Chapman v. AI Transport

John D. CHAPMAN, Plaintiff-Appellant,

v.

AI TRANSPORT, et al., Defendants-Appellees.

Nos. 97-8838, 97-9086 and 97-9269.

United States Court of Appeals,

Eleventh Circuit.

Oct. 2, 2000.

Appeals from the United States District Court for the Northern District of Georgia.(No. 94-01666-1-WBH),

Willis B. Hunt, Jr., Judge.

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK,

CARNES, BARKETT, MARCUS and WILSON, Circuit Judges.*

CARNES, Circuit Judge:

John Chapman filed a lawsuit in federal district court against AI Transport, AIG Aviation, American

International Group Claims Services ("AIGCS"), and American International Group ("AIG") (collectively,

"the defendants"). His complaint included claims of age discrimination in violation of the Age Discrimination

in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and disability discrimination in violation of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-17. The district court granted summary

judgment in favor of the defendants on Chapman's ADEA claims, but it denied summary judgment on the

ADA claims. Chapman's ADA claims were tried before a jury, which returned a verdict in favor of the

defendants.

A panel of this Court affirmed the judgment insofar as it embodied the jury's verdict on the ADA

claims, but the panel reversed the grant of summary judgment on the ADEA claims and also vacated the

district court's award of costs to the defendants. See Chapman v. AI Transport, 180 F.3d 1244 (11th

Cir.1999). We granted rehearing en banc primarily to decide some important issues that arise regularly in

job discrimination cases. Those issues have to do with an employer's ability to select its own criteria for

making employment decisions and with the permissibility of using subjective criteria. We had also planned

to address an issue about whether evidence impeaching the credibility of one corporate official could be used

to undermine the credibility of a different decisionmaker. As we will explain in due course, however, it turns

out that general corporate credibility issue is not presented by the record. While we have the case, we will

*

Judge Frank Hull recused herself and did not participate in this decision.

also use it to decide whether a district court may consider a losing party's financial status in awarding costs

to the prevailing party.

I. FACTS

A. Chapman's Pre-October 1988 Employment History

From May 1964 until September 1969, John Chapman worked as a claims representative for the

Hartford Insurance Company. He voluntarily left Hartford Insurance in September 1969 and began working

as a claims supervisor for Home Insurance Company in Atlanta, Georgia. He left Home Insurance in June

1985. In July 1985, Chapman began working for Claimsman, Inc., another insurance company, as a senior

liability claims examiner. While at Claimsman, Chapman handled the J. Gordon Gaines ("Gaines") account.

In August 1986, Chapman voluntarily left the Claimsman company in order to accept an offer to

become manager of the general liability unit of Gaines, which had decided to start its own claims department.

In April 1988, Gaines was purchased by Liberty National Fire Insurance Company. Liberty National moved

its claims division to Birmingham, Alabama, and offered Chapman, who was apparently living in Atlanta,

the opportunity to continue working in the claims division. Chapman decided instead to move to Long

Beach, California and work for B.R. Martin Company. At B.R. Martin, Chapman supervised the files of

Liberty National Fire Insurance Company. In September 1988, after only a few months with B.R. Martin,

Chapman left that company and moved back to Atlanta, Georgia.

B. Chapman's Tenure at AI Transport and His Application to AIGCS

In October 1988, Chapman began working for AI Transport in Atlanta as a senior claims

representative. He interviewed with and was hired by Robert Spann, who was then the Manager of Claims

at AI Transport. In 1989, Chapman was promoted to supervisor. His performance reviews usually ranged

from the middle-of-the-scale "meets expectations" to the second-highest category, "above expectations."1

In late 1989, AI Transport became a division of AIG Aviation, which is itself a subsidiary of AIG.

AIG owns in whole or in part approximately 120 companies worldwide, including AIGCS. AIG, AIG

Aviation, AI Transport and AIGCS are all insurance-related companies.

1

Professional and managerial employees were rated using a five-level scheme in ascending order as

follows: "unsatisfactory," "meets some expectations," "meets expectations," "above expectations," and

"outstanding."

The defendants state that Chapman received less than a "meets expectations" in several

categories in his August 1989 review.

In June 1992, AI Transport instituted a reduction-in-force. Three of Chapman's four subordinates

were terminated. AI Transport removed Chapman's supervisory duties and assigned him to handle the claims

representative duties formerly performed by his dismissed subordinates. Chapman was also transferred to

the position of Self-Insured Retention ("SIR") Manager.

During September and October 1992, AIGCS restructured its organization and created new positions

in the process.2 On September 17, 1992, Chapman wrote James Wogsland, a vice president at AIGCS, about

open positions. Wogsland and Ward Turnquist, another AIGCS vice president, interviewed Chapman on

October 13, 1992 for the position of Casualty Claims Manager. Turnquist testified in deposition that his

assignment from Wogsland was "to screen these people for that position." Turnquist stated that he

interviewed Chapman, was not impressed and thought AIGCS should look further, but recommended that

Wogsland talk to Chapman himself. Chapman testified, however, that Wogsland interviewed him before

Turnquist did. At the time of the interviews, Chapman was 61 years old.

Later that month, Chapman was informed that AIGCS would not be hiring him. Among the

employees eventually hired by AIGCS for some position were four other AI Transport employees. Graham

Wiggins was hired as the Casualty Claims Manager; Warren Jones was hired as the Complex Claims

Director; Duane Sevillian was hired as the Fast Track Manager; and Ernest John Smith was hired as a

Casualty Claims Representative. Two of the four were over forty years old, but all four were younger than

Chapman.3

On December 18, 1992, Chapman was terminated by AI Transport because of his refusal to travel,

which he claimed to be the result of a heart condition. The facts relating to that condition and Chapman's

termination by AI Transport are accurately summarized in the panel opinion. See Chapman, 180 F.3d at

1247-48. We will not set out in this opinion all of those facts, because they are not relevant to the ADEA

claims which arose from AIGCS's failure to hire Chapman while he was still working at AI Transport.

II. PROCEDURAL HISTORY

A. Complaint

In June 1994, after having exhausted his EEOC administrative remedies, Chapman filed a lawsuit

2

AIGCS was formerly known as American International Adjustment Company. For simplicity, we

will use the name AIGCS throughout our opinion.

3

Smith was 50 years old, Wiggins was 47 years old, Sevillian was 39 years old, and Jones was 37.

in federal district court against the defendants. His complaint included claims of age discrimination in

violation of the ADEA, 29 U.S.C. §§ 621-34, and disability discrimination in violation of the ADA, 42 U.S.C.

§§ 12101-17.4 His complaint set out his allegations of age discrimination as follows:

25. During September or October of 1992, a claims supervisor position came open in the Atlanta

Service Center of [AIGCS]. Mr. Chapman was qualified to perform this position, which would have

required no out-of-town travel on business.

26. Mr. Chapman went through the proper procedures to apply for the open position at [AIGCS].

The [AIGCS] employee who interviewed Mr. Chapman for the position, James Wogsland (Vice

President of [AIGCS] in Atlanta), informed Mr. Chapman that he would rely upon Mr. Spann's

assessment of Mr. Chapman's work in making his decision.

27. The position at [AIGCS] for which Mr. Chapman applied was awarded to Mr. Graham Wiggins,

black. Mr. Wiggins was less qualified than Mr. Chapman for the position, had no physical disability

and was much younger than Mr. Chapman.

28. AI Transport also transferred Mr. Warren Jones and Mr. Duane Sevillian to [AIGCS] to perform

positions that Mr. Chapman was more qualified to perform. Mr. Jones and Mr. Sevillian are black,

are not physically disabled, and are much younger than Mr. Chapman.

B. Motions for Summary Judgment

On April 29, 1996, Chapman moved for partial summary judgment on his disability discrimination

claims. Included in the Statement of Undisputed Material Facts submitted by Chapman with his motion for

partial summary judgment were the following statements:

25. Mr. Chapman applied for any open positions, including Complex Claims Director, Fast Track

Manager, Casualty Claims Manager, and Casualty Claims Representative. According to the AIGCS

managers responsible for supervising and filling these positions, Mr. Chapman was qualified for all

of them. None of these positions required business travel.

26. Nevertheless, instead of transferring Mr. Chapman to one of these open positions, which would

have fully accommodated his disability, Defendants filled the positions with other non-disabled

individuals from AI Transport. Graham Wiggins was placed in the Casualty Claims Manager

position; Warren Jones was placed in the Complex Claims Director position; Duane Sevillian (a

claims representative at AI Transport) was placed in the Fast Track Manager position and Ernest John

Smith (a claims representative at AI Transport) was placed in the Casualty Claims Representative

position.... Chapman was more qualified than these other candidates.

On April 30, 1996, AI Transport, AIG Aviation and AIG moved for summary judgment on all claims.

AIGCS and AIG filed a separate motion for summary judgment on all claims. In the Statement of Material

4

Chapman also brought claims of race discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-5 et seq., and salary discrimination in violation of the ADA, ADEA, Title

VII, and 42 U.S.C. § 1981. The district court awarded summary judgment to AIGCS, AIG and AI

Transport on the race discrimination claims and to AIG and AI Transport on the salary discrimination

claims based on the ADA, ADEA and Title VII. The court denied summary judgment as to the claims of

salary discrimination in violation of § 1981. The district court entered a Rule 50(a) dismissal of the salary

discrimination claim at the close of the evidence in the trial. The race and salary discrimination claims

are not at issue on appeal and we will not discuss them further.

Facts attached to its summary judgment motion, AIGCS stated that Wogsland and Turnquist, the two AIGCS

vice presidents who interviewed Chapman, chose Wiggins over Chapman because of Chapman's poor

interview and their concern "about [his] stability in light of the number of jobs he had held in a short period

of time."5

In depositions attached as exhibits to the summary judgment motion, Wogsland and Turnquist

explained their reasoning. Turnquist stated that he "had some concerns about [Chapman's] career path" and

that "there was (sic) quite a few jobs after the Home [Insurance Company] and before he came to [his current

employer]." In his mind, Turnquist questioned "what necessitated making as many and as frequent a job

change during what ... was a fairly short period of time...." Turnquist also described what he said to

Wogsland after his interview with Chapman as follows:

I didn't get a real feeling of confidence from [Chapman]—from my interview with [Chapman] and

that I thought we could do better and that he should continue the interview process with other people.

But I think I told [Wogsland]—I believe I did tell [him] that I think you need to talk to [Chapman]

5

AIGCS's Memorandum in Support of [its] Motion for Summary Judgment reads as follows:

The evidence belies Plaintiff's allegations that he was not hired by AIGCS because of his

age. Turnquist and Wogsland both testified that they selected Wiggins over Plaintiff

because Plaintiff interviewed poorly and because they were concerned about Plaintiff's

stability in light of the number of jobs he had held in a short period of time (Turnquist at

64, 78-79; Wogsland at 102-08, 111). Plaintiff offered no evidence to rebut these

reasons. Instead, he argues that Turnquist's notes were evidence of discrimination and

that he was better qualified than Wiggins.

AIGCS's Statement of Material Facts as to Which There is no Genuine Issue to be Tried,

filed in support of its motion for summary judgment, reads as follows:

9. Plaintiff interviewed with [James] Wogsland, [the Vice President in charge of AIGCS's

Atlanta office] and Ward Turnquist, Vice President of AIGCS's Complex Claims Unit,

who were responsible for filling the position....

13. In his interview, Turnquist, as he did with other candidates he interviewed,

questioned Plaintiff regarding when he received degrees and switched jobs to ascertain

continuity of and stability in employment....

14. Plaintiff was not hired....

15. Graham Wiggins, a black Claims Supervisor at Transport, was hired for this

position....

17. Turnquist and Wogsland both testified that they selected Wiggins over Plaintiff

because they "didn't get a real feeling of confidence from" Plaintiff, because Wiggins

made a "better presentation" than Plaintiff, and because Plaintiff did not give "sharp and

concise" answers to their questions....

18. They were also concerned about Plaintiff's stability in light of the number of jobs he

had held in a short period of time....

yourself.

Turnquist stated that he "thought that Graham Wiggins made a better presentation of himself and his skills.

His knowledge skills and abilities and thought that he would have—he seemed to exhibit. I just had ... more

confidence in Graham in the way he presented his work history."6

Wogsland shared Turnquist's concerns, testifying in deposition that he looked for "stability with a

company and a progression within a particular company" and that "[w]e did not see that in those three

positions between when [Chapman] left Home [Insurance Company] and AI Transport."

Wogsland further recounted that:

Within the interview that I conducted with [Chapman], it was basically that he was not very concise

with the answers. He did not take an aggressive approach in asking me questions about the position,

where we were going. His answers were not very sharp, to the point, when I asked them, which

basically were the same comments that [Turnquist] gave me about his interview [with Chapman].

When asked for an example of a question to which he received an unsatisfactory answer, Wogsland explained

that "[Chapman] wasn't very clear about why he had gone from Home [Insurance Company] to several other

positions before he got to Transport...."

Chapman responded to the defendants' motions. Chapman disputed AIGCS's allegation that he was

not hired because of his recent job instability by arguing that he "had established a record as evidenced by

his performance appraisals which were a more immediate indication of his stability," and arguing that "he

continued to work on files for J. Gordon Gaines while working for three different employers between the time

he left Home Insurance (after 16 years) and joined AI Transport."7 Chapman also compared his entire

6

Turnquist's deposition as attached to Chapman's response to AIGCS's motion for summary judgment

contained pages not attached as an exhibit to AIGCS's motion. In those pages, Turnquist related the

following:

I didn't feel that John [Chapman] came into the interview to sell himself and his

knowledge, skills and abilities for the position that I was interviewing for. Everybody

does it a little differently I realize, but I didn't get a real strong feeling that this was

somebody that was going to be able to be the leader of this unit. I didn't feel that he was

the—he had all the things that we were look[ing] for in terms of being able to build

confidence in a group of people, so that he could be the leader of that group of people....

Two and a half years later—you know—the only thing that I can recall quite frankly is

that general overall impressions that I had of the interview with John and I do specifically

recall the comments that I made to Jim [Wogsland] after I interviewed him. But I cannot

recall in detail the specific comments that he made to questions that I might has (sic)

asked or the specific detail he might have offered regarding his job history, but I reached

the conclusion on the basis of my interview with John that we could do better I felt than

John.

7

The pertinent portions of AIGCS's Statement of Material Facts as to Which There is no Genuine

Issue to be Tried are quoted supra note 5. Chapman's Response to those parts of that statement reads as

employment history to Wiggins' employment history and alleged that "it is undisputed that both Mr. Chapman

and Wiggins worked for a total of six other employers ..." throughout their entire careers.8

follows:

9. Plaintiff does not dispute.

13. Plaintiff disputes the factual allegation in ¶ 13. Defendants mischaracterize Plaintiff's

testimony. Plaintiff's interview with Turnquist did not require asking questions to which

Turnquist either already had answers or did not need those answers. Turnquist had

Plaintiff's file which included a resume. Continuity and stability of employment was a

pretext for intentional discrimination. (Chapman Dep., pp. 259, 260) Moreover, Wiggins

and Chapman both worked for a total of six other employers before applying for transfers

to AIAC and Turnquist did not inquire or question Wiggins' "stability." (Wiggins Dep.,

pp. 15-25; Wogsland Dep., p. 138)

14. Plaintiff disputes the factual allegation in ¶ 14 to the extent that Plaintiff was already

an employee. Rather, Plaintiff was not transferred. (Plaintiff's Exhibit 132)

15. Plaintiff disputes the factual allegation in ¶ 15 to the extent that Graham Wiggins was

already an employee. Rather, Wiggins was transferred. (Plaintiff's Exhibit 81)

17. Plaintiff does not dispute but Plaintiff contends that this testimony is pretext for

intentional discrimination.

