                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-2070.

                     Jerry E. TIDWELL, Plaintiff-Appellee-Cross-Appellant.

                                                 v.

                 CARTER PRODUCTS, Defendant-Appellant-Cross-Appellee,

                                           Feb. 26, 1998.

Appeals from the United States District Court for the Middle District of Florida. (No. 94-218-CIV-
17C), Elizabeth A. Jenkins, Magistrate Judge.

Before ANDERSON and CARNES, Circuit Judges, and O'KELLEY*, Senior District Judge.

       O'KELLEY, Senior District Judge:

       Carter Products appeals from a judgment entered against it pursuant to a jury verdict in favor

of Jerry Tidwell in this age discrimination case under the Age Discrimination and Employment Act,

29 U.S.C. § 621, et seq. (the ADEA). Carter challenges the district court's denial of its motion for

judgment as a matter of law on Tidwell's claim that his termination by Carter constituted age

discrimination as well as the district court's award of equitable relief in the form of front pay to

Tidwell. In his cross-appeal, Tidwell challenges the court's grant of judgment as a matter of law to

Carter on the issue of willfulness. The dispositive issue in this appeal is whether Tidwell produced

adequate evidence to allow a reasonable factfinder to disbelieve Carter's proffered nondiscriminatory

reason for terminating Tidwell. We conclude that he did not and that Carter was entitled to

judgment as a matter of law for that reason.

                                               Facts


   *
   Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of
Georgia, sitting by designation.
        Carter Products manufactures and sells health and beauty care products. Tidwell began his

employment with Carter as a district sales manager in 1972. He later served as Territory

Representative for Carter's central Florida region, working out of Tampa, until his April 23, 1993

termination at the age of fifty.

        Tidwell alleges that he was terminated because of his age. Carter contends that Tidwell's

position was eliminated as part of a nationwide reduction-in-force (RIF). Carter eliminated twelve

positions, from an original force of 58. While four of the original 48 sales employees over 40 were

discharged, 19 were retained.

        During its reorganization, key accounts, including many of Tidwell's, were transferred to

regional and divisional managers. Carter also developed a new sales philosophy, beginning to

outsource to independent contractors. The number of sales territories were reduced in order to

reduce costs, and it was determined that Florida could be served by a single territory manager. At

that time there were two territory managers—Tidwell in Tampa (age 50) and James Booth in Miami

(age 26). Carter determined that it would be best served by a Miami territory, contending that

Miami had more direct accounts and more independent stores requiring individual attention. Carter

contends that Tidwell's performance had nothing to do with this decision. The Tampa territory

manager position was therefore eliminated, its accounts to be absorbed by other workers. Similar

decisions were made throughout the country, with no apparent pattern of retention according to age

(several older employees were retained while their younger counterparts were eliminated). Carter

explained its methodology used in the selection process: If there was only one sales representative

in the area to be eliminated, that person would be released; if there were more than one

representative, their relative performances would be compared. Carter characterized Tidwell's

situation as falling into the first category.
                                        Procedural History

       The EEOC issued a "no reasonable cause" determination to Tidwell's charge of

discrimination. The EEOC found no cause to believe Carter had violated any statutes in terminating

Tidwell. "The evidence obtained did not support [Tidwell's] allegation of unlawful employment

discrimination." DX 20. The EEOC explained in a memorandum that plaintiff's low rating in his

1992 evaluation "signifies that [Tidwell] was performing below the reasonable expectations of

[Carter]." It reasoned that plaintiff's performance "was a factor along with [Carter's] other reasons

to terminate [Tidwell's] employment." DX 20.

       Tidwell then filed an action in the District Court for the Middle District of Florida, claiming

he was discharged because of his age in violation of the ADEA. Before the jury, Tidwell attempted

to prove his claim under a disparate treatment theory, which requires proof of intentional age

discrimination. Tidwell offered several indications of age discrimination: (1) his 1992 performance

evaluation; (2) Carter's retention of Booth and the Miami territory; (3) inconsistent reasons given

for his termination.

       The trial court denied Carter's motions for judgment as a matter of law at the close of

Tidwell's case. Carter then offered its nondiscriminatory reason, the RIF, for Tidwell's termination.

The court denied Carter's motion for judgment as a matter of law at the close of all the evidence.

The jury returned a verdict for Tidwell and awarded $60,000 in lost wages and benefits. The amount

was doubled as liquidated damages because the jury found the discrimination to be a willful

violation of the ADEA. The court reserved entering judgment until it concluded a supplemental

hearing regarding valuation and certain evidence of Tidwell's side business which he had concealed

during discovery. The court found that Tidwell had indeed lied about his side business but rejected

Carter's unclean hands defense to preclude a front pay award. Instead, the court ordered a set-off
against the front pay award in the amount of Carter's expenses associated with the additional

discovery caused by Tidwell's false testimony. The court awarded front pay for the period from the

jury verdict until Tidwell's 62nd birthday—more than eight years. Upon Carter's motions, the Court

permitted the jury's verdict on liability to stand and refused to reconsider its ruling on front pay. The

Court did, however, overturn the jury finding as to willfulness.

