one conclusion, in favor of the moving party.” Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d

595, 598 (6th Cir. 2001).

III.

A.

Title VII forbids an employer “to . . . discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

The Ohio courts have held that the evidentiary standards and burdens of proof

applicable to a claimed violation of Title VII . . . are likewise applicable in determining

whether a violation of Ohio Rev. Code § 4112 has occurred. Thus, the federal case law

governing Title VII actions is generally applicable to cases involving alleged violations of

Chapter 4112.

Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir. 1999). Finally, 42 U.S.C. § 1981 prohibits racial

discrimination in the making and enforcing of private contracts. See 42 U.S.C. § 1981. “The elements of

[a] prima facie case as well as the allocations of the burden of proof are the same for employment claims

stemming from Title VII and § 1981.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000)

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).

B.

Brinker argues that “[t]he district court erred in denying [the defendant’s renewed] motion for

judgment as a matter of law because there was no legally sufficient evidentiary basis for a reasonable jury

to find for Noble on his claim of illegal discrimination.” Among other things, Brinker argues that it was

entitled to judgment as a matter of law because “Noble . . . failed to establish a prima facie case of

discrimination and [did] not present[] evidence to support his claim that [the defendant] discharged him

because of his race.”

When entertaining a motion for judgment as a matter of law following a trial on the merits in a Title

VII case, “‘a reviewing court should not focus on the elements of the prima facie case but should assess the

ultimate question of discrimination.’” Gray, 263 F.3d at 599 (quoting Kovacevich v. Kent State Univ., 224

F.3d 806, 821 (6th Cir. 2000)). The Supreme Court has explained:

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 4

when the defendant fails to persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for

the plaintiff’s [termination], the factfinder must then decide whether the [termination] was

discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine

presumption “drops from the case,” and “the factual inquiry proceeds to a new level of

specificity.”

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983) (footnote and internal citations

omitted). That is, “the sole remaining issue [is] ‘discrimination vel non.’” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Aikens, 460 U.S. at 714). Consequently, “we cannot simply

hold that the plaintiff’s failure to provide evidence of an essential element of [his] prima facie case is

dispositive here. Rather, we must look to the ultimate question—whether the plaintiff has proven that [his]

discharge was intentionally discriminatory.” Gray, 263 F.3d at 599.

In this case, the district court denied Brinker’s motion for summary judgment, holding, inter alia,

that Noble had established a prima facie case of race discrimination with respect to his termination. Noble

v. Brinker Int’l, Inc., 175 F. Supp. 2d 1027, 1038 (S.D. Ohio 2001). As the district court was not persuaded

to dismiss this suit for lack of a prima facie case, and as Brinker did “everything that would be required of

[it] if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer

relevant.” Aikens, 460 U.S. at 715. Stated otherwise, we are not permitted to decide whether the district

court erred in holding that Noble made out a prima facie case. Instead, our duty, given Aikens, is simply

to determine whether Noble produced sufficient evidence to support the jury’s finding of intentional

discrimination. See Gray, 263 F.3d at 599; Kovacevich, 224 F.3d at 821.

C.

“The ultimate question in every employment discrimination case involving a claim of disparate

treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves, 530 U.S. at 153; see

also Hicks, 509 U.S. at 511; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). “‘The

ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.’” Hicks, 509 U.S. at 518 (quoting Burdine, 450 U. S. at 253).

“‘[The plaintiff] may succeed in this [i.e., in persuading the court that she has been the victim of intentional

discrimination] either directly by persuading the court that a discriminatory reason more likely motivated

the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’”

Id. at 517 (quoting Burdine, 450 U. S. at 256). With respect to the indirect method of proof, which is what

is involved in this case, the Supreme Court has said that “[i]t is not enough . . . to disbelieve the employer;

the factfinder must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519 (emphasis

in original). The Court explained that “Title VII does not award damages against employers who cannot

prove a nondiscriminatory reason for adverse employment action, but only against employers who are

proven to have taken adverse employment action by reason of (in the context of the present case) race.” Id.

at 523-24.

Nevertheless, disbelief of an employer’s proffered reason may play an important role in a Title VII

case that is proceeding under the indirect method of proof. In Hicks, the Supreme Court explained that

“[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice

to show intentional discrimination.” Id. at 511. The Supreme Court reiterated this standard in Reeves,

holding that “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 employer unlawfully

discriminated.” Reeves, 530 U.S. at 148. The Court explained that “[p]roof that the defendant’s explanation

is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive.” Id. at 147. Reeves did not, however, abrogate the Court’s

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 5

holding in Hicks that mere disbelief of an employer’s proffered reason is insufficient to support a finding

of intentional discrimination.

With these principles in mind, we turn to an examination of the evidence presented by Noble in

support of his claim that he was discharged because of his race. “Under Rule 50, a court should render

judgment as a matter of law when ‘a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.’” Id. at 149 (citation omitted).

If, in this case, there is no legally sufficient evidentiary basis for a reasonable jury to find that Noble was

discharged because of his race, we must reverse.

1.

Noble presented a great deal of evidence at trial which, when viewed in the light most favorable to

the plaintiff, tended to show that Linda Lawrence may have harbored racial animosity toward Noble and

other black employees at the restaurant. Noble claimed that “[i]mmediately upon beginning work, [he]

experienced discriminatory treatment from Ms. Lawrence.” He presented evidence from which a jury might

have concluded that Lawrence discriminated against him in the administration of an oral examination which

tested the plaintiff’s knowledge of the menu. He also presented evidence that may have shown that

Lawrence unjustifiably harassed him concerning his work at another Brinker restaurant. Noble accused

Lawrence of instructing a hostess not to seat patrons in his section because of his race. He alleged that

Lawrence wrote him up for infractions, while she did not write up white employees for similar infractions.

He further alleged that Lawrence wrote him up for infractions he did not commit. These write-ups

eventually led to a suspension that Noble contends was motivated by racial animosity. Noble also presented

evidence at trial from which a jury might have concluded that Lawrence otherwise harassed and threatened

him on account of his race and treated other black employees in a discriminatory manner. In light of all of

this evidence, it is hardly surprising the jury was persuaded to compensate Noble.