18. Plaintiff disputes the factual allegation in ¶ 18 to the extent that Plaintiff already had

been working at AIG for more than three years and was actually an employee asking for a

transfer. Plaintiff had established a record as evidenced by his performance appraisals

which were a more immediate indication of his stability. (Chapman Dep. I, pp. 254,;

Defendants' Exhibits 74, 77, 78, 80, 81; Wogsland Dep., p. 111) Moreover, Mr.

Chapman explained to Mr. Wogsland that he continued to work on files for J. Gordon

Gaines while working for three different employers between the time he left Home

Insurance (after 16 years) and joined AI Transport. (Chapman Aff. ¶ 4-6; Wogsland

Dep., pp. 142-45.)

8

Chapman's Response to AIGCS's Motion for Summary Judgment reads as follows:

The only alleged legitimate reason offered by Defendants for selecting Wiggins

instead of Mr. Chapman was the claimed subjective opinion of Turnquist and Wogsland

(after interviewing Mr. Chapman and Wiggins) that they "didn't get a real feeling of

confidence from" Mr. Chapman; Wiggins made a "better presentation," and Mr.

Chapman did not give "sharp and concise" answers. Turnquist and Wogsland also claim

they were concerned about Plaintiff's stability in light of the number of jobs he had held.

Aside from the limited probative value of their opinions about Mr. Chapman's

appearance and demeanor, the record suggests that Turnquist's and Wogsland's reliance

on the "stability" factor was a pretext for intentional discrimination. It is undisputed that,

although Mr. Chapman worked for three employers between the time he left Home

Insurance (after 16 years) and joined AI Transport, he continued to work on files for J.

Gordon Gaines for all three of those employers. Thus, rather than indicating a lack of

stability, Mr. Chapman's interim employment demonstrated the customer's preference for

his continued handling of its claims as it changed insurers—a factor which reflects

favorably on his performance in the industry. Mr. Chapman explained this continued

relationship with J. Gordon Gaines during his interview with Wogsland and in fact,

Wogsland wrote "Gaines" in his notes of the interview. Moreover, in further

contradiction of the alleged focus on lack of stability in Mr. Chapman's employment

Chapman responded to AIGCS's allegation that he was not hired based on a poor interview by

contending that "this testimony [was] pretext for intentional discrimination."9 Chapman did not refute

Wogsland and Turnquist's evaluation of his interview. He did not contend that he asked a lot of questions

during the interview, gave concise answers, or otherwise interviewed well. Instead, Chapman argued that

there was "limited probative value of [Wogsland and Turnquist's] opinions about Mr. Chapman's appearance

and demeanor...." Neither Chapman's affidavit nor the excerpts from his deposition that were attached as

exhibits to his summary judgment response set out a different version of the interview.10

C. Magistrate Judge's Report and District Court Order

In August 1996, the magistrate judge issued his report and recommendation. With respect to the age

discrimination claims, the report recommended that AIGCS's motion for summary judgment be denied. The

report stated that Chapman's evidence about his overall employment record and continuity of work on J.

Gordon Gaines' files cast doubt on AIGCS's proffered nondiscriminatory reason of job instability. The report

also stated that AIGCS's other proffered reason, Chapman's poor interview, was subjective and for that reason

was an inappropriate basis upon which to award summary judgment.

On March 5, 1997, the district court issued an order granting summary judgment in favor of the

defendants on Chapman's ADEA claims, but denying summary judgment on the ADA claims. With respect

background, it is undisputed that both Mr. Chapman and Wiggins worked for a total of

six other employers before interviewing at [AIGCS].

Chapman's Response to AIGCS's Statement of Material Facts as to Which There is no Genuine

Issue to be Tried contains similar statements in paragraphs 13 and 18. See supra note 7.

9

AIGCS's Statement of Material Facts as to Which There is no Genuine Issue to be Tried, filed in

support of its motion for summary judgment, asserted that: "Turnquist and Wogsland both testified that

they selected Wiggins over Plaintiff because they 'didn't get a real feeling of confidence from' Plaintiff,

because Wiggins made a 'better presentation' than Plaintiff, and because Plaintiff did not give 'sharp and

concise' answers to their questions...."

Chapman's response reads as follows: "Plaintiff does not dispute but Plaintiff contends

that this testimony is pretext for intentional discrimination."

10

The dissenting opinion says that the summary judgment record contains "evidence tending to show"

that Chapman gave reasons for every job move that he had made. But the reasons that opinion cites are

drawn from the explanations for those moves that Chapman gave after the lawsuit was filed, not during

the interviews. Nowhere in Chapman's depositions does he contradict Wogsland's testimony that "[h]is

answers were not very sharp, to the point, when I asked them, which basically were the same comments

that [Turnquist] gave me about his interview." Nor did Chapman ever put forward any testimony or other

evidence to contradict Wogsland's testimony that during the interview "[Chapman] wasn't very clear

about why he had gone from Home [Insurance Company] to several other positions before he got to

Transport...."

to the ADEA claims, the district court held that Chapman did not present sufficient evidence for a reasonable

factfinder to conclude that the second proffered reason, his poor interview, was pretextual. Having so held,

the district court found it unnecessary to address AIGCS's first reason, Chapman's recent job instability. With

respect to the ADA claims, the court concluded that there were genuine issues of material fact including

whether Chapman was disabled and whether travel was an essential function of his job. Accordingly, the

court denied summary judgment on the ADA claims, leaving them to be decided at trial.

D. Post-Summary Judgment Events and Trial

Before trial of the ADA claims, the defendants moved in limine to exclude a position statement AIG

prepared for submission to the EEOC as part of the conciliation process. That position statement described

Chapman's transfer to the position of SIR Manager as a promotion. The defendants later admitted that the

transfer was actually a lateral move. Esther Kornblau, AIG's Director of Employee Relations in New York

City, wrote the position statement and Valerie Zaleski, the human resources manager for AI Transport,

checked it in Atlanta. Bill O'Brien, the vice president in charge of claims operations at AI Transport, either

read it or had it read to him and did not point out any mistakes. Spann, Chapman's immediate supervisor, also

probably reviewed the statement, and he did not point out any mistakes either.

The district court granted the defendants' motion in limine. At trial, however, the court allowed

Chapman to introduce most of the position statement into evidence as an exhibit but not the part of it which

characterized Chapman's transfer as a promotion. The court required Chapman to redact that part of the

position statement. Chapman's ADA claims were tried before a jury from June 17 to June 30, 1997. The jury

returned a verdict in favor of the defendants.

On July 2, 1997, Chapman filed a motion to reconsider and vacate summary judgment on his ADEA

claims. He argued that evidence adduced immediately prior to and at the trial of his ADA claims established

a genuine issue of material fact about whether AIGCS's proffered nondiscriminatory reasons regarding his

ADEA claims were pretextual, thereby requiring a jury trial. Chapman also filed a timely motion for a new

trial on the ADA claims. He argued, among other things, that the court had erred by redacting from the

position statement the defendants' false characterization of his transfer. The district court denied both

motions. Thereafter, the court awarded costs to the defendants. Chapman appealed the grant of summary

judgment on the ADEA claims, the jury verdict on the ADA claims, the district court's denial of his post-trial

motions, and the award of costs to the defendants.

E. Panel Opinion

A panel of this Court issued a decision affirming in part and reversing in part. See Chapman v. AI

Transport, 180 F.3d 1244 (11th Cir.1999). Addressing the award of summary judgment on the ADEA claims,

the panel concluded that the district court did not "properly evaluate Chapman's effort to demonstrate the

pretextual nature of AIGCS's reason for its employment decision...." Id. at 1249. The panel decided that the

fact that Chapman worked for six different companies over a thirty-five year period and the fact that he had

done work primarily involving one client during the recent three-year period in which he worked for three

employers raised a genuine issue of material fact as to whether AIGCS's objective reason, Chapman's recent

job instability, was a pretext for age discrimination. See id. at 1250. The panel stated that those facts were

also sufficient at the summary judgment stage to cast doubt on AIGCS's subjective reason, Chapman's poor

interview, even though that evidence did not directly rebut AIGCS's assessment of his interview. See id. For

those reasons, the panel reversed the district court's grant of summary judgment and remanded for further

proceedings on that issue. See id. at 1250-51, 1254.

With respect to the ADA claims, the panel concluded that there was sufficient evidence for a

reasonable jury to find in favor of the defendants and affirmed the jury's verdict. See id. at 1251. Although

believing that the district court had abused its discretion by excluding from evidence the false description of

Chapman's transfer as a promotion in the position statement the defendants filed with the EEOC, the panel

concluded that the error was harmless. See id. at 1252. Finally, the panel vacated the district court's award

of costs to the defendants, because the "district court incorrectly concluded that it lacked the authority to

consider Chapman's financial status as a factor in calculating the total costs awarded to the defendants." Id.

at 1253.

III. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment, applying the same legal standards

as the district court. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.1999). Under Federal Rule

of Civil Procedure 56(c):

[s]ummary judgment is appropriate if the evidence before the court shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In making this determination, the court must view all evidence and make all reasonable inferences

in favor of the party opposing summary judgment.

The mere existence of some factual dispute will not defeat summary judgment unless that

factual dispute is material to an issue affecting the outcome of the case. The relevant rules of

substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not

exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return

a verdict in its favor.

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (internal marks and citations omitted). We review

the district court's exclusion of evidence, award of costs and denial of a motion to reconsider summary

judgment only for abuse of discretion. See Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1554 (11th

Cir.1995) (exclusion of evidence); Technical Resource Servs. v. Dornier Medical Sys., Inc., 134 F.3d 1458,

1468 (11th Cir.1998) (costs); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.1993) (Rule 60

motion to reconsider).

IV. DISCUSSION

A. Summary Judgment on Chapman's ADEA Claims

1. The Applicable Legal Framework

The ADEA makes it "unlawful for an employer to fail or refuse to hire or 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). As the Supreme Court

has stated:

[w]hen a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under

the ADEA, age) actually motivated the employer's decision. That is, the plaintiff's age must have

actually played a role in the employer's decisionmaking process and had a determinative influence

on the outcome.

Reeves v. Sanderson Plumbing Products, Inc., --- U.S. ----, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105 (2000)

(internal marks and citations omitted).

This Court, as well as other federal courts of appeals, uses the framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to evaluate ADEA

claims that are based upon circumstantial evidence of discrimination. See Reeves, 120 S.Ct. at 2105 (noting

widespread use of the McDonnell Douglas framework in ADEA cases and assuming its applicability); Combs

v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). Under that framework, the plaintiff must

first establish a prima facie case of discrimination. See Combs, 106 F.3d at 1527-28 (citations omitted). One

method a plaintiff can use to establish a prima facie case for an ADEA violation is by showing that he (1) was

a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to

do the job, and (4) was replaced by or otherwise lost a position to a younger individual. See Benson v. Tocco,

Inc., 113 F.3d 1203, 1207-08 (11th Cir.1997).

Establishment of the prima facie case in effect creates a presumption that the employer unlawfully

discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the

employer is silent in the face of the presumption, the court must enter judgment for the plaintiff

because no issue of fact remains in the case.

Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094 (footnote omitted)).

If a plaintiff establishes a prima facie case of discrimination, the defendant employer must articulate

a legitimate, nondiscriminatory reason for the challenged employment action. See id. However, the

employer's burden is merely one of production; it "need not persuade the court that it was actually motivated

by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether

it discriminated against the plaintiff." Id. at 1528 (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094

(citation and footnote omitted)).

If the defendant articulates one or more such reasons, the presumption of discrimination is eliminated

and "the plaintiff has the opportunity to come forward with evidence, including the previously produced

evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the

reasons given by the employer were not the real reasons for the adverse employment decision." Id. (citations

omitted). If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact

regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled

to summary judgment on the plaintiff's claim. See id. at 1529 (holding that there must be "sufficient evidence

to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer's proffered

reasons for its challenged action").11

11

Although the defendant is entitled to summary judgment in its favor if the plaintiff does not proffer

sufficient evidence of pretext, the converse is not necessarily true. If the plaintiff does proffer sufficient

evidence that the defendant's stated reasons are pretextual, the plaintiff still may not be entitled to take his

case to a jury. In Reeves, which dealt with Rule 50, judgment as a matter of law, the Supreme Court

stated:

[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.

This is not to say that such a showing by the plaintiff will 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. For instance, an employer would be entitled to judgment as a matter of

law 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 had occurred....

Whether judgment as a matter of law is appropriate in any particular case will

A final note is in order about the law applicable to summary judgment in job discrimination cases.

Some of our opinions from past years purport to announce "[a]s a general rule [that] summary judgment is

not a proper vehicle for resolving claims of employment discrimination which often turn on an employer's

motivation and intent." E.g., Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 644 (11th Cir.1987); accord

Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir.1994) ("summary judgment in employment discrimination cases

... is especially questionable" (internal quotation and citation omitted)). There is some question about whether

that supposed rule was ever followed, see Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th

Cir.1990) ("Summary judgments for defendants are not rare in employment discrimination cases.") (citing

cases), but no question that it has not been followed in recent years. As the Seventh Circuit has observed,

"Summary judgment is hardly unknown, or for that matter rare, in employment discrimination cases, more

than 90 percent of which are resolved before trial, ... many of them on the basis of summary judgment for the

defendant." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir.1997) (citations omitted); see

also Lewis Maltby, Employment Arbitration: Is it Really Second Class Justice?, Disp. Resol. Mag., Fall

1999, at 23-24 (footnote omitted) ("In fact, the majority of employment cases, some 60 percent, are resolved

by summary judgment."); see generally Administrative Office of the U.S. Courts, Judicial Business of the

United States Courts: 1999 Report of the Director, p. 160-62 (indicating, from figures in Table C-4, that

94.09% of employment civil rights cases are resolved before trial).

While acknowledging that questions of fact in job discrimination cases are "both sensitive and

depend on a number of factors. Those include the strength of the plaintiff's prima facie

case, the probative value of the proof that the employer's explanation is false, and any

other evidence that supports the employer's case and that properly may be considered on

a motion for judgment as a matter of law....

Reeves, 120 S.Ct. at 2109.

The Reeves case involved a judgment as a matter of law under Rule 50, and not summary

judgment under Rule 56. But the Supreme Court said that, although the evidence considered

when a district court rules upon a motion for judgment as a matter of law is different from the

evidence considered when the court rules upon a summary judgment motion, the "standard for

granting summary judgment mirrors the standard for judgment as a matter of law, such that the

inquiry under each is the same." Id. at 2110 (quotations and citations omitted).

