                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 03-2038, 03-2070 & 03-3011
MOMCILO FILIPOVICH,
                           Plaintiff-Appellee, Cross-Appellant,
                                 v.


K&R EXPRESS SYSTEMS, INC.,
                        Defendant-Appellant, Cross-Appellee.

                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 98 C 4610—Joan Humphrey Lefkow, Judge.
                          ____________
    ARGUED APRIL 5, 2004—DECIDED DECEMBER 7, 2004
                      ____________




 Before BAUER, POSNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Convinced that his employer, K&R
Express Systems, Inc., has been discriminating against him
on various grounds prohibited by Title VII 42 U.S.C.
§§ 2000e, et seq., Momcilo Filipovich has sued the company
several times. In the present case, he alleges that K&R
discriminated against him on the basis of age and national
origin and that it unlawfully retaliated against him for
bringing his earlier complaints.
2                         Nos. 03-2038, 03-2070 & 03-3011

   That earlier litigation began in 1995, when Filipovich
sued K&R based on charges he filed with the EEOC in 1993
and 1994 complaining about discrimination on the basis of
national origin and retaliation. See Filipovic v. K&R Express
Sys., Inc., 176 F.3d 390, 392-93 (7th Cir. 1999). Before that
case was concluded in K&R’s favor (in fact, just fifteen days
after the district court dismissed the lawsuit) Filipovich
filed another charge with the EEOC. This one claimed that
the company had discriminated against him in a variety of
ways, all on account of his age or national origin or because
he had filed a charge. On April 27, 1998, the EEOC issued
a notice of right to sue, and on July 27, 1998, Filipovich
filed this lawsuit. The district court dismissed several of
Filipovich’s claims at the summary judgment stage, but the
age discrimination and retaliation claims went to the jury.
The jury found for Filipovich on both claims and awarded
compensatory and punitive damages. After trial, however,
the district court granted judgment as a matter of law to
K&R on the age discrimination claim, finding that Filipovich
failed to demonstrate that he was similarly situated to any
younger employee who was treated more favorably. The court
upheld the retaliation claim but remitted the punitive dam-
ages. K&R appealed from the verdict in Filipovich’s favor,
contending that there is insufficient evidence to support it;
Filipovich cross-appealed from the judgment as a matter of
law on the age claim and the elimination of his punitive
damage award. We find that K&R has the better of the
argument on all aspects of the case: we therefore reverse
the judgment in Filipovich’s favor on the retaliation claim,
and we affirm the judgment for K&R on the remainder of
the case.


                             I
 Filipovich is a 62-year-old man from the former Yugoslavia
who works for K&R Express Systems, a regional trucking
Nos. 03-2038, 03-2070 & 03-3011                              3

company. Filipovich works at K&R’s main terminal in
Hinsdale, Illinois, and is a member of Local Union No. 710
of the International Brotherhood of Teamsters. Filipovich
is, and was, a dockman for K&R. His responsibilities in-
clude loading and unloading freight on trucks and trailers.
Filipovich has worked as a full-time dockman since 1982.
  After fifteen years working only as a dockman, Filipovich
sought a promotion to the position of “spotter.” A spotter is
responsible for moving trailers between various loading
docks. Filipovich considered such a promotion “very big.”
The spotter position carried greater pay and certain week-
end work assignments not available to dockmen. Addition-
ally, driving a trailer is much easier on a person physically
than is loading and unloading freight.
  Spotter positions do not open up regularly. When the com-
pany expects openings, it posts a sign-up sheet. In order to
be chosen and trained as a spotter, an interested employee
must sign up. He must then take and pass a road test,
which is designed to ensure that the person knows how to
drive a trailer. Filipovich signed up for a spotter position,
but he failed the road test twice. Scott Weigand, K&R’s
safety manager and the person in charge of spotters, met
with Filipovich twice to train him on driving the trailers.
Weigand then told Filipovich that he had to proceed to a
“second stage” of training before he could take a qualifica-
tion test. Weigand, however, never met with Filipovich
again, and Filipovich was given neither another road test
nor the qualification test. Although Filipovich again signed
the sheet indicating his interest in the position, he was never
again contacted about becoming a spotter.
  Filipovich suspected that he was not selected as a spotter
because he was thought to be too old. In late 1997, he filed
an EEOC charge to this effect. Following the filing of his
charge, Filipovich began to receive disciplinary letters,
warning him of problems with his loading, unloading, and
4                          Nos. 03-2038, 03-2070 & 03-3011