Nevertheless, there is a problem. “While this evidence might raise an inference of discrimination

regarding plaintiff’s treatment while employed, this is not the wrong for which plaintiff seeks recovery; viz.,

discriminatory discharge . . . .” Shah v. Gen. Elec. Co., 816 F.2d 264, 271 (6th Cir. 1987). As we have

noted, the district court held that none of the above-mentioned actions resulted in an actionable “adverse

employment action.” Furthermore, Lawrence did not discharge Noble. In fact, she was no longer the

manager at the time; she had not worked in that restaurant during the three months immediately preceding

Noble’s discharge; and she worked halfway across the country at the time of the discharge. Noble testified

that Lawrence was the only person who discriminated against him on the basis of race during his tenure at

the Worthington Macaroni Grill. Noble never complained to Ficorilli or anyone else that any of the actions

taken by Ficorilli, aside from his presently contested discharge, were taken on account of his race.

Furthermore, Noble produced no evidence that Ficorilli otherwise engaged in a pattern or practice of racial

discrimination against minorities or anyone else. Instead, Noble seeks to impute the alleged racial animus

of Lawrence, who was neither present nor a decisionmaker, to Ficorilli.

We must consider, therefore, whether Noble presented sufficient evidence to impute Lawrence’s

alleged racial animus to Ficorilli. See, e.g., Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 876 (6th Cir.

2001); Wilson v. Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992). Although we usually encounter the issue

of imputation in the context of imputing the comments or actions of a subordinate to a manager or other

decisionmaker, see, e.g., Christian, 252 F.3d 862; Wilson, 952 F.2d 942, the same principles apply here,

where Noble seeks to impute the alleged animus of one manager, Lawrence, to a succeeding manager,

Ficorilli. In cases of this type, “[t]he determinative question is whether [the plaintiff] has submitted

evidence that [a particular employee’s] racial animus was a cause of the termination.” Wilson, 952 F.2d at

946. In other words, a plaintiff must submit competent evidence that one employee’s “discriminatory

motives somehow influenced” the decisionmaker. Id.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 6

Noble has presented no evidence from which a reasonable jury could impute Lawrence’s alleged

racial animus to Ficorilli. Noble cites cases in which courts have found an adequate nexus where the

decisionmaker relied on the assessment or evaluation of a “tainted” employee. See, e.g., Christian, 252 F.3d

862; Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). These cases are of no help to Noble, who

presented no evidence that Ficorilli in any way relied on Lawrence’s evaluations or opinions, or otherwise

acted as Lawrence’s “cat’s-paw.” See Shager, 913 F.3d at 405. The “cat’s-paw” theory is simply

inapplicable to the facts of this case.

Furthermore, Noble presented no evidence that Lawrence’s alleged opinions or attitudes influenced

Ficorilli’s decision to terminate the plaintiff or otherwise caused the plaintiff’s discharge. See Wilson, 952

F.2d at 946. Lawrence and Ficorilli never worked together, and they met only once. Noble presented no

evidence showing that Lawrence and Ficorelli ever discussed Noble. In fact, the only evidence presented

at trial shows that they did not. Cf. Wells v. New Cherokee Corp., 58 F.3d 233, 237-38 (6th Cir. 1995). In

Wells, we imputed a supervisor’s animus to the ultimate decisionmaker because the evidence showed that

the two “worked closely together and consulted with each other on personnel decisions. [They] themselves

testified that they acted jointly.” Id. at 238. There is no such evidence in this case. Nor is there any

evidence that Lawrence had any role in Noble’s termination, that she occupied any significant role in the

corporate hierarchy, or that there was a direct temporal nexus between her allegedly discriminatory conduct

and the adverse employment action. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357

(6th Cir. 1998).

The evidence showed that Ficorelli may have learned of prior problems between Lawrence and

Noble after Lawrence left. Noble argues that Ficorilli’s mere knowledge of the contentious history between

Lawrence and Noble “was enough to create an issue of ‘causal nexus’ that was properly submitted to the

jury.” We disagree. Ficorilli’s mere knowledge of the conflict between Noble and Lawrence is insufficient

as a matter of law to establish a causal nexus between Lawrence’s alleged animosity toward Noble and

Ficorilli’s action. See Wilson, 952 F.2d at 946. Noble speculates that Lawrence’s contaminated perception

of him must have been transmitted to Ficorilli, and Ficorilli must have been contaminated by racism as well.

Although Noble is certainly entitled to his opinion, mere speculation cannot satisfy his burden of proving

that Ficorilli discharged him on account of race.

In short, Noble failed to present evidence that could establish a causal nexus between Lawrence’s

allegedly discriminatory treatment of Noble and Ficorilli’s subsequent decision to terminate the plaintiff’s

employment. Unless the statements or conduct of nondecisionmakers can be imputed to the ultimate

decisionmaker, such statements or conduct “‘[can not] suffice to satisfy the plaintiff’s burden . . .’ of

demonstrating animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (quoting Price

Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)); see also Cardenas v. AT&T

Corp., 245 F.3d 994, 1000 (8th Cir. 2001). Accordingly, we hold that a reasonable jury could not have

inferred racial discrimination on the part of Ficorilli based upon the allegedly discriminatory prior acts of

Lawrence. But that does not end the matter.

2.

Aside from the evidence regarding Lawrence’s alleged animus, Noble seeks to rely on the rule from

Reeves, which he states as follows: “a prima facie case coupled with evidence that employers [sic] asserted

justification is false may permit a trier of fact to conclude the employer unlawfully discriminated.” The

plaintiff argues that he has “clearly met his burden” under this standard. First, he argues that there was

sufficient evidence to support the jury’s rejection of the defendant’s proffered reason for this discharge.

Second, Noble argues that as there was sufficient evidence to support the jury’s rejection of the defendant’s

proffered reason, the district court properly denied the defendant’s motion for judgment as a matter of law.

He offers two reasons why this is so. We shall address each of these arguments in turn.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 7

a.

We have carefully examined the record, the briefs, and the parties’ oral arguments, and we are

satisfied that Noble presented sufficient evidence to permit a reasonable jury to reject the defendant’s

proffered reason for Noble’s termination. We have “held that ‘[t]he jury may not reject an employer’s

explanation . . . unless there is a sufficient basis in the evidence for doing so.’” Gray, 263 F.3d at 600

(emphasis omitted) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.

1994)). In this case, the parties vigorously dispute whether Noble was actually scheduled to work on

Saturday, April 17, 1999. Noble argues that he did not agree to pick up the shift, while Ficorilli contends

that he did. There was no written evidence confirming that Noble was, in fact, scheduled to work on that

day. Consequently, the question whether the defendant’s proffered reason had a basis in fact came down

to a credibility determination between two witnesses. “Witness credibility is solely within the jury’s

province, and this court may not remake credibility determinations.” United States v. L.E. Cooke Co., 991

F.2d 336, 343 (6th Cir. 1993); see also Wells, 58 F.3d at 237. Accordingly, we conclude that a reasonable

jury could have found that Brinker’s proffered reason had no basis in fact, which is a sufficient ground for

rejecting an employer’s explanation. See Gray, 263 F.3d at 600.

b.