The Supreme Court's decision in Reeves modifies part of our Combs decision. We had

stated in Combs that judgment as a matter of law was unavailable to an employer once a plaintiff

offered sufficient evidence of pretext as to each of the proffered reasons. Combs, 106 F.3d at

1538. As we have just explained, Reeves tells us judgment as a matter of law will sometimes be

available to an employer in such a case. Reeves, 120 S.Ct. at 2109. And, because the "standard

for granting summary judgment mirrors the standard for granting judgment as a matter of law,

such that the inquiry under each is the same," id. at 2110, the same is true of summary judgment.

difficult" and "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes," the

Supreme Court has told us that "none of this means that trial courts or reviewing courts should treat

discrimination differently from other ultimate questions of fact." St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 524, 113 S.Ct. 2742, 2756, 125 L.Ed.2d 407 (1993) (quoting Postal Service Bd. of Governors v. Aikens,

460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). And quite recently, the Court rejected a

rule which would have made it easier for job discrimination plaintiffs to get their case to a jury, explaining

that "[t]o hold otherwise would be effectively to insulate an entire category of employment discrimination

cases from review under Rule 50, and we have reiterated that trial courts should not treat discrimination

differently from other ultimate questions of fact." Reeves, 120 S.Ct. at 2109 (internal quotation and citation

omitted). The long and short of it is that the summary judgment rule applies in job discrimination cases just

as in other cases. No thumb is to be placed on either side of the scale.

2. The Evidence We Consider in Reviewing a Grant of Summary Judgment

On March 5, 1997, the district court granted summary judgment in favor of the defendants on

Chapman's ADEA claims but denied summary judgment on the ADA claims. On July 2, 1997, after the jury

had returned its verdict against Chapman at the trial of the ADA claims, he filed a motion requesting the court

to reconsider and vacate summary judgment on the ADEA claims. Chapman argued in his motion that

evidence adduced immediately prior to and at the trial of his ADA claims created a genuine issue of material

fact as to whether AIGCS's proffered nondiscriminatory reasons regarding his ADEA claims were pretextual.

The district court denied Chapman's motion to reconsider and vacate, leaving intact the summary judgment

previously entered on the ADEA claims. Chapman contends that the trial testimony demonstrates that the

district court's grant of summary judgment on the ADEA claims was erroneous, and his en banc brief to this

Court relies extensively upon trial testimony in arguing that we should reverse summary judgment. By our

count, the brief's "Statement of the Facts" section contains sixty-seven citations to trial testimony and only

one citation to the summary judgment record.

There are two closely related issues here. One is whether the district court abused its discretion in

not re-opening summary judgment on the ADEA claims after the trial of the ADA claims based upon

evidence that came out shortly before and during that trial. The other issue is whether we should consider

that later evidence in reviewing the district court's decision to grant summary judgment on the ADEA claims.

The two issues are inextricably intertwined and they require a consistent answer. If the district court did not

abuse its discretion in failing to re-open summary judgment on the ADEA claims, then we cannot consider

the evidence that would have been available if the court had re-opened summary judgment.

The rule is that "a federal appellate court may examine only the evidence which was before the

district court when the latter decided the motion for summary judgment." Welch v. Celotex Corp., 951 F.2d

1235, 1237 n. 3 (11th Cir.1992) (citations omitted) (emphasis added); see also 10A Charles Alan Wright et

al., Federal Practice and Procedure § 2716 (3rd ed. 1998) ("The appellate court is limited in its review....

[I]t can consider only those papers that were before the trial court. The parties cannot add exhibits,

depositions, or affidavits to support their position."). The Tenth Circuit elaborated on the rule in United

States v. Hardage, 982 F.2d 1436 (10th Cir.1992), stating that:

[n]either the evidence offered subsequently at the trial nor the verdict is relevant. One who loses on

summary judgment cannot give a retroactive effect to a trial verdict, using it in an effort to create a

genuine issue of material fact at the time the court was considering the motion for summary

judgment.

Id. at 1444 (internal quotations and citations omitted). This universally followed rule is indispensable to the

orderly processing of cases in the district courts.

We have frequently railed about the evils of shotgun pleadings and urged district courts to take a firm

hand and whittle cases down to the few triable claims, casting aside the many non-triable ones through

dismissals where there is failure to state a claim and through summary judgment where there is no genuine

issue of material fact. See, e.g., Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir.1997) (explaining

that "[t]he use of shotgun pleadings in civil cases is a ubiquitous problem," and "[g]iven the seriousness of

that problem, it is particularly important for the district courts to undertake the difficult, but essential, task

of attempting to narrow and define the issues before trial." (internal quotation and citation omitted)). It would

seriously impair the ability of district courts to pare down the issues in multi-claim civil cases if we required

them to revisit and re-evaluate a summary judgment previously granted on one claim because of evidence that

comes out later at the trial of other claims.

Moreover, the approach Chapman would have us follow would burden our already heavily burdened

district courts with multiple trials in a single case where one should suffice. To vacate summary judgment

on one claim after the trial of another claim would necessarily result in two trials instead of one. Indeed, that

is precisely what Chapman's motion to reconsider and vacate requested. There is no good reason for inflicting

that burden of multiple trials upon our system with its finite resources. Parties opposing summary judgment

are appropriately charged with the responsibility of marshaling and presenting their evidence before summary

judgment is granted, not afterwards.

The district court did not abuse its discretion in refusing to re-open after the trial of the ADA claims

the summary judgment it had previously granted in favor of the defendants on the ADEA claims. And

because the district court did not have the testimony from the trial of the ADA claims before it when it

granted summary judgment in favor of the defendants on the ADEA claims, any evidence offered at trial is

not relevant to our review of the ADEA summary judgment and we will not consider it. See U.S. East

Telecomm., Inc. v. U.S. West Communications Servs., Inc., 38 F.3d 1289, 1301 (2nd Cir.1994); Hardage,

982 F.2d at 1444-45; Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.1988); Voutour

v. Vitale, 761 F.2d 812, 817 (1st Cir.1985).12

3. AIGCS's Proffered Nondiscriminatory Reasons

It is undisputed that Chapman established his prima facie case. He was sixty-one years old at the time

that he applied, but was not hired, for a job at AIGCS. He was qualified for at least one of the positions for

which he applied, Casualty Claims Manager. Four individuals who accepted jobs for which Chapman had

applied, including the position of Casualty Claims Manager, were younger than him. Applying the

McDonnell Douglas framework, because Chapman met his burden of establishing a prima facie case, a

presumption of discrimination arose and the burden shifted to AIGCS to proffer a legitimate,

nondiscriminatory reason for not hiring Chapman.13 See Combs, 106 F.3d at 1527-28. To meet that burden,

which is only a burden of production, AIGCS in its motion for summary judgment proffered two legitimate,

nondiscriminatory reasons, one of which was objective and the other subjective. The objective reason as

stated by Turnquist and Wogsland, the decision makers for the positions for which Chapman applied, was

Chapman's lack of "stability in light of the number of jobs he had held in a short period of time." The

12

We recognize that Federal Rule of Civil Procedure 60(b), upon which Chapman based his motion,

allows a district court to relieve a party from a final judgment under circumstances that include "mistake,

inadvertence, surprise, or excusable neglect," "newly discovered evidence which by due diligence could

not have been discovered in time to move for a new trial," "fraud, ... misrepresentation, or other

misconduct of an adverse party," or "any other reason justifying relief...." Fed.R.Civ.P. 60(b). Despite

Chapman's assertions to the contrary, his proffered evidence fits none of the grounds for relief explicitly

described in Rule 60(b), and as we have discussed above, trial evidence on one issue is not a "reason

justifying relief" from an earlier summary judgment on another issue.

13

Chapman presented little or no statistical evidence in the district court that AIGCS discriminated

against older applicants, that is, the members of the protected class. According to AIGCS's calculations,

of the 110 people hired in 1992 (the year in which Chapman was turned down), almost forty percent were

over forty years old. Unable to make his case with statistics, Chapman instead relied upon circumstantial

evidence. Therefore, we use the McDonnell Douglas framework to analyze his claims. See Combs, 106

F.3d at 1527-28.

subjective reason, stated by those same decisionmakers, was Chapman's poor interview.14

AIGCS's proffer of those nondiscriminatory reasons eliminated the presumption of discrimination,

thereby shifting the burden to Chapman to come forward with sufficient evidence to permit a reasonable

factfinder to find that those reasons were pretextual. See Combs, 106 F.3d at 1528. We will discuss each of

AIGCS's proffered reasons and Chapman's attempted showing of pretext as to that reason separately.

a. Chapman's Record of Recent Job Instability

AIGCS articulated its objective reason for not hiring Chapman as follows: "[Ward Turnquist and

James Wogsland, the two vice-presidents who interviewed Chapman,] were concerned about [his] stability

in light of the number of jobs he had held in a short period of time."15 Turnquist explained his position more

thoroughly in his deposition, stating that he "had some concerns about [Chapman's] career path" and that

"there [were] quite a few jobs after the Home [Insurance Company] and before he came to [his current

employer]." That bothered Turnquist, who questioned "what necessitated making as many and as frequent

a job change during what ... was a fairly short period of time...." Notes from Turnquist's interview with

Chapman corroborate his concern. In those notes, Turnquist listed Chapman's employers and the dates

Chapman left each employer.

Wogsland expressed similar sentiments in his deposition. He stated:

The question was basically when you look at a resume and look at why somebody left somewhere

14

There is some ambiguity in the record about exactly what role Turnquist had in the decisionmaking.

Chapman's complaint and early submissions to the district court only mention his interview with

Wogsland and do not mention Turnquist, but Chapman did not allege that Wogsland was the only

decisionmaker or that Turnquist was uninvolved. The position statement the defendants filed with the

EEOC refers only to Turnquist interviewing Chapman and not to Wogsland. Wogsland testified in

deposition that he hired Wiggins, Sevillian and Smith, and that Turnquist hired Jones. Turnquist testified

in his deposition that he screened candidates for Wogsland and that he interviewed Chapman. Chapman

and the defendants did refer to both Wogsland and Turnquist as decisionmakers numerous times in the

district court and in their briefs to this Court. Also, it is undisputed that both of them interviewed

Chapman and each had input into the hiring decisions. Notwithstanding all of this, Chapman's en banc

brief to this Court also states, "Wogsland was the selecting official."

Viewing the evidence in the light most favorable to Chapman, we accept what we

understand to be his current position: that Wogsland and Turnquist were both decisionmakers in

regard to his employment application in the sense that each had input, although Wogsland made

the final call.

15

AIGCS's Memorandum in Support of [its] Motion for Summary Judgment reads as follows:

The evidence belies Plaintiff's allegations that he was not hired by AIGCS because of his

age. Turnquist and Wogsland both testified that they selected Wiggins over Plaintiff

because Plaintiff interviewed poorly and because they were concerned about Plaintiff's

stability in light of the number of jobs he had held in a short period of time....

you look for stability in a position, stability with a company and a progression within a particular

company or if they have left a position for growth opportunities. We did not see that in those three

positions between when he left Home [Insurance Company] and AI Transport.

Wogsland asked Chapman during the interview about the various jobs Chapman had between Home

Insurance Company and AI Transport, but Chapman "wasn't very clear about why he had gone from Home

to several other positions before he got to Transport...."

In response to AIGCS's articulated reason, Chapman asserted that he "had established a record as

evidenced by his performance appraisals which were a more immediate indication of his stability," and that

"he continued to work on files for J. Gordon Gaines while working for [the] three different employers

between the time he left Home Insurance (after 16 years) and joined AI Transport." Chapman also argued

that Wiggins, who was selected instead of him as Casualty Claims Manager, had worked for a total of six

other employers during his entire career (which spanned twenty-three years).

Chapman and Wiggins each went to work in 1988 for AI Transport, which was their employer when

they applied for the Casualty Claims Manager position at AIGCS in 1992. Notably, Chapman did not dispute

that he had worked for three different employers in the three years before he joined AI Transport in 1988.

Nor did he dispute that Wiggins had worked for only one employer in the ten years before Wiggins joined

AI Transport in that same year.

Chapman's assertions about his good performance and continued work on the Gaines account may

be true, but the reason AIGCS proffered for not hiring Chapman was the number of times he had changed

employers in a specified short period of time (between leaving Home Insurance in 1985 and going to AI

Transport in 1998), not his performance appraisals and not the number of clients he had been involved with

as he switched from one employer to another.16 And while it may be true that both Chapman and Wiggins

had worked for a total of six other employers during their entire careers, AIGCS's proffered

nondiscriminatory reason was not the number of employers for which Chapman had ever worked. It was the

number of times Chapman had changed employers in a specified period.17

16

Chapman's reliance on his continued work on the Gaines account as an explanation for his job

skipping may be unfounded. It appears from Wogsland's interview notes and Chapman's affidavit that

although Chapman continued working on files for Gaines, the files upon which he worked were different

at each employer. However, it is unnecessary for us to decide whether Chapman's explanation is

persuasive because, as discussed above, that explanation does not meet the reason proffered by AIGCS.

17

Turnquist did say in his deposition that he also looked at an applicant's entire work history, and

recognized that there were commendable parts of Chapman's history. He also indicated that his concerns

went beyond the job switching during the period between Home Insurance and AI Transport, saying that

A plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute

his business judgment for that of the employer. Provided that the proffered reason is one that might motivate

a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom of that reason. See Alexander v. Fulton County, Ga., 207 F.3d

1303, 1341 (11th Cir.2000) (Title VII case) ("[I]t is not the court's role to second-guess the wisdom of an

employer's decisions as long as the decisions are not racially motivated."); Combs, 106 F.3d at 1541-43.18

We have recognized previously and we reiterate today that:

[f]ederal courts "do not sit as a super-personnel department that reexamines an entity's business

decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional

process, no matter how mistaken the firm's managers, the ADEA does not interfere. Rather our

inquiry is limited to whether the employer gave an honest explanation of its behavior."

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (quoting Mechnig v. Sears, Roebuck

& Co., 864 F.2d 1359, 1365 (7th Cir.1988) (citations omitted)); see also Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (An "employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for

a discriminatory reason."); Abel v. Dubberly, 210 F.3d 1334, 1339 n. 5 (11th Cir.2000). We "do not ...

second-guess the business judgment of employers." Combs, 106 F.3d at 1543; accord Alexander, 207 F.3d

at 1339, 1341; Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir.1999) ("We

have repeatedly and emphatically held that a defendant may terminate an employee for a good or bad reason

without violating federal law. We are not in the business of adjudging whether employment decisions are

he was concerned "[n]ot necessarily just [with] that time frame." That is not inconsistent with the salient

concern about job instability being, as Wogsland testified, the proffered one of the three job switches

during the specified three-year period.

18

In Combs, the employer maintained that the superior supervisory experience of the person selected

for the job was the reason that person was hired instead of the plaintiff. See id. at 1541-43. The plaintiff,

in response, presented evidence that the person selected had been forced to resign from a prior position

because of financial improprieties. See id. at 1543. We stated that "[f]inancial impropriety is a serious

matter," but recognized that the employer's proffered nondiscriminatory reason was not financial probity,

but supervisory experience, and that the employer was entitled to select the criteria upon which it based

hiring decisions. Id.