securing of freight. Filipovich received eight such letters
between May 1998 and December 1999. As a result of the
letters, Filipovich received two suspensions, one in November
1998, the other in December 1999. Filipovich did not have
to serve the December suspension, as it was successfully
reversed by his union.
   Filipovich filed suit on July 27, 1998, alleging discrimina-
tion based on his age and national origin and retaliation
against him for his prior complaints. The court granted
K&R’s summary judgment motion directed to the national
origin claims and most of the age discrimination claims, but
it allowed Filipovich to proceed on the claim that the denial
of the promotion to the spotter position was on account of
either his age or the company’s desire to retaliate against
him. At trial, Filipovich introduced evidence documenting
Weigand’s refusal to train him further on driving the
trailers, and Weigand’s refusal to explain what the “second
stage” of training was supposed to be. Filipovich testified
that he trained extensively on his own and felt ready to
take a third road test, but that he was never allowed to do
so. Filipovich also claimed that he had not committed any
of the infractions for which he had been disciplined.
  K&R argued that it refused to promote Filipovich to a
spotter position because he failed the test twice, and be-
cause even after training sessions with Weigand, he still
could not safely maneuver the trailers. K&R pointed out in
its Rule 50 motion that Filipovich failed to show that he
was as qualified as those dockmen who were promoted, or
that there were similarly situated dockmen who received
more extensive training. K&R emphasized that there is no
official training program in place to teach dockmen how to
drive the trailers, and that Weigand’s attempts to teach
Filipovich were out of the ordinary.
  In response to the retaliation claim, K&R testified that its
shipping manifests, which contain the records of all freight
being loaded and unloaded, documented all of Filipovich’s
Nos. 03-2038, 03-2070 & 03-3011                              5

errors. In the normal course of its business, a dockman
signs a manifest and notes on the manifest what freight he
has handled. On September 18, 1998, K&R issued a letter
to Filipovich outlining his failure to unload 39 pieces of a
460-piece shipment. The shipment was destined for Michi-
gan, but the 39 pieces were left on a trailer heading for
Missouri. Filipovich claimed that the shipping manifest
indicated that all 460 pieces were to be left on the trailer,
but he admitted unloading the 421 pieces and then circling
the shipment on the manifest, which was a way of indicat-
ing that he had unloaded the entire 460-piece shipment.
Each of the disciplinary letters arose out of similar circum-
stances. Filipovich introduced nothing to suggest that other
dockmen did not receive letters when they committed
comparable errors.
  The jury nonetheless returned a verdict in Filipovich’s
favor on both claims. It awarded him damages of $1,200 in
back pay on the age discrimination claim and $300 in back
pay on the retaliation claim, as well as $126,423 in punitive
damages. K&R filed a Rule 50 motion, which the district
court granted with respect to the age discrimination claim.
The district court upheld the jury verdict on the retaliation
claim, but it reduced the punitive damage award to $25,000.


                              II
  We review de novo the district court’s decision to deny
K&R’s motion for judgment as a matter of law. See
Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d
573, 578 (7th Cir. 2003). Following a jury trial, we do not
re-weigh evidence, nor do we make credibility determina-
tions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). Our job is to assure that the jury had a
legally sufficient evidentiary basis for its verdict. Massey v.
Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir.
2000). A legally sufficient amount of evidence need not be
6                          Nos. 03-2038, 03-2070 & 03-3011

overwhelming, but it must be more than a “mere scintilla.”
Id. Like our review of a summary judgment motion, we
examine all the evidence in the record in the light most
favorable to the party against whom the court granted
judgment. See Cygnar v. City of Chicago, 865 F.2d 827, 834
(7th Cir. 1989). Unlike our review of a summary judgment
motion, however, review of a Rule 50 motion proceeds on
the basis of the evidence the jury actually had before it. We
will overturn a jury verdict only if, after reviewing that
evidence, it is clear that the plaintiff failed to present
enough evidence to support her claim. Massey, 226 F.3d at
924.
  At the trial, the question was whether Filipovich pre-
sented enough evidence to permit the jury to conclude that
he was the victim of discrimination. See Massey, 226 F.3d
at 925. It is not, as the parties mistakenly assume in their
briefs, whether Filipovich established all the elements of
the prima facie case outlined in the McDonnell Douglas v.
Green line of cases. Id. “The McDonnell Douglas framework
is designed to help plaintiffs raise an inference of discrimi-
nation during pretrial proceedings. After the trial on the
merits, the burden-shifting apparatus has served its
purpose and the required preliminary showings fall away.”
Diettrich v. Northwest Airlines, Inc., 168 F.3d 961, 965 (7th
Cir. 1999). If Filipovich presented enough evidence to allow
a rational jury to find that he was the victim of discrimina-
tion, the verdict must stand.
  Although we do not overturn a jury verdict lightly, that
does not mean that all jury verdicts must be affirmed. If, for
example, the evidence presented at the summary judgment
stage does not materialize at trial for some reason or
another, and the party seeking to reach the jury introduces
nothing else in its place, the court would have a duty to
grant a Rule 50 motion for the other side even if it had
correctly denied summary judgment. We are obliged to give
the same careful review to the evidence that we use at the
Nos. 03-2038, 03-2070 & 03-3011                              7