In light of Reeves and the sufficiency of the evidence supporting the jury’s rejection of the

defendant’s proffered reason, Noble argues that we must affirm because we are “precluded from considering

whether [he] proved his prima facie case.” He argues that the district court’s ruling that he had, in fact,

made out a prima facie case is determinative; “[t]his was a preliminary matter, which cannot be revisited

at a later time.” Noble relies on the Supreme Court’s holding in Aikens, as well as our holding in EEOC

v. Avery Dennison Corp.,104 F.3d 858 (6th Cir. 1997). In Aikens, the Supreme Court stated that “when the

defendant fails to persuade the district court to dismiss the action for lack of a prima facie case,” and when

the case proceeds to a full trial on the merits, the district court is “in a position to decide the ultimate factual

issue in the case,” that is, “‘[whether] the defendant intentionally discriminated against the plaintiff.’” 460

U.S. at 714-15 (quoting Burdine, 450 U.S. at 253). At that point, it is no longer material whether the

plaintiff in fact properly made out a prima facie case. Id. at 715. “Avery Dennison stands for the simple

proposition that in reviewing the facts of a discrimination claim after there has been a full trial on the merits,

a district court or an appellate court must focus on the ultimate question of discrimination rather than on

whether a plaintiff made out her prima facie case.” Kovacevich, 224 F.3d at 825. The Avery court stated

that “[f]ollowing a trial on the merits, [neither] the district court [nor this court], therefore, can[] return to

a consideration of whether plaintiff has proven its prima facie case. This is a preliminary matter which

cannot be revisited at a later time.” 104 F.3d at 861. The Avery court further explained this point, stating:

“The proper inquiry following the presentation of all evidence in a Title VII case is whether plaintiff has

proven its case by a preponderance [of the evidence] . . . . At this stage in the case, the relevant inquiry

should not be whether plaintiff has proven its prima facie case.” Id. at 862. But that is not to say that the

evidentiary underpinnings of a plaintiff’s prima facie case are irrelevant or insulated from examination by

this court to aid its determination whether the evidence in toto is sufficient to support a finding of intentional

discrimination.

In Reeves, the Supreme Court held that, in appropriate circumstances, “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 employer unlawfully discriminated.” 530 U.S. at 148. Noble seeks to

synthesize the holdings in Aikens, Avery, and Reeves as establishing a rule that once the trial court has ruled

that a prima facie case has been shown and the case has proceeded to trial, the evidence introduced in

support of the prima facie case “drops out of the picture,” with the result that a plaintiff is immune from

judgment as a matter of law so long as there is sufficient evidence to warrant the jury’s rejection of the

employer’s proffered reason.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 8

We reject Noble’s reading of these cases because it is inconsistent with the Supreme Court’s

teachings. Noble’s argument might have more force if it were not for the Supreme Court’s holding in Hicks.

As noted above, the Court held that it is not sufficient for a jury to merely disbelieve the reason offered by

the defendant. Hicks, 509 U.S. at 519. “That the employer's proffered reason is unpersuasive, or even

obviously contrived, does not necessarily establish that the plaintiff's proffered reason of race

[discrimination] is correct.” Id. at 524. Instead, the jury must believe the reason offered by the plaintiff,

that is, it must believe that the plaintiff was the victim of intentional discrimination. Id. at 519. The Court

stated that “proving the employer’s reason false becomes part of (and often considerably assists) the greater

enterprise of proving that the real reason was intentional discrimination.” Id. at 517 (emphasis added).

Nevertheless, Noble asks this court to hold that as we may not return to a consideration of whether a

plaintiff has proven a prima facie case, we must affirm the district court’s denial of the defendant’s motion

for judgment as a matter of law simply because there was sufficient evidence to support the jury’s rejection

of the defendant’s proffered reason. Such a rule would cut the heart out of Hicks, and we are not free to do

so.

Noble’s argument must also be rejected because it is inconsistent with Reeves itself. In that case,

a plaintiff in an age discrimination case obtained a favorable verdict from a jury. Reeves, 530 U.S. at 139.

The district court denied the defendant’s renewed motion for judgment as a matter of law (judgment

notwithstanding the verdict), and the defendant appealed. Id. The Fifth Circuit reversed, holding that the

plaintiff “had not introduced sufficient evidence to sustain the jury’s finding of unlawful discrimination.”

Id. As in this case, the court of appeals “acknowledged that [the plaintiff] ‘very well may’ have offered

sufficient evidence for ‘a reasonable jury [to] have found that [the defendant’s] explanation for its

employment decision was pretextual.’” Id. (citation omitted). The Supreme Court stated that the Fifth

Circuit had erred by “ignor[ing] the evidence supporting [the plaintiff’s] prima facie case and challenging

respondent’s explanation for its decision.” Id. at 146. It was error for the appellate court to demand

additional evidence of discrimination from the plaintiff. Id.

Although it is not necessary for a plaintiff to introduce additional evidence of discrimination, id.,

it is certainly permissible for a plaintiff to prove his case by doing so. For this reason, we undertook the

above evaluation of the additional evidence Noble presented. Although Noble’s failure to produce

additional evidence is not, by itself, fatal to his claim, we must determine whether Noble satisfied the

standard articulated in Reeves.