As a result, we held in Combs that the undisputed evidence of the comparator's financial

impropriety was not sufficient to create a genuine issue of pretext when the employer's proffered

reason was the difference in supervisory experience. We explained that "a plaintiff may not

establish that an employer's proffered reason is pretextual merely by questioning the wisdom of

the employer's reason, at least not where, as here, the reason is one that might motivate a

reasonable employer." Id. Accordingly, we held that the plaintiff had not presented sufficient

evidence for a factfinder to conclude the employer's reason was pretextual, and we reversed the

district court's denial of the employer's motion for judgment as a matter of law. See id.

prudent or fair." (internal citation omitted)).19

Here, the proffered reason clearly meets the test of being one that might motivate a reasonable

employer. Indeed, leaving several employers in a recent and short period of time, or job-skipping, is an

imminently reasonable basis upon which to choose between job applicants. As the Seventh Circuit has

observed: "High turnover of skilled workers can be very harmful to a company. The worker who leaves may

take with him trade secrets valuable to a competitor or the benefits of specialized training that the employer

had given him, at some expense, in the hope of recouping the expense in the worker's superior productivity

now to be enjoyed by another employer." Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th

Cir.2000). Furthermore, it makes sense for an employer to be concerned about how often an applicant has

changed employers in recent years, instead of his career total or average. An employer could reasonably

conclude that a job applicant who has not stayed with any recent employer for very long is unlikely to stay

with it for long, either, and that what the applicant will do in the near- and mid-range future is better predicted

from recent behavior than from what happened ten or twenty years ago.20

Chapman's purported loyalty to one client of several of his employers does not do him any good in

this analysis. An employer reasonably could be more concerned with an applicant's loyalty to employers than

with his loyalty to clients. Indeed, we would be surprised if that were not the case. For that reason, it is

altogether understandable why an employer might count the number of times a job applicant has changed

employers instead of the number of different clients he has worked with at his various employers. In any

event, even if we were to disagree with the wisdom of the hiring criterion used by AICGS, it is not our role

to decide how to run AICGS's business or to dictate employment criteria to it.

AIGCS presented Chapman's job instability in light of the number of jobs he had held in a specified

recent and short period of time as a legitimate, nondiscriminatory reason for not hiring him. The burden

19

Just as plaintiffs are not allowed to recast an employer's proffered reason, so also should courts

refrain from doing so. Accordingly, we take the reason proffered by the employer at the time of summary

judgment, the reason presented to the district court, and examine it. AIGCS's proffer, as particularized in

the Wogsland and Turnquist depositions, focused on the 1985 to 1988 period, the three years between

Chapman's departure from Home Insurance and his arrival at AI Transport. The dissenting opinion

focuses instead on the thirteen-year period before Chapman arrived at AI Transport, but that is not the

period proffered at the summary judgment stage as specified in the deposition of the two decision makers.

20

It appears that Chapman may have shared AIGCS's opinion about what his job history showed. The

resume that he submitted to AIGCS listed all of his employers, but gave not one date as to when he

started or finished with any of them.

shifted to Chapman to produce sufficient evidence for a factfinder to conclude that this reason was a pretext

for age discrimination. Chapman did not produce any such evidence. None of the evidence he offered

rebutted AIGCS's articulated nondiscriminatory reason. Chapman's good performance appraisals indicate

that he performed satisfactorily his job for his present employer. Chapman's continuous work on the Gaines

account supposedly shows that he was loyal to that client and the client was pleased with his work. But those

facts in no way undermine AIGCS's stated concern about Chapman's changing employers three times in a

recent three-year period.21

Unable to knock down AIGCS's proffered reason of job instability by comparing himself to Wiggins,

who was hired as the Casualty Claims Manager, Chapman has attempted on appeal to extend his comparison

beyond Wiggins, contending that one of the other AI Transport employees—Earnest John Smith—who was

hired by AIGCS in another position had an employment history similar to his own. However, this contention

does not help Chapman. First, he did not make this argument in the district court; there, the only employee

Chapman contended had an employment history similar to his own was Wiggins. See Redwing Carriers, Inc.

v. Saraland Apartments, 94 F.3d 1489, 1511 n. 30 (11th Cir.1996) ("As a general rule, we will not address

claims or arguments not fairly presented to the district court." (citation omitted)).

Second, even if we were to consider the job history of Smith, Chapman would still have failed to

create a genuine issue of pretext. AIGCS's concern was the number of times Chapman had changed jobs in

a recent, short period of time. Smith had not changed employers as many times as Chapman had in as recent

and short a period of time. Unlike Chapman, who had worked for three different employers in the three years

before he joined AI Transport in 1988, Smith had only worked for two employers during that time period (and

the first of those he had been with for six years, unlike Chapman who had been with his first one during that

21

At oral argument, Chapman also contended that AIGCS's reliance on Chapman's having changed

employers three times in three years as a legitimate, nondiscriminatory reason was implausible because

any such concern must have been resolved when Chapman was hired by AI Transport in 1988. That

contention is meritless. Different decisionmakers are entitled to be concerned about different things. Just

as we will not dictate employment criteria to any company, we will not require separate decisionmakers

for different, albeit related, companies to use the same criteria. Spann hired Chapman into AI Transport

in 1988. Wogsland and Turnquist interviewed Chapman in 1992 and chose not to hire him into AIGCS.

Whether Spann considered Chapman's job-skipping and, if so, how he factored that shortcoming into his

decision has no bearing on whether Wogsland and Turnquist reasonably could consider it. Besides, there

is nothing in the record to show the job skipping history of anyone else who applied for the job Chapman

got at AI Transport. For all we know, any other applicant for that position at AI Transport in 1988 had an

even worse record of disloyalty to employers, or had some additional shortcoming.

period for only one year).22

Our dissenting colleagues point to Sevillian and Jones, two other employees who were hired in other

positions at AIGCS, and contend that they, too, had job instability records as bad or worse than Chapman.

This is an argument Chapman himself did not make in the district court or in his panel or en banc briefs to

this Court. We share Chapman's apparent conclusion that this argument lacks merit. For one thing, Jones

was hired by AIGCS after Chapman had been fired by AI Transport, and we do not think a reasonable jury

could find discrimination in the failure of a company to hire an applicant recently fired by another company

for insubordination, or one who had just left (yet again) one employer for another.23 In any event, Jones did

not have a recent history of job instability like Chapman. To the contrary, he had been with one employer

during the period Chapman had been with three, and in fact had been with that one company since 1983. As

22

AIGCS has not been inconsistent about what it means by Chapman's "recent" history of job

skipping. In its Memorandum in Support of Motion for Summary Judgment, AIGCS proffered Turnquist

and Wogsland's concern "about Plaintiff's stability in light of the number of jobs he had held in a short

period of time," not characterizing it as "recent." In his deposition, Turnquist further specified that

concern about Chapman's job instability as "there was quite a few jobs after the Home [Insurance

Company] and before he came to [his current employer]." Wogsland specified that same three-year

period as the source of his concern, testifying in deposition that he had been looking for someone with job

stability and progression within a company, and "We did not see that in those three positions between

when he left Home [Insurance Company] and AI Transport."

The dissenting opinion suggests that Wogsland and Turnquist's concern with Chapman's

job skipping during the three-year period between the time he left Home Insurance and went to

AI Transport, which was from 1985 to 1988, is somehow inconsistent with Wogsland's statement

in deposition that Chapman "had not had any recent general liability experience" (which was

never proffered as a reason for not hiring him). The perceived inconsistency is apparently

between the period Wogsland referred to as not "recent" for purposes of Chapman's general

liability experience, and Wogsland's use of the word "recent" at one point during his deposition to

refer to Chapman's job skipping during what was approximately the same period of time in which

Chapman did not have general liability experience.

We see no inconsistency, because there is no reason why what is recent for purposes of

job skipping also must be defined as recent for purposes of a particular type of claims handling

experience. The more fundamental point, however, is that the proffered reason was not "recent"

job skipping—although that is how the panel opinion, this opinion, and the dissenting opinion

have characterized it. The actual proffered reason, as specified in Wogsland and Turnquist's

depositions, was job skipping during a particular short period of time, defined as the period from

Chapman's departure from Home Insurance Company (in 1985) to his arrival at AI Transport (in

1988). Wogsland did at one point in his deposition apply the adjective "recent" to that period of

time, but his doing so in no way detracts from the specificity of the period. And there is nothing

vague or undefined about that specified period between the time Chapman left Home Insurance

and the time he started work at AI Transport—regardless of whether one would call it "recent,"

"nearly recent," "pretty darn recent," or "mighty recent."

23

While there is no evidence that Turnquist knew at the time he hired Jones for the position of

Complex Claims Director that Chapman had been fired by AI Transport for insubordination, Turnquist's

undisputed deposition testimony was that he did not consider Chapman for the Complex Claims Director

position because he heard that Chapman had left AI Transport and gone with another company.

for Sevillian, he had also been with only one employer during the period Chapman had been with three, and

he had been with that employer since 1981.24

Because Chapman did not produce sufficient evidence for a reasonable factfinder to conclude that

AIGCS's proffered nondiscriminatory reason of recent job instability for declining to hire Chapman was a

pretext for age discrimination, the defendants were entitled to summary judgment on the ADEA claims.

b. Chapman's Interview

AIGCS articulated another reason for not hiring Chapman, his poor interview. Chapman asserts that

Wogsland and Turnquist's assessment of his interview is not a legally sufficient reason to grant summary

judgment for the defendants because of its subjective nature.

We begin with an important threshold point: A subjective reason can constitute a legally sufficient,

legitimate, nondiscriminatory reason under the McDonnell Douglas /Burdine analysis. Indeed, subjective

evaluations of a job candidate are often critical to the decisionmaking process, and if anything, are becoming

more so in our increasingly service-oriented economy. Take, for example, a job requiring continuing

interaction with the public, such as a sales clerk or wait staff position. Attitude, articulateness, and

enthusiasm, as well as appearance, can be vitally important in such a job, yet there are few if any ways to

gauge such qualities objectively or from a written application. Interviews give prospective employers a

chance to see if an applicant has the kind of personal qualities a service job requires and can be the best way

an employer has to determine how a person interacts with others. Body language, tone of voice, eye contact,

facial expressions and other non-verbal cues significantly affect the impression an applicant makes on the

interviewer and will make on those whose business the company wants to attract or retain, but such things

are hard to quantify and articulate with any precision and can only be evaluated subjectively.

Personal qualities also factor heavily into employment decisions concerning supervisory or

professional positions. See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir.1986) (racial

discrimination alleged in layoff from position as engineer) ("Indeed, in many situations [subjective criteria]

are indispensable to the process...."); Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir.1989) (sex

24

It might appear to the casual reader that the historical facts concerning the job histories of Wiggins,

Jones, Smith, and Sevillian that are set out in this opinion differ from those set out in the dissenting

opinion. Not so. A careful review will reveal that the difference is in the period of time involved. We

feel that the proper period of measurement is the time after Chapman left Home Insurance in 1985 until

the time he joined AI Transport in 1988. That three-year period is the proper measurement because it is

the one the decisionmakers used, the one proffered by AIGCS. As we have explained, neither plaintiffs

nor courts are allowed to recast proffered reasons.

discrimination alleged in failure to promote) ("Subjective criteria necessarily and legitimately enter into

personnel decisions involving supervisory positions." (citation omitted)). Traits such as "common sense,

good judgment, originality, ambition, loyalty, and tact" often must be assessed primarily in a subjective

fashion, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991, 108 S.Ct. 2777, 2787, 101 L.Ed.2d 827

(1988), yet they are essential to an individual's success in a supervisory or professional position. See id. at

999, 108 S.Ct. at 2791 ("It would be a most radical interpretation of Title VII for a court to enjoin use of an

historically settled process and plainly relevant criteria largely because they lead to decisions which are

difficult for a court to review.") (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 96 (2nd Cir.1984)).

It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the

ability to rely on important criteria in its employment decisions merely because those criteria are only capable

of subjective evaluation. See Watson v. Ft. Worth Bank & Trust, 487 U.S. at 999, 108 S.Ct. at 2791. To

phrase it differently, subjective reasons are not the red-headed stepchildren of proffered nondiscriminatory

explanations for employment decisions. Subjective reasons can be just as valid as objective reasons.

Nonetheless, we are mindful of the requirement articulated by the Supreme Court in Burdine that

"the defendant's explanation of its legitimate reasons must be clear and reasonably specific" so that "the

plaintiff be afforded a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 258, 101 S.Ct.

at 1096 (quotation omitted). A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason

if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective

opinion. Continuing our example of a sales clerk or wait staff position, it might not be sufficient for a

defendant employer to say it did not hire the plaintiff applicant simply because "I did not like his appearance"

with no further explanation. However, if the defendant employer said, "I did not like his appearance because

his hair was uncombed and he had dandruff all over his shoulders," or "because he had his nose pierced," or

"because his fingernails were dirty," or "because he came to the interview wearing short pants and a T-shirt,"

the defendant would have articulated a "clear and reasonably specific" basis for its subjective opinion—the

applicant's bad (in the employer's view) appearance. That subjective reason would therefore be a legally

sufficient, legitimate, nondiscriminatory reason for not hiring the plaintiff applicant. The burden would then

shift back to the plaintiff to offer sufficient evidence for a reasonable factfinder to find that the defendant's

reason was pretext for discrimination.25

Although we, sitting as an en banc court, have the ability to overrule our prior circuit precedent, see

Combs, 106 F.3d at 1534, we do not believe our holding today is inconsistent with our past decisions. See

Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1322 (11th Cir.1982) ("An employer's decision may

properly be based on subjective factors." (citation omitted)); Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1011-

14 (11th Cir.1984); Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1500 (11th Cir.1985) (A subjective

reason "is legally sufficient to satisfy the employer's burden of produc[ing] [a legitimate, non-discriminatory

reason] so long as it is capable of objective evaluation."); Woody v. St. Clair County Comm'n, 885 F.2d 1557,

1562-63 (11th Cir.1989) (affirming district court's judgment that employer's subjective evaluation of how

long employee would stay on the job was not pretextual because it was based on objective indicators); EEOC

v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1280 n. 17 (11th Cir.2000) ("[E]mployment decisions may

legitimately be based on subjective criteria as long as the criteria are capable of objective evaluation and are

stated with a sufficient degree of particularity."). But to the extent of any inconsistency between our past

decisions and our decision today, of course, the rule we announce today controls.

We now apply this rule to the present case. Although the proffered reason, Chapman's poor

interview, was subjective, AIGCS offered a clear and reasonably specific explanation of why Wogsland and

Turnquist, the decisionmakers, arrived at that subjective conclusion. Wogsland stated:

Within the interview that I conducted with [Chapman], it was basically that he was not very concise

with the answers. He did not take an aggressive approach in asking me questions about the position,

where we were going. His answers were not very sharp, to the point, when I asked them, which

basically were the same comments that [Turnquist] gave me about his interview [with Chapman].

Wogsland observed that Chapman's imprecise answers were not "the answers [he] would expect [Chapman]

needed to [be able to] give to technicians under his control, within his unit." As an example of an unclear

answer given by Chapman, Wogsland stated that Chapman "wasn't very clear about why he had gone from

Home [Insurance Company] to several other positions before he got to Transport...."

