Chapman v. AI Transport

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

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

____________________________

D.C. Docket No. 94-01666-1-CV-WBH

JOHN D. CHAPMAN,

Plaintiff-Appellant,

versus

AI TRANSPORT, ET AL.,

Defendants-Appellees.

_____________________________

Appeals from the United States District Court

for the Northern District of Georgia

_____________________________

(October 2, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX,

BIRCH, DUBINA, BLACK, CARNES, BARKETT, MARCUS and

WILSON, Circuit Judges.*

_________________________

*

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

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

2

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 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

3

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

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.

4

companies worldwide, including AIGCS. AIG, AIG Aviation, AI Transport and

AIGCS are all insurance-related companies.

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

2

AIGCS was formerly known as American International Adjustment Company. For

simplicity, we will use the name AIGCS throughout our opinion.

5

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.

3

Smith was 50 years old, Wiggins was 47 years old, Sevillian was 39 years old, and

Jones was 37.

6

II. PROCEDURAL HISTORY

A. Complaint

In June 1994, after having exhausted his EEOC administrative remedies,

Chapman filed a lawsuit 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

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.

7

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

8

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 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

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. . . .

9

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] 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

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. . . .

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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].

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.

11

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 employment history to

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 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

12

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

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

13

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

employment 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

14

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 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

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....”

15

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

16

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

17

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,

18

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

19

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., 120 S. Ct. 2097, 2105 (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

(1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101

S. Ct. 1089 (1981), to evaluate ADEA claims that are based upon circumstantial

20

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

21

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

22

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

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 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.

23

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).

24

While acknowledging that questions of fact in job discrimination cases are

“both sensitive and 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 (1993) (quoting Postal Service Bd. of

Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482 (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

25

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

26

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.

27

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

28

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

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.

29

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

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.

30

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

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.

31

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 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.

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 . . . .

32

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.

33

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

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

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 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.

34

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.”

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.

35

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 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

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.

36

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.

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.

37

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 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

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

38

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.

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.

39

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

period for only one year).22

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

40

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 for

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.

41

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

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.

42

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 qualitites 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 discrimination alleged in failure to promote) (“Subjective criteria

necessarily and legitimately enter into personnel decisions involving supervisory

43

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 (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

44

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

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

45

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

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.

46

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 comparing Wiggins and Chapman’s interviews,

Turnquist stated:

47

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

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.

48

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 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

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.

49

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

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.

50

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

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

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.

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.

51

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

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.

52

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 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

53

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

54

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

55

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 (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

56

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

57

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

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.”

58

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

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.

33

Chapman makes other contentions relating to the district court’s award of costs against

him, but we find none of them merit discussion.

59

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

1

I concur in the majority opinion as to the appeal on the ADA trial verdict and on the

award of costs.

60

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

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

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.

61

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.

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 ¶¶ 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 ¶¶ 4-5.

7

See Jones Dep. at 21-26.

8

See Jones Dep. at 33-36.

62

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

9

See Sevillian Dep. at 11-17.

10

See Smith Dep. at 14-15.

63

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.

In 1992, the applicants applied to transfer from AI Transport to sister

company AIGCS. After applying, the applicants were each interviewed by both Jim

11

See Smith Dep. at 17-31.

12

See Wiggins Dep. at 15-16.

13

See Wiggins Dep. at 16-22, 26.

64

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

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.

65

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 Cir. 1999).17

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).

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 ___, 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, — L. Ed. 2d — (2000), but the Supreme Court also

66

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

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.

67

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 “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.

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).

68

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

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.

69

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 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

70

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 supervisor is left free to

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.

71

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

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).

72

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 Thus, “the mere

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.

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.

73

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

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”).

74

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 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

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 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.'”).

75

lack the aggressive and competitive disposition likely to be possessed by younger

employees. . . .” Worowski 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 is no less true in the area of age discrimination. Cf. Aka,

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),

76

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

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) (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

77

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

be accorded more weight than a subjective reason that does not meet all of those

factors.

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 —. 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.

78

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

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)).

79

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 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:

80

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

81

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 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

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).

82

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

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).

83

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 objective reason creates a question for the jury as to the disputed34 subjective

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

84

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

pretexuality as to 99% of them would be irrelevant as long as but one survives

(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.

85

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, 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)).

86

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 nondiscrimina

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