If the law were as Noble contends, Reeves would have held merely that sufficient evidence to find

that an employer’s asserted justification is false may permit the trier of fact to conclude that the employer

unlawfully discriminated. The Reeves Court was well aware of its prior holding in Aikens and quoted

extensively from it, but the Court nevertheless required that a plaintiff present both evidence supporting a

prima facie case and evidence sufficient to support the factfinder’s disbelief of the defendant’s proffered

reason. Id. at 148. In fact, the Court criticized the court of appeals for “ignor[ing] the evidence supporting

[the plaintiff’s] prima facie case.” Id. at 146. The Court explained Aikens, stating “although the

presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden of production,

the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case ‘and inferences

properly drawn therefrom.’” Id. at 143 (citations omitted). Likewise, in reviewing a Rule 50 motion, it is

appropriate for a court to “consider the evidence establishing the plaintiff’s prima facie case.” Id. In

Reeves, the Court reexamined each element of the plaintiff’s prima facie case, stating “[i]t is undisputed that

[the plaintiff] satisfied this burden here.” Id. at 142. If Aikens stood for the proposition that an appellate

court must always assume that there is evidence supporting what the lower court accepted as the plaintiff’s

prima facie case, the Supreme Court’s reasoning and holding in Reeves would be inexplicable. Aikens and

Avery make clear that a court may not, after a trial on the merits, grant judgment as a matter of law merely

because the plaintiff failed to establish a prima facie case, but when the indirect method of proof is the only

remaining avenue by which a plaintiff can establish his claim of intentional discrimination, it is necessary

and appropriate for a court to evaluate the evidence supporting the plaintiff’s prima facie case. In fact, the

Supreme Court’s criticism of the Fifth Circuit in Reeves demands as much. To hold as Noble requests

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 9

“would be effectively to insulate an entire category of employment discrimination cases from review under

Rule 50, and [the Supreme Court has] reiterated that trial courts should not ‘“treat discrimination differently

from other ultimate questions of fact.”’” Reeves, 530 U.S. at 148 (quoting Hicks, 509 U.S. at 524 (quoting

Aikens, 460 U.S. at 716)).

Our conclusion is supported by the reasoning of this court and other courts. In Kovacevich, we

reaffirmed Avery but explained: “Of course, there is nothing to prevent the court from considering evidence

that also bears on that prima facie case as long as it does so in order to address the ultimate question of

discrimination.” 224 F.3d at 825; see also Gray, 263 F.3d at 600; Roh v. Lakeshore Estates, Inc., 241 F.3d

491, 497-99 (6th Cir. 2001). In Peters v. Lincoln Electric Co., 285 F.3d 456 (6th Cir. 2002), we stated: “An

outcome consistent with Reeves is still dependent on [the plaintiff’s] prima facie case and his showing by

a preponderance of the evidence that [the defendant’s] asserted reason was false.” Id. at 473 (emphasis in

original). In Brown v. Packaging Corp. of America, 338 F.3d 586 (6th Cir. 2003), we noted that, Aikens

notwithstanding, the “elements of a prima facie case frequently are still relevant after the case has gone to

the jury.” Id. at 597 n.3 (Clay, J., writing separately for the court with respect to Part II.B of the opinion).

The Court of Appeals for the D.C. Circuit has explained:

Of course, the case has been tried, so the question whether [the plaintiff] established a prima

facie case is now irrelevant. This does not mean, however, that in our analysis of “the

ultimate question of discrimination vel non,” we are obliged to pretend that there is evidence

supporting a prima facie case when in fact there is not. . . . Because that evidence standing

alone has virtually no probative value, we conclude that the district court should have

granted the [defendant’s] motion for judgment as a matter of law.

Barbour v. Browner, 181 F.3d 1342, 1347 (D.C. Cir. 1999) (internal citations omitted). The Third Circuit

has stated, citing Aikens, that when reviewing “evidence after a jury verdict, we do not concern ourselves

with the McDonnell Douglas burden shifting analysis, but proceed to the ultimate issue of whether [the

plaintiff] has proven [discrimination] by a preponderance of the evidence.” McNulty v. Citadel Broad. Co.,

Nos. 01-3902/4046, 2003 WL 500171, at *5 (3d Cir. Feb. 26, 2003) (unpublished disposition).

Nevertheless, the court explained: “In so doing . . . our inquiry into the sufficiency of the evidence does not

differ markedly from inquiring into whether [the plaintiff] has submitted evidence sufficient to establish the

elements of a prima facie case and then sustained his burden of proving that [the defendant’s] reasons were

a mere pretext . . . .” Id.; see also EEOC v. Bd. of Regents of Univ. of Wis. Sys., 288 F.3d 296, 301-02 (7th

Cir. 2002); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).

In light of Reeves, Hicks, and the other cases we have cited and discussed, we reject Noble’s

argument that this court must affirm a district court’s denial of a motion for judgment as a matter of law

whenever a plaintiff has presented sufficient evidence to support the jury’s rejection of the defendant’s

proffered justification. At the risk of redundance, “[i]t is not enough . . . to disbelieve the employer; the

factfinder must believe the plaintiff’s explanation of intentional discrimination.” Hicks, 509 U.S. at 519.

Accordingly, we must determine whether Noble presented sufficient evidence to permit a reasonable jury

to “believe the plaintiff’s explanation of intentional discrimination.” Id.

c.

We have carefully examined the record, the parties’ arguments, and the law, and we conclude that

Noble failed to carry his burden of proof with respect to “the ultimate question of discrimination.” As noted

above, because this case has been tried on the merits, the question now before us is one of “discrimination

vel non,” not simply whether Noble failed to make out a prima facie case. Aikens, 460 U.S. at 714.

Nevertheless, as in Reeves, we turn to an examination of the evidence supporting the elements of Noble’s

prima facie case because that alternative is the only remaining avenue by which Noble might raise the

inference of discrimination necessary to sustain the jury’s verdict.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 10

Noble argues that he did, in fact, present sufficient evidence before the district court to support a

prima facie case. It is undisputed that Noble introduced evidence to support the first three elements of his

prima facie case; that is, (1) he was a member of a protected class; (2) he suffered an adverse employment

action; and (3) he was qualified for the position from which he was discharged. See Clayton v. Meijer, Inc.,

281 F.3d 605, 610 (6th Cir. 2002). A plaintiff may make out the fourth element of a prima facie case by

showing that he was either replaced by someone outside the protected class or treated differently than

similarly situated, non protected employees. See Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.

2003); Clayton, 281 F.3d at 610. Noble does not argue that he was replaced by someone outside the

protected class; instead, he points out that “[i]n order to make his prima facie case, [he] offered Michael

Brahler as a similarly-situated white employee . . . .” Noble also makes an oblique reference to “an

employee named ‘Will.’”

Absent proof that employees outside the protected class were similarly situated but were not

discharged, Noble presented no evidence that could have permitted a reasonable jury to conclude that the

defendant, acting by and through Ficorilli, intentionally discriminated against the plaintiff because of his

race. For the following reasons, we conclude that Noble also failed to produce evidence showing that a

similarly situated employee outside the protected class was not discharged.

i.