                                         Standard of Review

        A district court's denial of a defendant's motion for judgment as a matter of law is reviewed

de novo, entailing the application of the same standards used by the district court. Dade County v.

Alvarez, 124 F.3d 1380, 1383 (11th Cir.1997). Those standards require the consideration of

"whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). All evidence and inferences

are considered in a light most favorable to the nonmoving party. Carter v. City of Miami, 870 F.2d

578, 581 (11th Cir.1989).

        If the facts and inferences point overwhemingly in favor of one party, such that reasonable
        people could not arrive at a contrary verdict, then the motion was properly granted.
        Conversely, if there is substantial evidence opposed to the motion such that reasonable
        people, in the exercise of impartial judgment, might reach differing conclusions, then such
        a motion was due to be denied and the case was properly submitted to the jury.

Id. (footnotes omitted). The nonmoving party must provide more than a mere scintilla of evidence

to survive a motion for judgment as a matter of law; "there must be a substantial conflict in evidence

to support a jury question." Id. Accordingly, we must determine whether reasonable jurors could

have concluded as this jury did based on the presented evidence. Quick v. Peoples Bank, 993 F.2d

793, 797 (11th Cir.1993).

                                              Discussion
       Carter contends that it is entitled to judgment as a matter of law because (1) Tidwell

presented no evidence, statistical or otherwise, of age bias or discrimination and (2) Tidwell failed

to demonstrate that Carter's articulated reason for its decision to include him in the RIF was

pretextual. Tidwell disagrees, arguing that judgment as a matter of law is inappropriate because he

introduced sufficient evidence to permit the jury to disbelieve Carter's proffered explanation for his

dismissal.

        To create a jury question in a discrimination case based on circumstantial evidence, a

plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). A prima facie case effectively

creates a presumption of unlawful discrimination by the employer: "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." Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)(footnote

omitted). Tidwell established a prima facie case by proving that he was 50 years old, had worked

for Carter for 21 years, was terminated, and that his accounts were assumed by a 26 year old with

only one year of experience with the company.1

       The establishment of a prima facie case shifts the burden to the employer to produce

legitimate, nondiscriminatory reasons for the allegedly discriminatory employment action. Id. at



   1
    Our task is not to revisit whether the plaintiff below successfully established a prima facie
case of discrimination. "When the defendant fails to persuade the district court to dismiss the
action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of
the reason for the plaintiff's rejection the factfinder must then decide whether the rejection was
discriminatory" and the question of whether the plaintiff properly made out a prima facie case is
no longer relevant. See U.S. Postal Serv. v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-
82, 75 L.Ed.2d 403 (1983) and Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th
Cir.1997).
254, 101 S.Ct. at 1094. To satisfy this burden, the employer "need only produce admissible

evidence which would allow the trier of fact rationally to conclude that the employment decision

had not been motivated by discriminatory animus." Id. at 257, 101 S.Ct. at 1096. If the employer

successfully produces a nondiscriminatory reason for its action, the presumption of discrimination

disappears. Id. at 255, 101 S.Ct. at 1094-95. The plaintiff then has the opportunity to show the

employer's proffered reason to be pretextual. Id. at 256, 101 S.Ct. at 1095.

        Once an employer offers a legitimate, nondiscriminatory reason for its action, a plaintiff

must show that "there is 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 actions" in order to

survive judgment as a matter of law. Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th

Cir.1997). If a plaintiff provides a prima facie case plus evidence discrediting the employer's

proffered reasons, the plaintiff is entitled to have the factfinder decide the ultimate issue of

discrimination. Id. at 1531.

       The task of this court is to consider the entire record in the light most favorable to Tidwell

to determine whether there was sufficient evidence for Tidwell to withstand Carter's motions for

judgment as a matter of law. In order to affirm the district court's denial of judgment to Carter as

a matter of law, we must find that Tidwell has cast sufficient doubt on Carter's proffered legitimate,

nondiscriminatory reasons to permit a reasonable factfinder to conclude that Carter's proffered

reasons "were not what actually motivated its conduct," Cooper-Houston v. Southern Ry. Co., 37

F.3d 603, 605 (11th Cir.1994).

        Carter proffered its RIF as a legitimate, nondiscriminatory reason for terminating Tidwell,

eliminating the presumption of discrimination that attached to Tidwell's prima facie case. The court

will consider the record evidence to determine whether it would permit a reasonable factfinder to
reject Carter's explanation, allowing the case to be submitted to the jury.