summary judgment stage, looking at the evidence that was
presented at trial and taking all reasonable inferences in
the light favoring the opponent of the motion. Here, after
examining the evidence presented at trial, we agree with
the district court that Filipovich did not present enough
evidence to allow the jury to find in his favor. Further, for
the reasons we explain below, we find that his retaliation
claim must fail as well.


                              A
   Filipovich had two theories of age discrimination: either
K&R discriminated against him on the basis of his age by
refusing to train him or it did so by refusing to allow him to
take a road test. Filipovich testified that Weigand trained
him twice, but then Weigand refused to train him again or
to allow him to take a third road test (after he failed the
first two). Filipovich says that the refusal to continue train-
ing him was discriminatory. But Filipovich was not able to
identify any younger dockmen that Weigand did train. K&R
representatives testified to the contrary that it was their
policy not to train anyone. Thus, if Filipovich received dif-
ferent treatment at all, it appears that he was given more
favorable treatment than the other dockmen who were
seeking spotter positions. Although Filipovich may believe
that Weigand made that decision on account of Filipovich’s
age, Filipovich failed to present any evidence that would
suggest such an inference is appropriate.
  Filipovich points out that witnesses at trial disputed
K&R’s claim that Filipovich himself abandoned training,
testifying that they saw Filipovich practicing alone, or that
they heard Filipovich repeatedly try to continue training
with Weigand. Even if the jury believed that Filipovich was
demonstrating diligence in this respect, however, this evi-
dence says nothing about the reason for K&R’s refusal to
continue providing Filipovich with formal training. Nor was
8                         Nos. 03-2038, 03-2070 & 03-3011

there any evidence that K&R refused to allow Filipovich to
take a third road test because of his age. It was undisputed
that Filipovich had failed the road test twice. K&R wit-
nesses testified that in light of his continued poor perfor-
mance during training, it would have been futile to allow
Filipovich to take a third test. Even if the jury chose to
disbelieve all of K&R’s explanations, Filipovich provided no
alternative that suggested discrimination. Merely disbeliev-
ing the employer’s explanation cannot sustain a jury
verdict. Accordingly, the grant of judgment as a matter of
law to K&R was correct.


                             B
   Filipovich’s retaliation claim faces similar difficulties.
K&R sent Filipovich eight disciplinary letters between May
1998 and December 1999. Filipovich contends that the
letters were sent in retaliation for his filing a charge with
the EEOC. K&R witnesses testified at trial that each letter
was written in response to a mistake made by Filipovich in
his loading or unloading of freight. The evidence showed
that the normal procedure at K&R is to keep a manifest for
each trailer being loaded or unloaded. Each piece of freight
or collection of freight is listed on the manifest. The
dockman loading the trailer circles each piece of freight
as he loads it, marking on the manifest if the freight is
damaged, is missing, or is missing a shipping label. Any
problem with the shipment should be noted on the manifest
by the dockman. If there is a dispute with the shipper or
consignee, K&R uses the manifest to prove which problems
with the freight existed before the freight reached K&R. If
freight arrives at K&R’s facility in a damaged condition, but
it is not marked as such, the consignee has the right to sue
K&R for the damaged freight. In that event, K&R must
absorb the cost of the damages itself. From K&R’s stand-
point, therefore, it is crucial that the manifests are accu-
rate.
Nos. 03-2038, 03-2070 & 03-3011                             9

