                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-6729.

                                Arthur ROSS, Plaintiff-Appellant,

                                                 v.

  RHODES FURNITURE, INCORPORATED, d.b.a. Marks Fitzgerald, Defendant-Appellee.

                                           July 20, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-95-P-
2380-S), Sam C. Pointer, Jr., Judge.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.

       PAINE, Senior District Judge:

       Arthur Ross appeals the district court's setting aside a jury verdict that awarded him more

than thirty seven thousand dollars in back pay. We reverse and remand with instructions to the

district court to reinstate and enter judgment on the jury's verdict. First, the record on appeal is

insufficient to permit an evaluation of whether the trial court erred when it granted the defendant's

renewed motion for judgment as a matter of law. Second, our de novo review of the trial testimony

convinces us that the jury could have reasonably disbelieved the defendant's proffered reasons for

firing Ross.

       In 1987, Ross, who is an African-American, was hired by Marks Fitzgerald to help deliver

furniture. In 1990, Ross began working for Rhodes Furniture when that company acquired Marks

Fitzgerald. Ross performed well and climbed the company ladder at Rhodes, ultimately rising to




   *
     Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.
the position of delivery manager. R. 2-26-27. Ross was never disciplined before he was accused

of and fired for soliciting tips. R. 2-30.

       On December 23, 1993, Ross was supervising the loading dock at Rhodes's warehouse. He

noticed that customers' tipping of employees for loading furniture was slowing down operations.

Ross testified that, to remedy the situation, he made a tip box and placed it near the loading dock.

R. 2-31-33. Ross further testified that he immediately removed the box from its perch outside the

loading dock when the receptionist informed him that a customer had complained about the tip box.

R. 2-35.

       Ross finished work on December 23rd and went on Christmas vacation. When he returned

a week later to pick up his paycheck, Ross noticed that Ricky Mann (Mann), a white male, was

serving as the delivery manager. Until that time, Mann had been a driver for Rhodes and, at times,

under Ross's supervision. On January 5, 1994, Ross returned from vacation to find that he was fired

and that Mann had replaced him. R.2-37, 39.

       Upon being fired, Ross filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC). Ross claimed that he was fired because he is black. He also

charged that tip solicitation was Rhodes's pretext for discriminatory discharge. Pl.'s Trial Ex. 2

(Ross's EEOC charge). The EEOC issued Ross a right to sue letter. Ross then filed suit in the

United States District Court for the Northern District of Alabama, seeking relief under Title VII and

Section 1981.

       Ross alleged that "[t]he defendant discriminated on the basis of race against the plaintiff with

respect to discharge, discipline[,] and other terms of employment." Pl.'s Compl. at 2, ¶ 6. The trial




                                                  2
judge denied Rhodes's motion for summary judgment, and the case went to trial. Upon deliberation,

the jury awarded Ross $37,341.85 in back pay.

       After moving for and receiving an extension of time, Rhodes filed a renewed motion for

judgment as a matter of law under Rule 50(b). Rhodes also moved for a new trial. Apparently, Ross

opposed neither motion. See Trial Docket. Chief Judge Pointer granted Rhodes's renewed motion

for judgment as a matter of law, set aside the jury's verdict, and entered judgment for Rhodes. He

denied as moot Rhodes's motion for a new trial. Trial Docket No. 54. Ross appealed.

        At oral argument to the appellate panel, counsel agreed that Rhodes moved for judgment

as a matter of law both at the close of Ross's case and at the close of all the evidence.1 The parties

did not, however, identify what grounds Rhodes offered in support of its pre-verdict motions under

Rule 50(a). The record on appeal is also silent on this point.2 The abbreviated record prevents any