Turnquist explained that he too was concerned about how Chapman presented his work history. In

25

The warnings in Mendoza v. Borden, Inc., 195 F.3d 1238, 1255-56 (11th Cir.1999) (en banc)

(Carnes, J., concurring), about the dangers of "perception prevarication" are not inconsistent with our

holding in this case. Those warnings were directed at purely subjective, conclusory impressions of a

litigant that are devoid of any objective facts which, if false, can be contradicted by testimony or other

evidence. As we explain in the text, where a decisionmaker's subjective reason is supported by a "clear

and reasonably specific" explanation, as required by Burdine, there will be objective factors that can be

tested against other testimony and evidence.

comparing Wiggins and Chapman's interviews, Turnquist stated:

I thought that Graham Wiggins made a better presentation of himself and his skills. His knowledge

skills and abilities and thought that he would have—he seemed to exhibit. I just had—I don't have

an answer to that—I seem—I felt I had more confidence in Graham in the way he presented his work

history.

Even though Wogsland and Turnquist subjectively evaluated Chapman's interview, they also explained the

grounds for their evaluation with reasonable clarity and specificity given the passage of time.26 AIGCS thus

met its burden of producing a legitimate, nondiscriminatory reason.

After AIGCS articulated this second reason, Chapman's poor interview, the burden shifted back to

Chapman to present sufficient evidence that AIGCS's reason was pretextual. In response, Chapman said only

that there was "limited probative value of [Wogsland and Turnquist's] opinions about Mr. Chapman's

appearance and demeanor" and that "this testimony is pretext for intentional discrimination."27

Our dissenting colleagues focus on Wogsland's statement that one reason he was unimpressed with

Chapman was that he was not aggressive in answering questions during the interview. Because there is a

stereotype that older people are not as aggressive as younger people, they would have us treat use of

aggressiveness as a hiring criteria as equivalent to age bias, or at the least as highly suspicious. We decline

to do so. In the rough and tumble, highly competitive business world, aggressiveness can be a valuable and

much sought after trait. Just because a sought after trait is linked by stereotype to an impermissible

consideration does not mean an employer cannot search for and consider the trait itself independently from

the stereotype. For example, according to stereotype women are not as physically strong as men. If an

employer is hiring people for positions that require a great deal of physical strength, it would be permissible

26

Chapman argues, among other things, that Wogsland and Turnquist's explanations are insufficient

because they were neither contemporaneously documented nor detailed. First, we believe that their

explanations, especially Wogsland's, were sufficiently detailed given the circumstances. Wogsland even

provided an example of a question to which Chapman's answer was unclear. Second, the interview notes

did not purport to be complete. Wogsland testified that he did not write down every word or even every

topic of conversation. This Court has never held that an interviewer must take substantially verbatim

notes of an interview, or even any notes at all, to be entitled to proffer legitimate, nondiscriminatory

reasons gleaned from an interview, and we refuse to hold that today. Such close judicial oversight of a

business and its hiring practices would be unprecedented and unwarranted.

Similarly, we have never held that an employer cannot rely upon reasons that are not

written down in advance of the selection process, and we decline to do so now.

27

In deposition testimony, Chapman stated only that Wogsland and Turnquist were courteous,

businesslike, professional and respectful during his interviews, something no one disputes. However,

deposition testimony about that fact was not responsive to Wogsland and Turnquist's assessment of

Chapman's performance in his interviews, and Chapman did not argue to the district court that it was

responsive.

for the decisionmakers to hire a man instead of a woman if that particular man has more physical strength

than that particular woman, even though the decision could not be based on the stereotype about the

comparative physical strength of men and women in general. In this case, the decisionmakers considered

Chapman's lack of aggressiveness because he was not aggressive in the interview, not because of his age.

Along these lines, it is noteworthy that Turnquist also thought another interviewee, who was only 39 years

old, also was not aggressive enough for the position of Casualty Claims Manager.28

Chapman had a fair chance to respond to the objective bases for the subjective reason proffered for

not hiring him, but Chapman never refuted those objective bases. He never said he asked a single question

during the interview, never said he explained clearly during the interview why he had so many employers

between Home Insurance Company and AI Transport, and never said he had given concise answers to the

questions he was asked. Moreover, Chapman's affidavit submitted in response to AIGCS's summary

judgment motion does not even mention the interview. Because the poor interview subjective reason backed

up by clear and reasonably specific bases is a legitimate, nondiscriminatory reason, and Chapman failed to

present sufficient evidence to show that the reason was pretextual, the defendants were entitled to summary

judgment on the ADEA claims.29 See Combs, 106 F.3d at 1543.

4. Conclusion

In order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable

factfinder to conclude that each of the employer's proffered nondiscriminatory reasons is pretextual. See id.

(requiring a plaintiff to rebut "all of the defendant's proffered nondiscriminatory reasons for its actions" to

28

That other interviewee was Sevillian. Although not hired to be Casualty Claims Manager, Sevillian

was hired for another position. That does not mean Wogsland or Turnquist disregarded Sevillian's lack of

aggressiveness. It was only one factor in their assessment of the interviewees, and Sevillian definitely did

not have the recent history of job instability that weighed against Chapman. Nor is there any basis in the

record for assuming that aggressiveness was thought to be equally important in all positions across the

board.

29

One of the issues we asked the parties to brief and argue was whether a plaintiff could establish

pretext as to a proffered subjective reason by showing that a proffered objective reason was pretextual.

Because we conclude that Chapman failed to create a genuine issue of material fact as to the objective

reason, see Part IV.A.3.a supra, we have no occasion to address the objective-to-subjective pretext

spillover issue. That part of the panel opinion, see Chapman, 180 F.3d at 1250, remains vacated. Of

course, the fact that we do not address that issue does not in any way imply our agreement with the

dissenting opinion about it.

avoid judgment as a matter of law).30 The defendants in this case proffered two nondiscriminatory reasons

for failing to hire Chapman. He did not produce sufficient evidence to create a genuine issue of pretext as

to either. Therefore, we affirm the district court's grant of summary judgment to the defendants on two

independently adequate bases: Chapman's failure to create a genuine issue of pretext as to the objective

reason, and also his failure to create a genuine issue of pretext as to the subjective reason.31

B. The Trial of Chapman's ADA Claims

1. Chapman's Motion for a New Trial

Part B of the panel opinion addresses Chapman's contentions that the jury verdict against him on his

ADA claims should be overturned based upon the trial evidence. See Chapman v. AI Transport, 180 F.3d

1244, 1251 (11th Cir.1999). The panel concluded "that the district court did not abuse its discretion in

refusing to grant Chapman's motion for a new trial on his ADA claims against all defendants." Id. Agreeing

30

In Combs, the defendant employer proffered three legitimate, nondiscriminatory reasons why it had

promoted another employee instead of the plaintiff. We "consider[ed] the evidence related to each of the

three proffered nondiscriminatory reasons." Id. at 1539 (emphasis added). After analyzing each reason

separately, we concluded that the plaintiff had presented sufficient evidence to show that two of the

reasons were pretextual, but he had failed to present sufficient evidence to show the third reason was

pretextual. See id. at 1539-43. Because the plaintiff failed to rebut one of the three reasons, we held that

the defendant was entitled to judgment as a matter of law. See id. at 1543.

The dissenting opinion would carve out a number of exceptions to the well-established

rule that a plaintiff must show pretext as to each proffered reason. To the extent this case

presents a factual basis for any such exception, we reject that exception. To the extent this case

does not present a factual basis for such an exception, we express no view on whether that

exception might exist in some case with different facts.

31

While Chapman's main focus is on the failure to hire him for the Casualty Claims Manager position

which went to Wiggins, he also contends that he has a viable ADEA claim as to the three other positions

that went to Jones, Smith, and Sevillian. His written application note did express interest "concerning the

openings or new positions to be available" at AIGCS, and said he "would welcome the opportunity to

discuss this with you or to be considered for one of the open positions." Wogsland and Turnquist did

consider Chapman for one of the open positions, the position of Casualty Claims Manager. After

interviewing Chapman for that position, Wogsland and Turnquist were less than impressed with his

interview and were concerned about his history of job instability. Given those facts, we do not think that

a jury could reasonably infer age discrimination as to the other positions that went to Jones, Smith, and

Sevillian. Moreover, as we have already mentioned, the position for which Jones was hired was not filled

until Chapman had been terminated at AI Transport.

Implicit in Chapman's contentions about the other positions is the premise that an

applicant can, by the simple expedient of expressing an interest in all open positions, put on an

employer filling a large number of positions the burden of proffering reasons for not hiring the

applicant for each position. That would be quite a burden. Here, for example, Wogsland alone

hired people to fill 110 positions during the Fall of 1992 (Chapman was interviewed in October

of 1992). At least where the employer considers an applicant for a particular position and has a

reason for not hiring him that is generally applicable (as job instability is), the employer need not

specifically consider that applicant for every other position that is open at the time or comes open

in the future.

with that conclusion and the analysis supporting it, we reinstate Part B of the panel opinion.

2. The Redaction of Part of the Position Statement

The panel opinion also deals with Chapman's contention that the district court abused its discretion

by excluding from evidence at trial part of the position statement the defendants had submitted to the EEOC

in response to Chapman's charges. That statement was prepared by Esther Kornblau, an AIG employee, as

part of the EEOC conciliation process. The part of the position statement that the district court refused to

admit into evidence described Chapman's transfer by AI Transport to the position of SIR Manager as a

promotion, when it was actually a lateral move. The panel concluded that part of the statement should have

been admitted into evidence because it "would have been, from Chapman's perspective, evidence of the

defendants' lack of credibility." Chapman, 180 F.3d at 1252. The panel posited that the "evidence might

have been useful to impeach the defendants' general integrity." Id. at 1252 n. 2. However, the panel

concluded that the district court's failure to admit that part of the position statement was harmless. See id.

at 1252.

When we granted rehearing en banc we had intended to decide the issue of whether evidence of one

corporate official's false statement concerning the plaintiff's employment is admissible to undermine the

credibility of another corporate official, who was the actual decisionmaker, or to undermine the credibility

of the corporation as a whole. Upon closer review of the record, however, we find that issue is not presented

in this case. Although a corporate official who was uninvolved in Chapman's termination from AI Transport

prepared the position statement, the AI Transport officials who were involved in his termination reviewed

the statement and did not point out any mistakes. Thus, the false statement was directly relevant to those

decision makers' credibility. We need not decide whether the district court abused its discretion in failing to

admit the evidence, however, because we agree with the panel opinion that any error was harmless.

We leave vacated that part of the panel opinion indicating that a false or misleading statement by one

corporate official may be used to undermine the credibility of another corporate official who was not involved

in the making or submission of the statement. See id. at 1252. We also leave vacated any implication about

general corporate credibility. See id. at 1252 n. 2. Those issues are not presented by this record, and we

express no view on them.

3. The Award of Costs Pursuant to Rule 54(d)

The defendants, as the prevailing party, submitted a bill of costs pursuant to Federal Rule of Civil

Procedure 54(d)(1), and the district court initially awarded costs to the defendants in the full amount

requested, which was $34,504.90. However, after Chapman filed objections, the defendants submitted an

amended bill of costs for $28,943.95. After deducting $7,088.70 from the amount requested in the amended

bill of costs in order to remove items it found were not necessary to the litigation of the case, the district court

awarded costs in the amount of $21,855.25. Chapman contends that in calculating the amount of costs he was

required to pay, the district court erred by failing to take his financial status into account, as he requested in

his opposition to the amended bill of costs.

We asked the parties to brief the issue of whether the district court has the authority to consider the

non-prevailing party's financial resources, or the lack thereof, as a factor in calculating the amount of costs

to be awarded. Rule 54(d)(1) provides that "costs other than attorney's fees shall be allowed as of course to

the prevailing party unless the court otherwise directs." That provision establishes a presumption that costs

are to be awarded to a prevailing party, but vests the district court with discretion to decide otherwise. See

Fed.R.Civ.P. 54(d)(1); Delta Air Lines, Inc. v. August, 450 U.S. 346, 351, 101 S.Ct. 1146, 1149, 67 L.Ed.2d

287 (1981).

However, the district court's discretion not to award the full amount of costs incurred by the

prevailing party is not unfettered, see Head v. Medford, 62 F.3d 351, 354-55 (11th Cir.1995), "since denial

of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of the

litigation." Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir.1977) (internal marks and citation

omitted). To defeat the presumption and deny full costs, a district court must have and state a sound basis

for doing so. See Medford, 62 F.3d at 354 (citing Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir.1984));

Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.1999). We review a district court's decision about

costs only for abuse of discretion. See Technical Resource Servs., 134 F.3d at 1468.

We hold that a non-prevailing party's financial status is a factor that a district court may, but need

not, consider in its award of costs pursuant to Rule 54(d). See Smith v. Southeastern Penn. Transp. Auth.,

47 F.3d 97, 100 (3rd Cir.1995); McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.1994). If a district court in

determining the amount of costs to award chooses to consider the non-prevailing party's financial status, it

should require substantial documentation of a true inability to pay. See McGill, 18 F.3d at 459

(non-prevailing party offered no documentary support, relying instead on "unsupported, self-serving

statements"); Cherry, 186 F.3d at 447 (no reduction in cost award despite proof that plaintiff had "no

independent income and owned no property in her own name" because she had "sufficient access to marital

property" and a 401(k) plan).

Moreover, when awarding costs a district court should not consider the relative wealth of the parties.

Comparing the financial resources of the parties would unduly prejudice parties with assets and undermine

"the presumption that Rule 54(d)(1) creates in prevailing parties' favor, and ... the foundation of the legal

system that justice is administered to all equally, regardless of wealth or status." Cherry, 186 F.3d at 448;

see also Smith, 47 F.3d at 100. Even in those rare circumstances where the non-prevailing party's financial

circumstances are considered in determining the amount of costs to be awarded, a court may not decline to

award any costs at all. Cf. Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 917 (11th Cir.1982) ("we hold

that in no case may the district court refuse altogether to award attorney's fees to a prevailing Title VII

defendant because of the plaintiff's financial condition," because "[a] fee must be assessed which will serve

the deterrent purpose of the statute, and no fee will provide no deterrence."). Subject to that restriction and

to the requirement that there be clear proof of the non-prevailing party's dire financial circumstances before

that factor can be considered, we leave it to the district court's discretion whether to do so in a particular case.

Chapman did submit financial disclosures to the district court, although the defendants contend those

disclosures are not detailed enough and fail to establish that full costs should not be awarded. The district

court noted that "the Eleventh Circuit has not yet directly addressed ability to pay as a factor in assessing

costs." It then awarded the full amount of costs it found to have been necessary to the litigation.

We cannot tell from the district court order whether the court recognized that it had limited discretion

to consider a non-prevailing party's financial condition in calculating the amount of costs to award, or thought

it had no discretion regardless of the financial showing made.32 Accordingly, we will vacate the order

awarding costs and remand this case to the district court for the limited purpose of allowing the court to

reconsider its decision in light of the rules we set out in this opinion. We do not mean to imply that the

district court must consider Chapman's financial situation in calculating the amount of costs to be awarded,

even if he proves his financial situation is extreme, but only that the court must realize that it has the

32

The final explanatory sentence of the district court's order awarding costs does say that "at least

under the circumstances here, Chapman's financial situation is not a factor in whether the Court awards

costs," but that statement was preceded in the same sentence with these words: "given the Eleventh

Circuit's willingness to award statutorily permitted costs and fees limited only by the precaution that the

party seeking reasonable reimbursement be the prevailing party."

discretion to do so.33 Now that we have stated the law of the circuit on this matter, we will assume in cases

arising hereafter that district courts are aware of their discretion and its parameters, unless there is some

affirmative indication to the contrary.