  K&R established at trial that the manifests are business
records. The manifests at issue in each disciplinary letter
were admitted into evidence. In each instance, Filipovich
was the dockman responsible for the freight that was mis-
handled. K&R also introduced evidence showing that it was
company policy to send disciplinary letters any time a
dockman made such a mistake.
  On direct examination, Filipovich offered the following
testimony about the letters:
    Q: Now the various mistakes that have been alleged in
    these letters, did you commit them?
    A: No.
  On cross-examination, Filipovich was more forthcoming.
For example, in response to the warning letter prompted by
his act of leaving 39 pieces of the 460-piece shipment on a
trailer, Filipovich explained that he had been directed to
leave the entire 460-piece shipment on the trailer. It is
unclear to us why he thought that explanation would help
matters, as it implies that he mistakenly removed 421 pieces
and put them somewhere where they should not have been.
The manifest showed that Filipovich had circled the entire
shipment, which signified that he had unloaded all 460
pieces and directed them to their proper destination.
Filipovich admitted that he did not “have a clue” as to why
he would leave 39 pieces behind or, if he did not unload the
shipment, why he circled it on the manifest. Instead,
Filipovich resorted to a bare denial, claiming that “[t]his is
[a] totally false letter.”
  Filipovich’s responses and explanations for the other
letters were similar. In response to a letter warning him for
leaving one piece of a fifteen-piece shipment on the dock,
Filipovich explained, “That document maybe is falsified.” In
each instance, Filipovich failed to offer any plausible
alternative theory for the mistakes. Nor did Filipovich offer
any evidence to show that K&R’s manifest system was open
10                         Nos. 03-2038, 03-2070 & 03-3011

to falsification or manipulation. Filipovich also presented no
evidence indicating that K&R implemented its disciplinary
system in a discriminatory manner. There is nothing to
suggest, for example, that K&R failed to discipline other
dockmen for similar mistakes or that K&R sent letters to
Filipovich for infractions that usually did not merit a letter.
Instead, Filipovich testified only that he suspected that
K&R had made things up.
  The district court, in upholding the jury’s verdict, found
that the jury “was obviously persuaded by Filipovich’s slant
of events.” Filipovich v. K&R Express Systems, Inc., 2003
WL 1463531, *7 (N.D. Ill. 2003). The problem is that
Filipovich had no “slant of events.” Filipovich did not offer
a story which the jury could choose to believe. He offered
only a bald assertion that K&R was lying. Although
Filipovich held steadfastly throughout the trial to his claim
that he did not commit any of the offenses, the testimony he
offered cannot overcome the documented proof of his
responsibility.
  Filipovich bore the burden of proof, meaning that he had
to demonstrate that K&R retaliated against him because of
his EEOC charge. In his briefs, Filipovich claims that K&R
failed to offer “a shred of testimony or other evidence from
any witness to establish that Filipovich had in fact commit-
ted the offenses set forth in the letters.” K&R’s letters
themselves, however, were the proof that (at a minimum)
K&R thought that Filipovich had committed the offenses. It
was then up to Filipovich to explain why that was not
possible, or to explain how someone else might have been
responsible, or why K&R never would have disciplined
anyone else for such offenses. Filipovich offered neither
testimony nor evidence suggesting that K&R had no basis
in fact for the warnings.
  Filipovich’s denials alone, in the face of K&R’s documen-
tation that he was the dockman responsible for the freight
Nos. 03-2038, 03-2070 & 03-3011                            11

when it was mishandled, were not enough to justify submit-
ting this case to the jury. See Denisi v. Dominick’s Finer
Foods, Inc., 99 F.3d 860 (7th Cir. 1996) (finding summary
judgment appropriate where the plaintiff submitted only his
own testimony in an attempt to combat documented
evidence of his poor performance). Equally devastating to
his case was his failure to show that the letter writers knew
that he had filed an EEOC charge. In asking the jury to find
in his favor based only on his denial of responsibility and
the fact that he had filed an EEOC charge months earlier,
Filipovich asked too much. Simply put, we cannot find a
shred of evidence here suggesting that K&R acted on the
basis of a retaliatory motive.
  Because Filipovich failed to meet his burden of proof, we
must reverse the district court and grant K&R’s motion for
judgment as a matter of law on the retaliation claim.


                             III
  Filipovich was required to show that it was more likely
than not that K&R discriminated against him or retaliated
against him. An objective review of the evidence shows that
he failed to accomplish this task. We therefore AFFIRM the
district court’s grant of judgment as a matter of law in
K&R’s favor on the age discrimination claim and REVERSE
the district court’s denial of judgment as a matter of law for
K&R on the retaliation claim. Because we are reversing the
retaliation claim, we also vacate the remaining award of
punitive damages and the attorneys’ fees the court awarded
to plaintiff’s counsel.
12                    Nos. 03-2038, 03-2070 & 03-3011

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-7-04