We have held that to be considered “similarly situated” in the disciplinary context, “the plaintiff

must show that the ‘comparables’ are similarly-situated in all respects.” Mitchell v. Toledo Hosp., 964 F.2d

577, 583 (6th Cir. 1992) (emphasis in original). In later cases, we clarified that “the plaintiff and the

employee with whom the plaintiff seeks to compare himself or herself must be similar[, that is, ‘nearly

identical,’] in ‘all of the relevant aspects.’” Ercegovich, 154 F.3d at 352 (emphasis in original) (citation

omitted).

Thus, to be deemed “similarly-situated”, [sic] the individuals with whom the plaintiff seeks

to compare his/her treatment must have dealt with the same supervisor, have been subject

to the same standards and have engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or the employer’s treatment

of them for it.

Mitchell, 964 F.2d at 583.

ii.

Applying the above standard to this case, it is evident that Noble failed to identify a similarly

situated employee outside the protected class who was treated more favorably than he. The two employees

to whom Noble seeks to compare himself differ from him in several significant ways.

First, Noble seeks to compare himself to Michael Brahler. Brahler, a white male, also worked under

Ficorilli at the Macaroni Grill. Noble argues that he is similarly situated to Brahler because both employees

allegedly missed shifts and failed to call, that is, both employees were “no call/no shows.” Noble contends

that the evidence presented at trial showed “that Mr. Brahler failed to appear for over one week to any of

his shifts, and was not terminated until after he had missed a full week of work.” Noble, on the other hand,

was terminated after allegedly missing only a single shift. Thus, Noble concludes that he has shown that

he was treated less favorably than a similarly situated white employee.

Although we are required to view the evidence in the record in the light most favorable to the non-

moving party, Noble, we are not required to accept his unsubstantiated gloss on the evidence. The record

reveals two instances in which Brahler failed to appear for work. In the first instance, Brahler’s “car broke

down on the highway.” He “called in and . . . told [the manager] the story and . . . when [he] got everything

situated and [he] called them back, they said don’t bother to come in. It’s slow.” Brahler was later required

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 11

“to show a little proof of . . . an estimate for [his] car; that it was actually broke[n] . . . [to] make sure [he]

wasn’t lying.” Brahler called in to the restaurant and informed his manager that he would be unable to make

his shift; Noble did not. Brahler’s first failure to appear for a scheduled shift is marked by “such

differentiating or mitigating circumstances” that would clearly distinguish Brahler’s conduct from Noble’s

and would explain Brinker’s differing treatment of the employees under these differing and relevant

circumstances. See Mitchell, 964 F.2d at 583.

As for the second instance, Brahler failed to appear for work after he gave the restaurant one week’s

notice that he was leaving to take another job. Ficorilli testified that “Mr. Brahler did not show for his shift.

We did not see [him again] after he did not show . . . . So he would have been terminated.” Although

Ficorilli testified that Brahler was terminated for his failure to appear during this week, the trial judge

pressed to determine whether Ficorilli had personally terminated Brahler. The trial judge established

through questioning that Ficorilli neither called Brahler to tell him that he was fired, nor did he write him

a letter to this effect, nor did he “communicate in any way with Mr. Brahler [to] tell him that he was fired.”

Nevertheless, Ficorilli testified, in response to the judge’s line of questions, that if Brahler had attempted

to return to work after these missed shifts, Ficorilli “would [not] have allowed him to [do so].” The trial

judge accorded great significance to the fact that Ficorilli did not personally contact Brahler to inform him

of his termination, and the trial judge denied the defendant’s in-court motion for judgment as a matter of

law accordingly. Similarly, Noble places great emphasis on this fact, claiming that Ficorilli’s failure to take

affirmative action to communicate the fact of termination to Brahler establishes that “Brahler was not

terminated” for similar wrongdoing.

Noble argues that he established relevant similarity because the fact of termination was

communicated to him after he allegedly missed a shift, while the fact of termination was not communicated

to Brahler, a white server, under like conditions. Noble’s argument is unpersuasive because it overlooks

the significantly differing circumstances that distinguish Brahler’s case from Noble’s. Noble makes much

of the fact that Ficorilli did not call or write Brahler to let him know he was not free to return to work, but

Noble presented no evidence that Ficorilli called or wrote him to communicate a similar fact. Instead, the

only evidence regarding any communication of any discharge decision was the evidence showing that Noble

was informed at the restaurant, when he attempted to return to work after allegedly missing a shift, that he

had been terminated. Noble presented no evidence showing that Brahler was permitted to return to work

after missing his shift(s), that Brahler attempted to return to work after missing his shift(s), or that Brahler

would have been permitted to return after missing his shift(s). In fact, the only evidence introduced on this

point was that Brahler would not have been permitted to return to work had he tried. The fact that Ficorilli

did not go out of his way to inform Brahler, who had already given his notice, that he would not be

permitted to return to work in the few short days he may have had left hardly establishes relevant similarity

when Noble has presented no evidence that Ficorilli took similar extraordinary measures with respect to the

plaintiff. We cannot fault a manager for failing to take unusual, pointless, and arguably vindictive measures

against an employee who had clearly manifested his intention to terminate his employment. Surely

managers in America’s bustling restaurants and diners have more pressing matters at hand than tracking

down employees who have already resigned for the visceral satisfaction of uttering the expression: “You’re

fired!” Nor can we hold that the relevant circumstances surrounding Brahler’s termination for failing to

appear for his shift(s) are “nearly identical” to those surrounding Noble’s termination for allegedly failing

to appear for a shift. See Ercegovich, 154 F.3d at 352. In fact, they are not even close. We conclude that

Noble failed to present evidence showing that Brahler was a similarly situated white employee who was

treated more favorably than he.

Second, Noble points to “an employee named ‘Will’ who [allegedly] did not show up for his shifts

in over a week.” Noble claims that “Will” too was a “similarly situated” employee who was not terminated.

He bases his argument upon the following notation in a manager’s book: “Will is no longer working for

us. He has not showed [sic] for a shift in over a week.” Noble failed to produce any other evidence about

“Will” that would permit a rational factfinder to conclude that “Will” was a similarly situated employee

outside the protected class who was treated more favorably than was the plaintiff. Noble produced no

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 12

evidence as to “Will’s” position, whether “Will” was outside the protected class, whether “Will” attempted

to return to work after his or her missed shift(s), or any other facts that might have shown that “Will” was

a similarly situated employee. In fact, the only evidence introduced about “Will” was that he or she simply

stopped coming to work. Noble utterly failed to show that “Will” was a similarly situated employee outside

the protected class or that he or she was treated more favorably than was Noble.