I. 1992 Performance Evaluation

        Tidwell's evaluations show that he met Carter's expectations in 1990 and 1991. During his

1992 evaluation, his supervisor, Sindee Furshman, ranked him below expectations. Tidwell

complained that the evaluation was unfair. He testified that he asked Furshman several times

whether he could get a good evaluation. The first two times she responded that she did not know.

"The third time I asked her, I said, "Sindee, if I do my job completely perfect, can I get a good

evaluation?' And she went like that to me (shaking head) and that was it." Rec. 3-130.

        Carter contends that Furshman's response was a stray remark. This incident occurred several

months before his termination, an event with which Furshman had no involvement.2 Additionally,

Furshman's response in no way suggested that Tidwell's age was the reason for his termination. This

instance does not provide the needed "more than a mere scintilla of evidence" to survive a motion

for judgment as a matter of law. It does not present a substantial conflict in evidence as to Carter's

purported reason for terminating Tidwell, the RIF, as to support a jury question.

II. Retention of Booth and the Miami Territory

        Carter presented evidence at trial to demonstrate that the RIF was age neutral, belying any

intent to discriminate. Among other things, Carter's expert showed that the average age of the sales

force actually increased slightly after the RIF. Carter argues that its elimination of Tidwell's territory

was not a pretext for age discrimination, as is clear because the territory was eliminated and has not

been replaced. Tidwell improperly questions Carter's methodology and process in the RIF. Tidwell

also focuses on the difference in age between himself and Booth and questions the wisdom of the

choice to retain Booth. However, while Booth absorbed some of Tidwell's accounts, he was not


   2
    Furshman was also eliminated as part of Carter's RIF.
hired to replace Tidwell. Tidwell also points out that he was never offered a transfer to Miami. This

contention is superfluous, since no other workers were offered transfers and Tidwell himself never

suggested the idea. See Zaben v. Air Products & Chem., Inc., 129 F.3d 1453, 1459 (11th Cir.1997)

(employee's contention that he should have been allowed to transfer did not present sufficient

evidence of pretext to create a jury question when no other workers were permitted to transfer

either). All of these contentions by Tidwell are disagreements about the wisdom of Carter's decision

to retain Booth and the Miami territory, rather than disbelief in the RIF and its application to

Tidwell. "[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." Combs, 106 F.3d at 1543.

III. "Inconsistent" Remarks

       Tidwell maintains that certain alleged inconsistencies as to the reason given for Tidwell's

termination allow an inference of pretext. Carter maintains that the reason for its decision was based

on its reorganization and an evaluation of its territorial needs. Tidwell points to several instances

to show Carter's inconsistency.

       A few days before his termination, Tidwell was asked to meet with a supervisor in Atlanta,

Tim Cleary, and the head of Carter's personnel department, Denise Duca. At this time Tidwell was

told that he had done a great job but that his position was being terminated due to the realignment

of territory. When Tidwell asked Cleary who was going to take over the Tampa market, Cleary

responded that he did not know.

       Kenneth Geissler, Carter's vice-president of field sales, wrote a memo regarding the positions

which he anticipated would be affected by the territory realignments. The memo notes two criteria:

(1) whether they are in a market with other Carter personnel and, (2) if so, how they were selected
to be terminated verses others in their marketplace. As to Tidwell, the memo notes: "Tampa. Total

volume $900,000. Only 7% of volume done in food. Five accounts make up 80% of business.

Performance issue. Accounts would be covered by telemarketing or by J. Booth, Angel Martinez."

DX 7.

        Tidwell placed great importance on the EEOC "no cause" determination which noted that

performance was a factor along with Carter's other reasons for terminating Tidwell. Carter argues

that the EEOC "no cause" determination did not reflect any inconsistent statements made by Carter

but simply reflected a conclusion made by the EEOC after reviewing Tidwell's performance

evaluations.

        Although the identification of inconsistencies in an employer's testimony can be evidence

of pretext, see Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir.1995), and Howard

v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994), the examples in this case do not present such

a situation. At most, the jury could find that performance was an additional, but undisclosed, reason

for the decision; the existence of a possible additional non-discriminatory basis for Tidwell's

termination does not, however, prove pretext. See Zaben, 129 F.3d at 1458-59 ("Although the

company gave differing explanations for the selection of employees to be discharged, saying on the

one hand that seniority played no role in the process and that only an employee's performance was

considered while, on the other hand, asserting that [the employee] was discharged because he had

the least seniority, its reasons are not ... necessarily inconsistent.").

                                              Conclusion

        Tidwell failed to produce evidence adequate to permit a reasonable factfinder to disbelieve

Carter's proffered nondiscriminatory explanation that it terminated Tidwell as a part of its

reduction-in-force. Therefore, Carter was entitled to judgment as a matter of law, and the district
court should not have permitted the case to go to the jury.

       Accordingly, we REVERSE the entry of judgment in favor of Tidwell, and we REMAND

the case for entry of judgment in favor of Carter.