V. CONCLUSION

We AFFIRM the district court's grant of summary judgment to the defendants on the ADEA claims,

and AFFIRM the judgment entered on the jury verdict in favor of the defendants on the ADA claims. We

VACATE the order awarding costs to the defendants and REMAND the case to the district court for the

limited purpose of allowing it to reconsider that order in light of our discussion about the matter in this

opinion.

BIRCH, Circuit Judge, concurring in part and dissenting in part, in which BARKETT and WILSON,

Circuit Judges, join:

While important to the parties involved and deserving of careful treatment by the court, this case does

not appear to be unusual at first blush. An older employee with excellent performance evaluations applies

to receive one of several higher-paying positions—but the positions all go to younger workers. The older

employee sues his employer for age discrimination. This seemingly modest case, however, has become a

vehicle for considering plaintiffs' right to a jury trial and the distinction between questions of fact for the jury

and questions of law for the judge. Most specifically, this case focuses upon the dispositive weight to be

accorded an employer's purely subjective rationale for a putative non-discriminatory adverse employment

action. Because summary judgment is inappropriate in light of Defendants' purely subjective decisionmaking

and in the face of significant gaps and inconsistencies in the record, I dissent.1

I. Background

A. Procedural Posture

While the Americans with Disabilities Act portion of this case did proceed to trial, the district court

granted summary judgment to Defendants as to the Age Discrimination in Employment Act ("ADEA") claim.

In granting Defendants summary judgment on the ADEA claims, the district court rejected the magistrate

judge's recommendation that summary judgment be denied as to AIGCS on the ADEA claim.

B. The Applicants & Application Process

33

Chapman makes other contentions relating to the district court's award of costs against him, but we

find none of them merit discussion.

1

I concur in the majority opinion as to the appeal on the ADA trial verdict and on the award of costs.

The ADEA portion of this case arose from the interviewing and hiring process applied to certain

applicants for positions with AIGCS.2 The applicants included:

Plaintiff John Chapman: Chapman graduated with a bachelor's degree from Emory University in

1955 and with a J.D. from Stetson College of Law (an accredited law school) in 1961.3 His post-college

experience included: State Farm (1957 to May 1964); Hartford Insurance (May 1964 to September 1969);

Home Insurance (September 1969 to June 1985); the Claimsman (July 1985 to August 1986); J. Gordon

Gaines/Liberty National Fire Insurance ("Gaines") (August 1986 to April 1988); B.R. Martin (April 1988

to September 1988); and AIGCS/AI Transport4 (October 1988 to December 1992).5 Thus, Chapman had a

bachelor's degree, a J.D. from an accredited law school, and six employers in the 31 years between finishing

college and starting to work for AIGCS. Chapman worked on Gaines files at all of the employers for which

he worked between leaving Home Insurance and starting to work for AIGCS.6

Warren Jones: Jones graduated with a bachelor's degree from Jonathan C. Smith University in 1977;

he attended insurance training classes but had no graduate or law school training.7 His post-college

experience included: Prudential (1977-79); Crawford & Company (from mid-1980 to mid 1982);

Progressive (from mid-1982 to late 1982 or early 1983); USF & G (from late 1982/early 1983 to 1987 or

1988); AIGCS/AI Transport (1987 or 1988 to present).8 Thus, Jones had a bachelor's degree, no graduate

or law school training, and four employers in the 11 years between college and starting to work for the

AIGCS.

2

To be consistent with the majority opinion, we will likewise refer throughout the opinion to the

American International Adjustment Company as "AIGCS."

3

See Ptf's Ex. 48 to Spann Dep. II at D000065 (Chapman job application); see also R7-79-Ex. E-2 at

¶ 3. All depositions were filed as part of the summary judgment record. See R5-71; R6-76; R9-84; see

also En Banc Brief of Defendants-Appellees at 1 n. 1.

4

A number of the applicants, including Chapman, had been initially hired by AIGCS and then were

transferred to AI Transport as part of a restructuring.

5

See R7-79-Ex. E-3-4 at WW 3-7; Ptf's Ex. 30 to Zaleski Dep. (EEOC Position Stmt., Attach. 1) at

2; Ptf's Ex. 48 to Spann Dep. at D000065-D000068 (Chapman's job application and resume submitted to

Defendants in 1988).

6

See R7-79-Ex. E-2-3 at WW 4-5.

7

See Jones Dep. at 21-26.

8

See Jones Dep. at 33-36.

Duane Sevillian: Sevillian graduated with a bachelor's degree from Johnson C. Smith College; he

received a J.D. from Atlanta Law School (an unaccredited law school) in 1980. After graduating from law

school, Sevillian worked for: New York Life (1980 to 1981); Safeco (1981 to 1988); and AIGCS/AI

Transport (January 1989 to present).9 Thus, Jones had a bachelor's degree, a J.D. from an unaccredited law

school, and two employers in the eight years between law school and starting to work for AIGCS.

John Smith: Smith received an associate's degree from Middle Georgia College in 1962, a bachelor's

degree from the University of Georgia in 1965, and a Masters in Science & Administration from Georgia

College in 1976.10 Smith's employment history included: Southeastern Underwriters from June 1965 to

February 1966 (as an inspection engineer); the United States Army from February 1966 to February 1968;

Crawford & Company from March 1968 to March 1971; Georgia Farm Bureau Insurance Company from

March 1971 to March 1976; Prudential Insurance Company from March 1976 to March 1977; Government

Employees Insurance Company from June 1977 to June 1979; Dairyland or Sentry Insurance Company from

June 1979 to June 1980; the Moore Group from June 1980 to January 1986; Gulf Insurance Co. from

January 1986 to December 27, 1988; and AI Transport starting on December 27, 1988.11 Thus, Smith had

associate's, bachelor's, and graduate degrees, no law school training, and seven employers in the twenty years

between his discharge from the army and beginning to work for AIGCS.

Graham Wiggins: Wiggins graduated from Tuskegee Institute with a bachelor's degree and attended

Emory Law School for one year before leaving without graduating.12 After leaving law school, Wiggins

worked at Delta Airlines as a fueling agent, starting in Fall 1969, for 6 months; his insurance career included

working at Allstate Insurance Co. from February 1970 to 1974, Maryland Casualty Co. from 1974 to 1978,

and Gulf Insurance Co. from 1978 to 1988,before beginning to work at AI Transport in 1988.13 Thus,

Wiggins had a bachelor's degree, one year of law school, and three employers in the 18 years of his insurance

career before beginning to work for AIGCS.

9

See Sevillian Dep. at 11-17.

10

See Smith Dep. at 14-15.

11

See Smith Dep. at 17-31.

12

See Wiggins Dep. at 15-16.

13

See Wiggins Dep. at 16-22, 26.

In 1992, the applicants applied to transfer from AI Transport to sister company AIGCS. After

applying, the applicants were each interviewed by both Jim Wogsland and Ward Turnquist for the position

of casualty claims manager. After the interviews, Chapman was informed that he had not been hired for the

casualty claims manager position, while the other four men were hired for a variety of positions: Jones for

a complex director position (in March 1993); Sevillian for a fast track manager position (in October 1992);

Smith for a casualty claims specialist position (in October 1992); and Wiggins for the casualty claims

manager position (in October 1992).14

II. Analysis

A. Summary Judgment Standard of Review

Reviewing the briefs in this case and listening to the oral arguments, I was struck by the sense that

defense counsel appeared to be arguing from a different procedural posture than the one actually at issue in

this case. With a large number of material issues of fact, defense counsel often hypothesized—making

assumptions or raising inferences from the evidence to fill gaps in the record.15 Counsel's hypothesizing may

have been appropriate and even persuasive in a case where he was arguing against summary judgment granted

in Chapman's favor or was seeking to preserve a trial verdict in Defendants' favor, because the standard of

review in those situations would require us to make all reasonable inferences in favor of Defendants.16

However, because this case involves a grant of summary judgment awarded to Defendants, we are obliged

to draw all reasonable inferences in favor of Chapman. See, e.g., Taylor v. Runyon, 175 F.3d 861, 866 (11th

14

See Jones Dep. at 116-22; Sevillian Dep. at 51; Smith Dep. at 85-86; Wiggins Dep. at 67-70.

15

As I discuss in more detail, these hypotheses include: (1) defining the term "recent"; (2) justifying

why Wogsland reviewed Smith's performance evaluations but not Chapman's; (3) assuming that

Chapman must have been "mistaken" when he said that he thought that he interviewed with Wogsland

before interview with Turnquist because Turnquist was just a "screening interview"; (4) claiming that

Wogsland had viewed Sevillian's interview as being better than had Turnquist; and (5) claiming that

either Wogsland or Turnquist considered Jones, Sevillian, or Smith's job history as stable or as better than

Chapman's.

16

See, e.g., Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988) ("A court evaluating a

summary judgment motion must view the evidence in the light most favorable to the non-movant. If a

reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if

that inference introduces a genuine issue of material fact, then the court should not grant the summary

judgment motion. An appellate court applies this same legal standard when a party appeals an adverse

summary judgment ruling.") (citations omitted); Morro v. City of Birmingham, 117 F.3d 508, 513 (11th

Cir.1997) ("In reviewing the sufficiency of the evidence to support the jury's verdict, we draw all

reasonable inferences in favor of the nonmovant, in order to determine 'whether or not reasonable jurors

could have concluded as this jury did based on the evidence presented.' ") (citations omitted).

Cir.1999).17

B. Standards for Assessing a Summary Judgment Motion in Employment Discrimination Case

Like the majority, I assume that the burden-shifting test first announced in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to discrimination cases filed under the

ADEA. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.1999); see also

Reeves v. Sanderson Plumbing Products, Inc., --- U.S. ----, 120 S.Ct. 2097, 2105, --- L.Ed.2d ---- (2000).

Applying that familiar test to this case, Chapman is required to establish as his prima facie case that he was

a member of the class protected by the ADEA (i.e., was at least 40 years old at the time that he was denied

promotion, see 29 U.S.C. § 631(a)), that he applied for one or more positions for which he was qualified, that

he did not receive any of the positions for which he applied, and that substantially younger employees who

were equally or less qualified than Chapman received the positions.18 "Establishment of the prima facie case

in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

Once Chapman establishes his prima facie case, the burden then shifts to Defendants to produce at least one

17

As a matter of description, the majority is correct in stating that courts in this circuit are not

reluctant to grant summary judgment in employment discrimination cases. Indeed, because of the

burden-shifting test applied in such cases, it would not be unreasonable to surmise that a significant

majority of employment discrimination cases end with summary judgment granted to the defendants.

That said, I emphasize a limit on the majority's statement as a prescriptive matter. It is true that, where an

employer meets its burden of producing at least one justification that is both legitimate and

nondiscriminatory and the employee fails to produce evidence tending to demonstrate pretext, then courts

should not only be open to granting summary judgment, but, instead, must grant summary judgment as a

matter of law. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (11th Cir.1998). However,

where the employee produces evidence tending to demonstrate pretext, courts should proceed cautiously

before granting summary judgment to the employer. Like the majority, see majority op. at 119 n. 11, I

recognize that the Supreme Court has rejected a per se rule stating that a showing of a prima facie case

and of pretext is sufficient to survive a motion for judgment as a matter of law (and, inferentially, a

motion for summary judgment), see Reeves v. Sanderson Plumbing Products, Inc., --- U.S. ----, 120 S.Ct.

2097, 2109, 147 L.Ed.2d 105 (2000), but the Supreme Court also admonished that, in many cases, "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,"

id. Before granting summary judgment to an employer where the employee has offered evidence tending

to establish pretext, courts must carefully balance a "number of factors," including at least the following:

"the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's

explanation is false, and any other evidence that supports the employer's case and that properly may be

considered on a motion for judgment as a law." Id. Like the Supreme Court, I see no need to discuss

further the rules for when a prima facie case, plus pretext, is insufficient to survive a motion for judgment

as a matter of law because this case does not present that situation.

18

See Bogle v. Orange County Board of County Comm'rs, 162 F.3d 653, 656-57 (11th Cir.1998);

Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.1997) (listing elements of prima facie

case for discriminatory failure to promote claim).

"legitimate, nondiscriminatory reason" for not selecting Chapman for each of the positions for which he

applied. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If Defendants fail to produce a legitimate,

nondiscriminatory reason for failing to hire Chapman, then "the court must enter judgment for the plaintiff

because no issue of fact remains in the case." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. If Defendants

produce admissible evidence setting forth at least one legitimate, nondiscriminatory reason for their rejection

of Chapman, the burden shifts back to Chapman to proffer evidence tending to show that the reasons offered

by Defendants were pretextual, i.e., "not the true reason[s] for the employment decision." Id. at 255-56, 101

S.Ct. at 1094-95. To this point, the majority and I agree on the substance of the law. However, I must clarify

several issues.

1. The Prima Facie Case and the Four Younger Applicants

At no time at summary judgment or on appeal have Defendants challenged Chapman's prima facie

case as to any of the four positions given to Jones, Sevillian, Smith, and Wiggins. Indeed, at summary

judgment, no section of either Defendants' statements of undisputed material facts or their memoranda in

support of summary judgment even addressed Chapman's prima facie case as to the applications for

employment with AIGCS.19 Instead, Defendants addressed only the second of the three McDonnell Douglas

steps, i.e., by offering justifications for hiring Wiggins instead of Chapman.20 However, as to Jones, Sevillian,

and Smith, Defendants only stated that Chapman "was not considered for the positions filled by Sevillian,

Jones, and Smith"—but offered no justification for their decision not to consider him for those positions.21

It is axiomatic that an argument not raised before the trial court or on appeal has been waived. See Campaign

for a Prosperous Georgia v. SEC, 149 F.3d 1282, 1287 (11th Cir.1998) (holding that issue not raised on

appeal is abandoned); Depree v. Thomas, 946 F.2d 784, 793 (11th Cir.1991) (holding that issue not raised

before district court is waived). Accordingly, like the majority, I will consider the prima facie case as to each

19

See R6-72, R6-73.

20

See R6-72 (Stmt. of Undisputed Facts) at 3, 5-6.

21

R6-72 (Stmt. of Undisputed Facts) at 2-4. As discussed below, this justification is not only

insufficient but is actually evidence of discrimination. Additionally, a review of the passage of deposition

cited by Defendants to support their claim that they did not even consider Chapman for positions other

than the claims casualty manager position shows that Wogsland, based on his knowledge of Chapman's

resume and of the positions available at the time of the 1992 interviews, acknowledged that it was

possible that Chapman was qualified for a number of positions open at that time, including, without

limitation, the fast track claims manager position. See R5-70-Ex. I (Wogsland Dep.) at 186-90.

of the four employees to be undisputed and will analyze the justifications and pretext showings as to each of

the four employees.