Finally, Noble’s invocation of the testimony of an assistant manager “that in his experience an

employee would not be terminated for a first offense violation of the ‘no call/no show’ policy” is of no avail.

It is the plaintiff’s burden to establish that a similarly situated person outside the protected class was treated

more favorably than he. See Mitchell, 964 F.2d at 583. Noble had the benefit of full discovery, but at trial

he was unable to produce a single person who fit this description. Generalized allegations unsupported by

evidence are insufficient to meet the plaintiff’s burden. Noble simply failed to present any evidence of a

similarly situated individual outside the protected class who was treated more favorably than he.

Our conclusion that Noble failed to produce evidence at trial to support a prima facie case of

discrimination is significant because it takes Noble outside the scope of the rule applied in Reeves. As noted

above, that case held that evidence supporting a plaintiff’s prima facie case, together with sufficient

evidence to permit the jury to conclude “that the employer’s asserted justification is false,” may permit a

factfinder to find for the plaintiff. Reeves, 530 U.S. at 148. That holding is inapplicable to the facts of this

case because Noble failed to present evidence to support a prima facie case. Furthermore, even if we were

to assume the existence of a prima facie case within the meaning of Reeves, that case would not mandate

affirmance as Noble contends. The Reeves Court was careful to make clear that there is no magic formula

that will always guarantee victory to a party in an employment discrimination case. Instead, a

discrimination case is subject to Rule 50 review in the same manner as any other case. Id. at 148. The

Court clearly stated that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false” will not “always be adequate to sustain a jury’s finding of liability.

Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth

sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory.” Id. at 148; see also Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 461 (6th

Cir. 2004), petition for cert. filed, (U.S. May 27, 2004). Based on the above review of the evidence, we

conclude that this is such a case.

The district court should have granted the defendant’s motion for judgment as a matter of law, not

because Noble failed to make out a prima facie case, an issue we do not decide, but because he failed to

produce sufficient evidence to support an inference of intentional race discrimination. Let there be no

mistake: Noble’s problem is not that he failed to make a showing sufficient to get to trial. Aikens and Avery

teach that this determination was for the district court, and we are not to revisit it on appeal. Instead, our

focus is on “the ultimate question of discrimination,” and Noble’s problem is that he failed to prove his case

at trial. Noble bore the burden of proving “both that the [defendant’s proffered] reason was false, and that

discrimination was the real reason” for the adverse employment action. Hicks, 509 U.S. at 515 (emphasis

in original). Noble simply failed to produce sufficient evidence from which a rational jury could conclude

that racial discrimination was the real reason for his termination.

IV.

“Although we are always hesitant to overturn a jury verdict,” Gray, 263 F.3d at 602, we hold that

the district court erred as a matter of law in denying Brinker’s motion for judgment as a matter of law. The

evidence in the record is insufficient to permit a rational jury, even if it chose to disbelieve the defendant’s

proffered reason for discharging Noble, to conclude that the true reason for the discharge was racial

discrimination. Accordingly, the judgment of the district court is REVERSED.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 13

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. The majority acknowledges that the jury reasonably could have

found that Plaintiff Marcus Noble’s former restaurant manager, Linda Lawrence, discriminated against him

because of his race. The majority further acknowledges that Noble submitted evidence showing that

Noble’s complaints about Lawrence’s discriminatory treatment were conveyed to manager Anthony Ficorilli

at the time Ficorilli decided to terminate Noble for purportedly failing to show up for a shift on April 17,

1999. The majority further acknowledges that the jury reasonably could have found that Ficorilli fabricated

his reason for terminating Noble because Noble never agreed to work the April 17, 1999 shift.

Nevertheless, the majority holds that no reasonable jury could have found that Ficorilli acted upon

Lawrence’s racial animus when he terminated Noble for a contrived reason. Instead, the majority substitutes

its own inferences from the facts to eviscerate the jury’s verdict for Noble. Because the majority has

usurped the jury’s role as the ultimate finder of fact, I respectfully dissent.

I.

Facts

Noble, an African-American, worked as a server at the Romano’s Macaroni Grill in Worthington,

Ohio from June, 1998, until his termination on April 18, 1999. Defendant Brinker International, Inc.

operates Macaroni Grill restaurants. Noble initially reported to general manager Linda Lawrence and

Jeanne Osborne, the service manager. Osborne left the Macaroni Grill in the fall of 1998, and thereafter

Tim Wiseman became the service manager. In January, 1999, general manager Lawrence transferred to a

Macaroni Grill restaurant in Maine.

At trial, Noble submitted evidence that, prior to Lawrence’s departure in early 1999, she subjected

him to numerous acts of racial discrimination, including the following: (1) before Noble could begin

serving and earning tips, Lawrence, on at least eight occasions, forced him (as well as another unnamed

black employee) to repeat an hour-and-twenty-minute oral examination about the restaurant’s menu because

Lawrence kept failing him (Noble passed the oral exam when he arranged for Osborne to administer the

exam, which took about 15 to 20 minutes); (2) Lawrence prevented the hostesses from seating guests at

Noble’s tables purportedly because he was not providing adequate service; (3) Lawrence “harassed” Noble

about not providing his correct social security number on his employment application and for failing to

indicate that he was working at a Chili’s, another Brinker-operated restaurant (Noble previously had advised

an assistant manager of his employment at Chili’s and claimed that the incorrect social security number,

which was off by one digit, was an inadvertent mistake); and (4) Lawrence suspended Noble for two weeks

after she gave him three separate disciplinary write-ups on a single night for incidents that allegedly were

precipitated by customer complaints about his service.

In addition, a former restaurant employee testified that she had heard Lawrence and two chefs

laughing about black people and stating that black people “might not know much.” A former dishwasher

who had worked under Lawrence testified that Lawrence made him shovel the snow and sweep the

sidewalk, limited the areas in which he could take a smoke break, limited his ability to switch shifts, denied

him free lunches, and denied him overtime pay, whereas white employees were not denied free lunches and

were not limited as to where they could smoke. As noted by the majority, “Noble presented a great deal of

evidence at trial which, when viewed in the light most favorable to the plaintiff, tended to show that Linda

Lawrence may have harbored racial animosity toward Noble and other black employees at the restaurant.”

Maj. Op. at 5 (emphasis omitted).

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 14

After Lawrence moved to Maine in January, 1999, Anthony Ficorilli became the general manager

of the Worthington Macaroni Grill. Ficorilli and Lawrence met once after Ficorilli started working as the

general manager, but they claim that they did not discuss Noble.

According to Ficorilli, on either April 15 or 16, 1999, Noble agreed to work a shift on April 17, but

Noble did not show for the shift, nor did he call in to provide an excuse for not showing up. On April 18,

1999, Ficorilli instructed the assistant manager to terminate Noble, pursuant to the restaurant’s policy that

an employee who violates the “no call/no show policy” can be terminated. Noble, however, denies ever

agreeing to work the April 17, 1999 shift. He claims that, on April 16, 1999, he had provided a written

medical excuse to be off work from April 14 to 19, 1999. He further claims that he gave a note from his

physician to the service manager, Tim Wiseman, and Wiseman testified that he recalled receiving a medical

excuse from Noble prior to April 17, 1999. Consistent with this testimony, there is no document

demonstrating that Noble agreed to pick up the April 17, 1999 shift, despite other testimony concerning the

restaurant’s three separate systems – the manager’s “Red Book,” a “shift pickup book,” and a computerized

schedule – for documenting changes or additions to shifts. Further, former service manager Jeanne Osborne

testified that it would not be appropriate to terminate an employee who had violated the no call/no show

policy without some form of documentation that the employee had agreed to work the shift, such as a

notation in the manager’s Red Book.

II.

Analysis

On review of a Rule 50 motion for judgment as a matter of law we are required to consider all the

evidence in the record, including those facts that are in dispute, in the light most favorable to the nonmoving

party (here, Noble), giving him the benefit of all reasonable inferences. Reeves v. Sanderson Plumbing

Prod., Inc., 530 U.S. 133, 150 (2000). Based on the above-described facts, a reasonable jury was permitted

to infer that Noble did not in fact violate the no call/no show policy as Ficorilli claims. Indeed, the majority

acknowledges this point. Maj. Op. at 7.

The jury reasonably could have inferred that Noble never agreed to cover the April 17, 1999 shift

based on (a) Noble’s testimony that he had provided service manager Wiseman with a medical excuse to

be off work from April 14 to 19, 1999; (b) Wiseman’s testimony that he recalled receiving a medical excuse

from Noble prior to April 17, 1999; and (c) the absence of any documentary evidence that Noble had agreed

to work on April 17, 1999, even though the restaurant had three separate systems for recording shift changes

and even though Noble’s former service manager testified that it would be inappropriate to terminate an

employee under the no call/no show policy without documentation. Because the jury was permitted to infer

that Noble did not in fact violate the no call/no show policy, it further could have reasonably inferred that

Ficorilli’s articulated reason for terminating Noble (violating the policy) was a lie or a pretext to cover-up

some other reason. The central question is whether the evidence of Ficorilli’s mendacity, combined with

any other evidence in the record, permitted the jury to find that Ficorilli’s reason was a pretext for race

discrimination.

In Reeves, supra, the Supreme Court discussed the application of Rule 50 to employment

discrimination cases and held that “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 employer

unlawfully discriminated.” Reeves, 530 U.S. at 148. The Court announced this rule because, in general,

“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 148; see also id. at 154 (Ginsburg, J., concurring) (“Under this commonsense

principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false

explanation for its actions gives rise to a rational inference that the defendant could be masking its actual,

illegal motivation.”); id. at 154-55 (noting that it would be “atypical” to grant judgment as a matter of law

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 15

where the plaintiff has submitted evidence establishing a prima facie case and that the employer’s proffered

explanation for its action was false).

The Reeves decision teaches us that the district court correctly denied Brinker’s motion for judgment

as a matter of law so long as Noble submitted evidence to the jury that was sufficient to demonstrate his

prima facie case and that Ficorilli’s proffered explanation for terminating him was false. Noble was fired,

so the elements of his prima facie case were: (1) he is a member of a protected class, (2) he was qualified

for his job and did it satisfactorily, (3) despite his qualifications and performance, he suffered an adverse

employment action, and (4) he was replaced by a person outside the protected class or was treated less

favorably than a similarly situated individual outside his protected class. Cicero v. Borg-Warner

Automotive, Inc., 280 F.3d 579, 583 (6th Cir. 2002) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802

(1973); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000); Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir.1992)). It is undisputed that Noble submitted sufficient evidence to prove the first

three elements of his prima facie case. Thus, the question is whether Noble submitted evidence establishing

that he was replaced by a non-black employee or was treated less favorably than a similarly situated non-

black employee.

Noble has neither argued nor pointed to any evidence that he was replaced by a non-black employee

after his termination. Instead, Noble argues that, whereas Brinker immediately terminated him for failing

to show up for a shift on April 17, 1999 and failing to call to say that he would miss the shift, a similarly-

situated white server, Michael Brahler, was not terminated under similar circumstances. Like Noble,

Brahler worked for Anthony Ficorilli, the general manager of the restaurant who claims that he strictly

enforces the no call/no show policy. Noble argues that Brahler violated the no call/no show policy by

failing to appear for any of his shifts over a one week period, but was not terminated until after he had

missed a full week of shifts.

The record is unclear regarding whether Ficorilli waited to terminate Brahler until he committed

several violations of the no call/no show policy compared to Ficorilli’s termination of Noble after a single

violation. Other evidence suggests that Ficorilli did not rigorously enforce a zero tolerance approach.1 In

any event, the real issue is whether Ficorilli should have applied the no call/no show policy to Noble in the

first place. As discussed above, the jury reasonably could have found that Ficorilli’s assertion that Noble

had violated the policy was a lie. It follows that the jury reasonably could have found that Ficorilli’s

purported “equal” treatment of Noble and Brahler – i.e., not permitting either employee to return to work

after violating the no call/no show policy – was not equal at all because Noble never should have been

subjected to that policy; he never violated it. Ficorilli fabricated the very premise that ostensibly justified

his application of the no call/no show policy to Noble.

A proper comparison between Ficorilli’s treatment of Noble and Brahler demonstrates that he did

not treat them equally. Whereas Ficorilli terminated Brahler for violating the no call/no show policy after

Brahler actually violated that policy, Ficorilli terminated Noble for violating the policy even though Ficorilli

knew (or so the jury could have found) that Noble had not violated it. This is the quintessence of disparate

treatment and certainly was sufficient to demonstrate the fourth element of Noble’s minimal burden to

produce evidence demonstrating his prima facie case. See Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981) (“The burden of establishing a prima facie case of disparate treatment is not

onerous.”). Because Noble submitted evidence sufficient to demonstrate all elements of his prima facie

case, as well as sufficient evidence to find that Ficorilli’s asserted justification for his termination is false,

the jury was permitted to conclude that Brinker unlawfully discriminated against him because of his race.