2. Subjectivity and the Legitimacy of Nondiscriminatory Reasons

At the outset, I must emphasize what my argument does and does not embrace. By suggesting the

position that subjective reasons are per se illegitimate and then countering it, the majority erects a straw man

and then topples it. That position, however, is neither one which I advocate nor one which I need to advocate

in order to justify the conclusion that summary judgment was improvidently granted in this case. Admittedly,

it would be difficult to justify a claim that subjective reasons are always inappropriate, my true position,

instead, rests upon two venerable principles adopted in case after case by this circuit, as well as by many

others.

First, courts have examined and should continue to examine subjective reasons with higher scrutiny

than objective reasons. See Carter v. Three Springs Residential Treatment, 132 F.3d 635, 644 (11th Cir.1998)

(rejecting subjective criteria that "are too subjective to allow for any meaningful comparison between"

applicants and observing that such subjective criteria "cannot be relied upon by an employer seeking to defeat

the plaintiff's prima facie case by showing that the plaintiff is less qualified than the applicant chosen for the

promotion").22 Notwithstanding the majority's disagreement with this principle, its wide acceptance rests

upon sound logic. Subjective reasons, by their very nature, often serve to mask discrimination.23 See Roberts

v. Gadsden Mem'l Hosp., 835 F.2d 793, 798 (11th Cir.1988) ("[I]nformal, secretive and subjective hiring or

promotion decision processes tend to facilitate the consideration of impermissible criteria."); Miles v. M.N.C.

Corp., 750 F.2d 867, 871 (11th Cir.1985) ("This circuit has frequently noted ... that subjective evaluations

involving white supervisors provide a ready mechanism for racial discrimination. This is because the

22

See also Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir.1994) (Carnes, J.) (stating in case where

the employer "seeks individuals with managerial, business and interpersonal skills and prefers people

with prior experience in the petroleum industry" that "[w]e view these subjective and ad hoc criteria with

greater scrutiny than we would if BP strictly followed written criteria."); Fowler v. Blue Bell, Inc., 737

F.2d 1007, 1010-11 (11th Cir.1984) ("[T]he nature of the defendant's selection process and of the reasons

that he offers affects the weight of his burden. Where the reasons that the employer offers for rejection

are based on purely subjective factors, the defendant's burden is greater.").

23

As I discuss below, this tendency is exacerbated where the subjective reason corresponds with

discriminatory stereotypes.

supervisor is left free to indulge a preference, if he has one, for one race of workers over another.").24 Thus,

"[w]hile there is nothing inherently wrong with allowing decision makers to base decisions on subjective

criteria," it is reasonable to scrutinize strictly decisions based on such subjective criteria, which " 'provide a

ready mechanism' " for discrimination. Carter, 132 F.3d at 644 (quoting Miles, 750 F.2d at 871).

The second principle is that subjective reasons, like any other reason offered pursuant to the

McDonnell Douglas test, must be legitimate, as well as nondiscriminatory. In this context, "legitimate" does

not refer to the moral value of the nondiscriminatory reason, for "a defendant may ... [refuse to promote] an

employee for a good or bad reason without violating federal law." Damon, 196 F.3d at 1361. Rather,

"legitimate" refers to the requirements in Burdine that "[t]he explanation provided must be legally sufficient

to justify a judgment for the defendant" and that the defendant must "frame the factual issue with sufficient

clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." 450 U.S. at 255-56,

101 S.Ct. at 1094-95.25 In judging whether a subjective reason is legitimate, we have required that it be

"capable of objective evaluation." Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1500 (11th Cir.1985).

See also Miles, 750 F.2d at 871 ("[S]ubjective and vague criteria may be insufficient reasons given by an

employer for its failure to [ ]hire because such criteria do not allow a reasonable opportunity for rebuttal.").26

24

See also Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C.Cir.1998) (en banc )

("Particularly in cases where a jury could reasonably find that the plaintiff was otherwise significantly

better qualified than the successful applicant, an employer's asserted strong reliance on subjective feelings

about the candidates may mask discrimination."); McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129

(8th Cir.1998); Thomas v. Denny's, Inc., 111 F.3d 1506, 1510 (10th Cir.1997); Lilly v. Harris-Teeter

Supermarket, 842 F.2d 1496, 1506 (4th Cir.1988); Sweeney v. Research Found. of SUNY, 711 F.2d 1179,

1185 (2d Cir.1983).

25

As I discuss throughout the next section, defense counsel has offered many hypotheses not

supported by admissible evidence. In addition to requiring that the nondiscriminatory reason be

established "through the introduction of admissible evidence," Burdine also makes clear that "[a]n

articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden

merely though an answer to the complaint or by argument of counsel," 450 U.S. at 255 & n. 9, 101 S.Ct.

at 1094 & n. 9 (emphasis added).

26

Interestingly, it was recently suggested that we should reject a sexual harassment plaintiff's

subjective perception of her supervisor's conduct, partly because of:

the problem of perception prevarication. An employee who makes up or exaggerates a

description of objective conduct runs a risk of being found out that is greater than the risk

run by an employee who is attempting to make a case based upon her subjective

impressions. There is more temptation to exaggerate, to "puff," to put subjective spin on

the facts. A plaintiff describing her subjective impressions can say that while her

supervisor's conduct might have appeared neutral to some, she felt, believed—just

knew—it was lecherous.

Thus, "the mere statement that the [employer] selected the 'best qualified' would be insufficient to satisfy the

Burdine requirements" because such a statement "leaves no opportunity for the employee to rebut the given

reason as a pretext," while a claim that the person selected was better qualified by virtue of his or her

"seniority, length of service in the same position, personal characteristics, general education, technical

training, experience in comparable work or any combination of them" may be sufficient to satisfy the Burdine

requirements. Increase Minority Participation by Affirmative Change Today of Northwest Fla., Inc. v.

Firestone, 893 F.2d 1189, 1194 (11th Cir.1990).27

In this case, my general concerns with subjective reasons are exacerbated by the fact that Defendants'

proffered reasons correspond strongly with the very stereotypes that the ADEA was designed to combat. A

stereotype of older persons is that they are not "aggressive," such that employers frequently identify younger

workers as "aggressive" and, thus, more desirable than older workers. See, e.g., Damon, 196 F.3d at 1362

("Soto's remark to Kanafani's younger successor, D'Angelo, right after Kanafani was terminated, that Soto

wanted 'aggressive, young men' like himself to be promoted is highly suggestive circumstantial evidence from

which a jury could infer discriminatory animus.... The comment also arguably suggests that Soto had an

ageist preference for young managers."; reversing grant of summary judgment in favor of employer).28 It

Mendoza v. Borden, Inc., 195 F.3d 1238, 1256 (11th Cir.1999) (en banc ) (Carnes, J., conc.), cert.

denied, --- U.S. ----, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000). This opinion also noted the

difficulty that a supervisor would have "to rebut testimony about those perceptions." Id. I am

incapable of finding any reasoned justification for rejecting wholesale the subjective perceptions

of sexual harassment plaintiffs, while rendering unassailable the equally subjective perceptions of

age discrimination defendants. At oral argument, defense counsel attempted to distinguish

between the two situations by noting that the burden of persuasion remains with the plaintiff

throughout all employment discrimination cases. As true as this statement is, it does not remedy

my quandary, for the burden of production, as shifted to the defendants under McDonnell

Douglas, still requires the defendants to proffer a legally sufficient reason. Burdine, 450 U.S. at

255-56, 101 S.Ct. at 1094-95. The reasoning offered in the Mendoza concurrence offers one

explanation of why subjective perceptions should not be considered legally sufficient unless

based on objective evidence.

27

See also Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 161 (2d Cir.1981) (concluding

that reason offered was legally sufficient where it could be "objectively evaluated" and noting that "[t]he

fact that satisfaction of job performance criteria is judged by an employee's superiors does not necessarily

warrant the inference that the evaluations are subjective").

28

See also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1553 (11th Cir.1988) (reversing judgment

notwithstanding the verdict granted to employer where manager had made various statements indicating

that he "believed that the older employees lacked an aggressive approach to business, that they were part

of the 'cancer' and the 'malaise' that existed at the Sarasota plant, that the older employees were 'set in

their ways,' that 'they were the reason that the business wasn't going forward,' and that 'they would have to

be replaced with younger people' in order for the company's business to progress"); Warter v. Bergen-

Brunswig Corp., 162 F.3d 1171 (table) (9th Cir.1998) (finding that comments "that the company wanted

to hire 'fresh, young blood,' and 'young, aggressive, recent college graduates' ... are in themselves

is interesting how often in the case law the words "young" and "aggressive" are linked together by defendant

employers. The very frequency of this conjunction supports the conclusion that "aggressive" is a sign of "age

bias, i.e., ... the assumption that older employees lack the aggressive and competitive disposition likely to be

possessed by younger employees...." Woroski v. Nashua Corp., 31 F.3d 105, 109 n. 2 (2d Cir.1994). Where

courts have found that summary judgment for the employer is appropriate in the face of such comments, their

conclusion was more likely to be in spite of the comments, rather than because of the comments. See, e.g.,

id. (noting that some of the other cited comments demonstrated neutral concerns). This is because of the

purposes behind the ADEA:

It is the very essence of age discrimination for an older employee to be fired because the employer

believes that productivity and competence decline with old age.... Congress' promulgation of the

ADEA was prompted by its concern that older workers were being deprived of employment on the

basis of inaccurate and stigmatizing stereotypes.

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (citation

omitted). Accordingly, rather than accepting wholesale the claim that Chapman did not appear "aggressive"

as an adequate justification for rejecting his application for employment, we should, as with gender

discrimination, be suspicious of employer's evaluations of a given employee's level of aggressiveness.29 This

sufficient to support a jury verdict") (unpublished opinion cited solely for persuasive value); Danzer v.

Norden Systems, Inc., 151 F.3d 50, 53 (2d Cir.1998) (reversing grant of summary judgment to employer

where supervisor requested chart of employees' ages, called older workers "old fogies" in Yiddish, and

commented on the plaintiff's evaluation that plaintiff lacked "aggressive initiative to get new business");

Boehms v. Crowell, 139 F.3d 452, 457 (5th Cir.1998) (affirming district court's finding of age

discrimination; rejecting defendant's claim "that Boehm's' nonselection [for promotion] was due to his

negative 'approach to organizational change' and his lack of an 'aggressive and proactive leadership style'

" and defendant's argument "that its business judgment in this regard should not be disturbed");

Washington v. Honeywell, Inc., 94 F.3d 654 (table) (9th Cir.1996) (reversing grant of summary judgment

to employer where "a manager allegedly told Washington that Honeywell 'liked to promote aggressive

younger people' "; stating that the manager's alleged statement "went to the heart of the claim")

(unpublished opinion cited solely for persuasive value); Meyer v. Riegel Products Corp., 720 F.2d 303,

306 (3d Cir.1983) (reversing grant of summary judgment based on timeliness where employer made a

belated explanation that the plaintiff was not hired because the employer "had needed someone

'aggressive,' someone 'vigorous,' someone with a background that could handle chemical problems at

some of the mills.' ").

29

See, e.g., Thomas v. Eastman Kodak Co., 183 F.3d 38, 60-61 (1st Cir.1999) (" 'In the specific

context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be

aggressive, or that she must not be, has acted on the basis of gender.' ... The concept of 'stereotyping'

includes not only simple beliefs such as 'women are not aggressive' but also a host of more subtle

cognitive phenomena which can skew perceptions and judgments.") (quoting Price Waterhouse v.

Hopkins, 490 U.S. 228, 249, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded by statute on other

grounds as stated in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229

(1994)); Pivirotto v. Innovative Sys., 191 F.3d 344, 355 (3d Cir.1999) (citing Price Waterhouse for

proposition that "an employer may act on gender-based stereotypes, firing women it perceives as not

feminine enough (or as too feminine), or discharging women who are too aggressive while not doing the

same to male employees"); Hopkins v. Price Waterhouse, 920 F.2d 967, 973 n. 3 (D.C.Cir.1990)

is no less true in the area of age discrimination. Cf. Aka, 156 F.3d at 1298 ("[W]e cannot altogether ignore

the fact that outward manifestations of 'enthusiasm' are just the kind of traits that advancing age and

heart-related disability may tend to diminish.").

Applying these principles, I come, not to the conclusion that subjective reasons are per se illegitimate,

but to the conclusion that subjective reasons, like other reasons offered pursuant to Burdine, must be given

weight according to their legal sufficiency. Some subjective reasons, those which cannot be objectively

evaluated and/or are vague, should be accorded no weight. Other subjective reasons, such as those that are

premised on stereotypes, should be scrutinized strictly.30 Subjective reasons, like objective reasons, should

be evaluated based on the evidence offered in their support and the context in which those reasons arose. For

example, courts have been more willing to accept subjective reasons where specific criteria existed prior to

the adverse employment action. See, e.g., Carter, 132 F.3d at 643 (reversing summary judgment in part

because of poorly drafted criteria); Miles, 750 F.2d at 871-72 (noting that lack of preexisting criteria tends

to weaken the value of a subjective evaluation). Similarly, courts have been more willing to accept subjective

reasons where evidence preexisting the litigation supports those reasons. See, e.g., Aka, 156 F.3d at 1298

(noting that lack of note on interview summary regarding plaintiff's alleged lack of enthusiasm weakened

subjective evaluation). Thus, a subjective reason that is clear and specific, is capable of objective evaluation,

is not premised on a stereotype, is consistent with clear criteria that preexisted the adverse employment action,

and was documented at the time of the adverse employment action and before litigation is initiated should

(quoting with approval Radford, Sex Stereotyping and the Promotion of Women to Positions of Power, 41

Hastings L.J. 471, 533 (1990): "Obviously, in cases such as Hopkins, in which the legitimate reason

articulated by the employer was of such a subjective nature as to itself invite stereotyping, the employer

bears the additional burden of showing that the stereotyped attitudes did not so pervade the subjective

evaluation as to destroy the articulated reason's legitimacy. In cases in which such subjective factors as

'interpersonal skills' are offered as the determining cause for the negative employment decision, Justice

Brennan's mandate in Hopkins [490 U.S. at 252, 109 S.Ct. at 1791] that 'the employer should be able to

present some objective evidence as to its probable decision in the absence of an impermissible motive'

should be adopted.' ").

30

While the majority expresses concern that the approach outlined by me and adopted by other courts

would stymie employers' attempts to hire people with desirable, but potentially stereotypical, traits, this

approach, in reality, would not have that result. I do not deny that some characteristics, such as physical

strength, may simultaneously be both "valuable and much sought after" traits and consistent with

stereotypes, nor do I seek to preclude employers from attempting to hire employees with such traits.

Majority Op. at 131. Where, however, such traits are used as criteria, it is especially important that an

employer's subjective perception of an applicant with regard to such traits be supported by objective

evidence. For instance, with the majority's example of physical strength, sheer reliance on gender

stereotypes would be insufficient, but the employer would be able to rely on perceptions grounded on

objective evidence, such as weight-lifting tests.

be accorded more weight than a subjective reason that does not meet all of those factors.