Reeves, 530 U.S. at 147. The majority’s decision to the contrary is flatly wrong.

1

Noble cites to a July, 1999 notation in Ficorilli’s manager’s notebook stating, “Will is no longer working for us. He has

not showed for a shift in over a week.” This evidence tends to show that Ficorilli did not immediately terminate employees who

violated the “no call/no show rule,” undermining Ficorilli’s assertion that he rigorously and consistently enforced the no call/no

show policy.

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 16

Moreover, Noble presented other circumstantial evidence that raised an inference of discrimination

and, therefore, was sufficient to satisfy the fourth element of his prima facie case. See McDonnell Douglas,

411 U.S. at 802 n.13 (“The facts necessarily will vary in Title VII cases, and the specification … of the

prima facie proof required from respondent is not necessarily applicable in every respect to differing factual

situations.”); Lyons v. England, 307 F.3d 1092, 1114 (9th Cir. 2002) (“For the purpose of establishing a

prima facie case, the plaintiff is not restricted to providing the bare minimum of evidence required by the

McDonnell Douglas test, but may rely also on other circumstantial evidence that tends to raise an inference

of discrimination.”) (citing McDonnell Douglas, supra). That same evidence also was sufficient for the jury

to find that Noble was terminated because of his race. Specifically, Noble presented evidence directly

linking his former manager Lawrence’s racial animus to Ficorilli’s decision to discharge him.

Service manager Wiseman, who worked for both Lawrence and Ficorilli, testified that Noble told

him that Lawrence had been discriminating against him because of his race and that he intended to file suit.

Wiseman further testified that he passed Noble’s comments on to Lawrence before she transferred to another

restaurant. Wiseman also testified that, “at the time that [Noble] had missed a shift,” Wiseman told Ficorilli

that Noble had “threatened to go to both the NAACP and the labor board and report racial discrimination

or accuse [them] of racial discrimination.” In other words, contemporaneous with Noble’s alleged no

call/no show on April 17, 1999, Ficorilli was apprised that Noble had complained about race discrimination

by his former manager and that he was prepared to take legal action. The very next day, Ficorilli terminated

Noble.2

As noted above and by the majority, there was ample evidence from which the jury reasonably could

have inferred that Ficorilli did not fire Noble for his purported violation of the no call/no show policy.

Therefore, if Ficorilli was not motivated by Noble’s alleged no call/no show, the jury reasonably could have

inferred that the true motivating factor for the termination was the new information Wiseman had presented

to Ficorilli only a day before the termination, namely, that Noble believed that Lawrence had discriminated

against him because of his race. But for Lawrence’s racial animus toward Noble, (a) Noble would not have

informed Wiseman of Lawrence’s discriminatory acts, (b) Wiseman would not have informed Ficorilli on

or about April 17, 1999 that Noble believed that Lawrence had discriminated against him and might take

legal action, and (c) Ficorilli would not have been motivated to fabricate Noble’s purported violation of the

no call/no show policy to avoid a potential lawsuit. In this way, there was a direct causal nexus between

Lawrence’s racially discriminatory actions against Noble and Ficorilli’s decision to terminate him.

An employer is not entitled to judgment as a matter of law if the plaintiff has submitted evidence

that a non-decisionmaker’s discriminatory motives “somehow influenced” or “affected” the decision-maker.

Wilson v. Stroh Cos., Inc., 952 F.2d 942, 946 (6th Cir. 1992) (affirming summary judgment for employer

because the plaintiff failed to submit evidence that his supervisor’s racial animus had somehow influenced

or affected the decision of two other managers to terminate him; the managers’ decision was based on an

independent investigation of the plaintiff’s conduct); see also Dey, supra, 28 F.3d at 1459 (“Summary

judgment generally is improper where the plaintiff can show that an employee with discriminatory animus

provided factual information or other input that may have affected the adverse employment action.”)

(citations omitted); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (holding that summary

judgment was improper even though the committee that formally terminated the plaintiff harbored no

2

There also was evidence suggesting that Ficorilli may have known of Noble’s concerns about race discrimination months

earlier. Although Ficorilli and Lawrence claim that they never discussed Noble on the one occasion when the two managers met,

it was for the jury to determine the veracity of this claim, particularly because both Ficorilli’s and Lawrence’s credibility was

undermined at trial. Based on the totality of the evidence, it would have been reasonable to infer that Lawrence, who harbored

racial animus toward Noble, informed Ficorilli of Noble’s prior complaints of race discrimination in order to negatively impact

Noble’s employment under Ficorilli. Cf. Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458-59 (7th Cir. 1994) (holding that the

court must assume on summary judgment that the non-decisionmaker/harasser relayed the plaintiff’s complaints about sexual

harassment to the decision-maker, even though both the harasser and the decisionmaker denied this fact; the harasser was present

at the meeting in which it was decided that plaintiff would be terminated, he had an incentive to pass on this information, and his

credibility was in question as to other matters).

No. 02-4190 Noble v. Brinker Int’l, Inc. Page 17

discriminatory animus; the plaintiff’s manager, who harbored animus, had tainted the committee’s decision

by characterizing the plaintiff as a poor performer, thereby rendering the committee a “conduit” of his

prejudice).

There is no question that there was sufficient evidence for the jury to conclude that Lawrence’s

discriminatory animus somehow influenced Ficorilli’s termination decision. Because the jury was permitted

to reject Ficorilli’s fabricated reason as the cause of Noble’s termination, it was entitled to infer that the

true cause was the discriminatory animus of Noble’s former manager of which Ficorilli had just been

apprised by Wiseman. Indeed, there appears to be no other explanation for Ficorilli’s fabrication.

There is no doubt that legal liability may attach to Brinker as a result of the actions of Lawrence and

Ficorilli. The Supreme Court has held that “a tangible employment action taken by the supervisor becomes

for Title VII purposes the act of the employer.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998).

Thus, “it would be implausible to interpret agency principles to allow an employer to escape liability” when

a supervisor subjects an employee to the tangible employment action of termination. Id. at 761, 763. When,

as herein, a reasonable jury could find that a supervisor not only acted as a conduit for a former’s

supervisor’s discriminatory animus, but also knowingly based his termination decision on that animus, the

employer is unquestionably subject to vicarious liability. For these reasons, there is absolutely no basis for

the majority to hold that Brinker is entitled to judgment as a matter of law.

III.

Conclusion

For all the foregoing reasons, I would affirm the judgment below.