3. Distinguishing Between the Business Judgment Rule and Challenges to the Credibility of Proffered

Nondiscriminatory Reasons

The majority, like Defendants, contends that a number of the arguments raised by Chapman, e.g.,

regarding the job instability of other candidates over their entire careers, contravene a long line of cases that

protect an employer's business judgment from being second-guessed by judges or by juries.31 This argument

miscomprehends Chapman's claims, as well as the points made in this dissent. While the business judgment

rule protects the sincere employer against second-guessing of the reasonableness of its judgments, it does not

protect the employer against attacks on its credibility. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,

1470 (11th Cir.1991) ("The inquiry of the ADEA is limited to whether [the defendant's decision makers]

believed that Elrod was guilty of harassment, and if so, whether this belief was the reason behind Elrod's

discharge...."). A showing that Wogsland and Turnquist acted inconsistently would tend to establish that they

lack credibility. Cf. Williams v. City of Valdosta, 689 F.2d 964, 975 (11th Cir.1982) (reversing grant of new

trial to employer in First Amendment demotion case despite employer's legitimate justification that employee

had not passed a promotional exam where the employer's "adherence to its formal promotional policy was

inconsistent and arbitrary at best" because "[t]his inconsistency supports the conclusion that resort to the

examination requirement was a pretext for singling out [the plaintiff] for unfavorable treatment.").

Accordingly, while the business judgment rule protects Defendants against claims that their reasons are

imprudent, it must not be used to shield Defendants against colorable claims that their reasons are

non-credible.

4. Pretext Where the Defendant Offers Multiple Reasons for its Actions

We noted in Combs that "[p]rovided that the record evidence would permit a reasonable factfinder

to reject each of [the employer's] proffered explanations for its decision, the case properly was submitted to

the jury for a decision on the ultimate question of intentional discrimination." 106 F.3d at 1539 (emphasis

added). As a general rule, I agree with the concept that, where an employer offers multiple legitimate,

nondiscriminatory reasons for its challenged action, the employee must proffer evidence that shows pretext

31

See, e.g., Damon, 196 F.3d at 1361("We are not in the business of adjudging whether employment

decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus

motivates a challenged employment decision."); Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1501

(11th Cir.1991) ("[W]e do 'not sit as a super-personnel department that reexamines an entity's business

decisions.' ") (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986)).

as to each of the proffered reasons. However, I also agree with other circuits that there are limits to this

general rule. The Third Circuit, addressing this question, stated:

We do not hold that, to avoid summary judgment, the plaintiff must cast doubt on each proffered

reason in a vacuum. If the defendant proffers a bagful of legitimate reasons, and the plaintiff

manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit

the remainder. That is because the factfinder's rejection of some of the defendant's proffered reasons

may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve

the remaining proffered reasons, even if no evidence undermining those remaining rationales in

particular is available.

Fuentes v. Perskie, 32 F.3d 759, 764-65 n. 7 (3d Cir.1994); see also Narin v. Lower Merion Sch. Dist., 206

F.3d 323, 332-34 (3d Cir.2000) (discussing Fuentes ). Similarly, the Seventh Circuit has observed that

under the established law of this circuit, the existence of a genuine issue of triable fact with respect

to some of the reasons for discharge proffered by the employer is of no consequence as long as at

least one reason is uncontested.... [H]owever, we have indicated that this analysis ought not be

followed when the grounds that are offered are so intertwined or the pretextual ground for one of

them so strong that a reasonable jury, hearing all the proffered grounds, could find for the plaintiff

on the discrimination issue.

Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 399 (7th Cir.1998) (citing Wolf v. Buss (America)

Inc., 77 F.3d 914, 920 (7th Cir.1996) and Russell v. Acme-Evans Co., 51 F.3d 64, 69-70 (7th Cir.1995)). The

Sixth Circuit, citing the Seventh Circuit's Russell decision, has observed "that an employer's strategy of

simply tossing out a number of reasons to support its employment action in the hope that one of them will

'stick' could easily backfire" such that "a multitude of suspicious explanations may itself suggest that the

employer's investigatory process was so questionable that any application of the 'honest belief' rule is

inappropriate." Smith v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir.1998).

I find persuasive these cases and the reasoning applied in them. While the general rule requiring an

employment discrimination plaintiff to demonstrate pretext as to each and every legitimate, nondiscriminatory

reason offered by the employer is reasonable in the majority of cases, that general rule fails when applied to

a small percentage of cases.32 Demonstrating pretext by "[c]asting doubt on an employer's asserted reasons

for an adverse employment action" is an indirect means of demonstrating "that the employer acted with the

forbidden animus." Taylor, 175 F.3d at 867; see also Wolf, 77 F.3d at 919 ("Pretext means more than a

32

Indeed, as the various cases discussing this exception to the general rule illustrate, the percentage of

cases affected by the exception is quite small. See Narin, 206 F.3d at 332-34 (holding that exception did

not apply under the facts presented in that case); Smith, 155 F.3d at 809 (same); Adreani, 154 F.3d at

399 (same); Wolf, 77 F.3d at 923 (same); Russell, 51 F.3d at 70 (same). But see Aka, 156 F.3d at 1298

(holding that, where "a jury could find that Aka was in all other respects markedly better qualified for the

job" for which he had applied, that the interviewer's claims that she subjectively viewed the applicant's

interview as poor should be submitted to the jury for a credibility assessment).

mistake on the part of the employer; pretext 'means a lie, specifically a phony reason for some action' ")

(quoting Russell, 51 F.3d at 68); Black's Law Dictionary 1206 (7th ed.1999) (defining "pretext" as "[a] false

or weak reason or motive advanced to hide the actual or strong reason or motive"). The reason why we have

the general rule requiring an employment discrimination plaintiff to dispute each proffered reason is that,

where at least one independent justification for the challenged employment action remains unscathed after

the plaintiff attempts to establish pretext, a jury could not presume by the failure of another independent

justification that the real motivation was discriminatory animus. See Russell, 51 F.3d at 69. This accords

well with common sense, for, if the inference of discriminatory animus arises from the failure of all legitimate

reasons offered by the defendant, then the inference is inappropriate where one or more legitimate reasons

remain unrebutted. However, common sense also counsels that there are some situations where the failure

of one proffered reason may affect the reliability of other proffered reasons. Like the Seventh Circuit, I

believe that logic tells us that, where two legitimate reasons proffered by an employer are intertwined, the

employee's showing of pretext as to one of those reasons may (but not always will)33 sufficiently weaken the

other reason so as to preclude a grant of summary judgment to the employer. See Russell, 51 F.3d at 70.

Similarly, it is reasonable, where the showing of pretext as to one reason is sufficiently strong as to permit

a jury to find that the employer (or its decisionmaker) lacks all credibility, to conclude that summary

judgment is inappropriate—even without a specific showing of pretext as to another reason. See id. I

likewise find persuasive the reasoning of the Third and Sixth Circuits where they find that the proffering of

a large number of arguably pretextual reasons may cast sufficient doubt on the remainder of the proffered

reasons, such that summary judgment should be denied. See Smith, 155 F.3d at 809; Fuentes, 32 F.3d at 764

n. 7. This is but common sense: if a person is shown to be a liar in an outrageous manner or is shown to have

lied about a number of issues, the inference that the person is non-credible, and should not be believed as to

other issues, is a reasonable one.

The D.C. Circuit, sitting en banc, has suggested a fourth exception to the general rule: where an

employer offers an objective reason for its employment action (e.g., that the plaintiff was less qualified than

the person hired instead of the plaintiff) and a subjective reason (e.g., that the plaintiff failed to show

"enthusiasm" or "interest"), the fact that the plaintiff has offered evidence establishing pretext as to the

33

This would require a factual analysis as to how intertwined the reasons were. See, e.g., Adreani,

154 F.3d at 399 (analyzing whether the reasons were sufficiently intertwined to permit application of the

"so intertwined" exception to the rule that the plaintiff must show pretext as to each separate reason).

objective reason creates a question for the jury as to the disputed34 subjective assessments. See Aka, 156 F.3d

at 1298-99. This, like the other exceptions suggested by the Third, Sixth, and Seventh Circuits, accords well

with common sense. When a reason is subjective, its validity depends entirely on the credibility of the

witness offering the reason. Where that credibility has been compromised, a jury could reasonably conclude

that the subjective reason offered by the witness is not credible or, in other words, that the subjective reason

"was untrue—indeed, a lie." Id.

Additionally, I am concerned that, if we follow the suggestion of Defendants and refuse to adopt

these reasonable exceptions, we will have created a blueprint for evasion. This hoary term is perhaps

overused, but it is in this case an appropriate one. If a defendant can offer with impunity a slew of

nondiscriminatory reasons in a summary judgment motion, with the knowledge that a strong showing of

pretextuality as to 99% of them would be irrelevant as long as but one survives unscathed, then employment

discrimination cases will be, for all practical purposes, precluded. This problem is exacerbated where the one

reason that survives the onslaught is a purely subjective one. If we do not apply the reasonable exceptions

adopted by the other circuits, employers will be encouraged to throw their reasons like mud at a wall—with

the certainty that one of those reasons will stick because of the unlikelihood of the plaintiff being able to

prove that the purely subjective perception of the decisionmaker was dishonest without referring to the proof

that other reasons offered were pretextual.

For all of the above reasons, I would adopt the Third, Sixth, Seventh, and D.C. Circuits' exceptions

to the general rule of requiring a plaintiff to rebut each proffered reason. In addition to their internal logic,

34

It is true that Aka, unlike Chapman, specifically disputed the subjective assessment of his

interviewer. See Aka, 156 F.3d at 1298 ("Aka claims that he, too, expressed enthusiasm at his

interview...."). I believe that this is a distinction without a difference. If the only evidence in support of

Chapman's claim was that he had said that his interviews went well, that he was aggressive during his

interviews, and that he offered sharp and concise answers, it seems unlikely that a majority of judges on

this court would conclude that he had raised a genuine dispute regarding a material fact. Indeed,

subjective perceptions of an employee, without more, are insufficient to survive summary judgment. See,

e.g., Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.1997) (adopting reasoning of district court

summary judgment order); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000); Dey v. Colt

Constr. & Dev. Co., 28 F.3d 1446, 1460 (7th Cir.1994); Smith v. Flax, 618 F.2d 1062, 1067 (4th

Cir.1980) (stating that the employee's "perception of himself ... is not relevant. It is the perception of the

decision maker which is relevant"). Indeed, in Aka, the dissent challenged Aka's disputation of the

subjective assessment on the ground that he had "offered no evidence that he was more enthusiastic than

[the successful applicant] Valenzuela at the interview." 156 F.3d at 1298 n. 19. Even more to the point,

Defendants raised this same ground at summary judgment by stating that "Plaintiff's good opinion of his

qualifications is not sufficient to defeat summary judgment." R9-90-Ex. A at 11. Because the only real

means to challenging Wogsland and Turnquist's subjective assessments of the interview is to challenge

their credibility, I conclude that it would not only be insufficient for Chapman to counter their claims with

his own subjective assessments, but that it is also futile and, thus, unnecessary for him to do so.

these exceptions are consistent with the Supreme Court's admonition that the McDonnell Douglas test "was

'never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate

the evidence in light of common experience as it bears on the critical question of discrimination.' " United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403

(1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957

(1978)).

5. Multiple Ways of Disputing Nondiscriminatory Reasons

Just as "there is more than one way to skin a cat," there is also more than one way for a plaintiff to

challenge a defendant's proffered nondiscriminatory reasons. See Reeves, 120 S.Ct. at 2108 ("Proof 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."). As the Supreme Court stated in

Burdine, once a defendant proffers legitimate, nondiscriminatory reasons, a plaintiff may dispute those

reasons by showing "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." 450 U.S. at 256, 101 S.Ct. at 1095. I mention

this principle not because I believe that the majority disputes it, but because Chapman's attack on Defendants'

proffered reasons involves not only challenges to the credibility of the reasons offered, but also a showing

of disparate treatment that is relevant to the ultimate question of whether a discriminatory reason more likely

motivated Defendants in their decision not to hire Chapman than did the proffered reasons.

6. Conclusion

In conclusion, the majority and I approach this case from a similar, yet not identical, perspective.

Applying these principles to the summary judgment record, I find a large number of disputed facts and factual

claims not supported by the record. Accordingly, I turn to a close review of the summary judgment record.

C. Gaps and Inconsistencies in the Record

1. "Recent"

Turning first to the claim that Chapman was rejected because of his "recent"35 history of job skipping,

35

The majority asserts that the actual "job history" reason for Defendants' decision not to hire

Chapman was his lack of job stability during a "specified" time period—not the recency of that period.

See, especially, Majority Op. at 128, n. 24. This conclusion fails for a number of reasons. First,

Wogsland stated in his deposition that one of the reasons supporting his decision not to hire Chapman was

"the lack of recent stability in job positions prior to joining AI Transport." R7-79-Ex. H (Wogsland

I note that "recent" is not a clear term with a definite timeframe attached. In arguing that we should defer to

the definition used by Wogsland in evaluating Chapman, Defendants allude to a 10-year timeframe before

the 1992 interviews—but, of necessity, their allusions are without record citations because record citations

to a definition do not exist.36 An exhaustive search of the record shows that neither Wogsland nor Turnquist

ever defined "recent." Thus, when asked at oral argument if the record included a definition of "recent,"

defense counsel could only argue that "recent" implicitly was "the period when plaintiff switched jobs." Not

Dep.) at 134 (emphasis added). This statement, which the majority attempts to gloss over, see Majority

Op. at 128, n. 24, is not only part of the summary judgment record, but it is a statement primarily relied

upon by Defendants on appeal. See Brief of Defendants/Appellees at 31-32 n. 11; En Banc Brief of

Defendants-Appellees at 2, 4. Second, the quote upon which the majority relies for its conclusion

regarding Defendants' "job history" reason merely states that Wogsland and Turnquist had "questions"

about Chapman's job history during that time period. See R8-81-Ex. B (Wogsland Dep.) at 111 (quoted

in Majority Op. at 128 n.24). In that quote, unlike in his statement regarding Chapman's "recent" job

history, Wogsland does not say that these questions were a basis for his job decision. Of course, I do not

dispute that this statement explains Wogsland's subsequent statement that he relied on Chapman's lack of

"recent" job stability in making his decision not to hire Chapman. Rather, I recognize that the mere fact

that an employer had "questions" about an applicant does not mean that the employer rejected the

applicant because of those questions. Additionally, while the majority may not believe that Defendants'

"job history" explanation relies upon Wogsland's characterization of Chapman's alleged job instability as

"recent," Defendants on appeal not only did not make the argument on which the majority focuses, but,

instead, they repeatedly emphasized the "recent" aspect of their "job history" reason. See, e.g., Brief of

Defendants/Appellees at 31 n. 11 ("recent history of job skipping") (emphasis in original); id. at 32

(asserting that Chapman "had two strikes against him: he interviewed poorly and had a recent history of

job skipping") (emphasis in original); En Banc Brief of Defendants-Appellees at 2 (stating that, in

addition to Wogsland's perception of Chapman's interview, "Wogsland also was concerned about

plaintiff's recent work history, which suggested a tendency to change jobs fairly often") (emphasis in

original); id. at 3 ("More recently, though, plaintiff began job skipping"); id. at 4 (" 'recent stability in

job positions' ") (quoting Wogsland Dep. at 134 and adding emphasis); id. at 25 (discussing Wogsland's

decision to "look[ ] at recent histories") (bracketing added) (emphasis in original); id. (asserting that

Chapman "had more recent job changes than any comparati

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