   1
     In the present case, the Plaintiff challenges the entry of jnov on the merits. Accordingly,
whether the Plaintiff's failure to object to Defendant's Rule 50(b) motion on the ground that the
basis of Defendant's Rule 50(b) motion was waived by Defendant's inadequate Rule 50(a)
motion, constitutes waiver of Plaintiff's right to challenge the district court's entry of jnov
pursuant to Defendant's Rule 50(b) motion, is not before this court because the Plaintiff has not
raised the waiver issue on appeal. Cf. Williams v. Runyon, 130 F.3d 568 (3d Cir.1997) (holding
that where a party did not object to a movant's Rule 50(b)motion specifically on the grounds that
the issue was waived by an inadequate Rule 50(a) motion, the party's right to object on that basis
is itself waived); Whelan v. Abell, 48 F.3d 1247 (D.C.Cir.1995) (holding that failure to assert an
objection to a Rule 50(b) motion constitutes waiver of the objection).
   2
    At the close of Ross's evidence, defense counsel said, "Your Honor, I think we have a motion
ready." R. 2-155. A discussion was then held off the record. Id. Rule 50(a)(2) provides:

               Motions for judgment as a matter of law may be made at any time before
               submission of the case to the jury. Such a motion shall specify the judgment
               sought and the law and facts on which the moving party is entitled to the
               judgment.

              In this case, the record on appeal does not specify the judgment sought and the
       law and facts on which Rhodes should have been entitled to the judgment.

                                                  3
meaningful appellate review of whether Ross was afforded his Seventh Amendment right to cure

evidentiary deficiencies before his case went to the jury. Rule 50 was designed to protect that right,

and therefore, we adhere to its procedural mandates. See Crawford v. Andrew Sys., Inc., 39 F.3d

1151, 1154 (11th Cir.1994)(holding that a district judge has no authority to grant a Rule 50(b)

motion when no Rule 50(a) is made) and see also Sims' Crane Serv., Inc. v. Ideal Steel Prods., 800

F.2d 1553, 1557 (11th Cir.1986) (noting our attention to both the purpose and the wording of Rule

50(b)).

          Rule 50 motions must made on the record. That rule is not unique to this circuit. See Keith

v. Truck Stops Corp. of Am., 909 F.2d 743, 744 (3rd Cir.1990) ("the better practice would be for

such motions to be made on the record"). An adequate record may allow us to excuse technical

non-compliance with Rule 50. See MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 898

(5th Cir.1995). More importantly, an adequate record on appeal reveals whether a plaintiff's

Seventh Amendment rights have been ambushed. It also controls the evidentiary standard we apply

when reviewing a district court's decision to set aside a jury verdict. The standard of review is de

novo. General American Life Insurance Company v. AmSouth Bank, 100 F.3d 893, 899 (11th

Cir.1996); Bateman v. Mnemonics, 79 F.3d 1532 (11th Cir.1996)(district judge's resolution of post

trial motions renewed de novo).

          When reviewing a trial court's resolution of a Rule 50(b) motion, we compare the grounds

originally argued by the movant in its Rule 50(a) motion with those cited by the trial court in

granting a renewed motion for judgment as a matter of law. See National Indus., Inc. v. Sharon Steel

Corp., 781 F.2d 1545(11th Cir.1986); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 845-46 (5th

Cir.1975). If the grounds argued in a motion under Rule 50(a) are "closely related" to those argued


                                                  4
in a Rule 50(b) motion, then setting aside a jury's verdict is no surprise to the non-movant. No

Seventh Amendment right is ambushed. National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at

1549-50. But if the new and old grounds vary greatly, then a trial judge may not rely on the new

grounds to set aside the jury's verdict. See Sulmeyer v. Coca Cola Co., 515 F.2d at 845-46. If they

do vary greatly and the trial court relies upon the new grounds to set aside the jury's verdict, we will

reverse. See id.

       In National Industries, the record on appeal enabled us to conclude that the new grounds in

the Rule 50(b) motion constituted no surprise to the non-movant because the new and old grounds

were "closely related." See National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at 1549. In this

case, however, we are unable to evaluate whether the grounds in Rhodes's Rule 50(a) motions were

substantially different from those asserted in its Rule 50(b) motion. Hence, we cannot ascertain if

this appeal is more like National Industries, where "[t]he difference ... between the matters raised

in the motion for judgment n.o.v. and the earlier motion is not so great[,]" or whether it is akin to

Sulmeyer v. Coca Cola Company and Wilson v. Attaway, 757 F.2d 1227 (11th Cir.1985), where the

matters varied greatly and required reversal.

       We see no difference between a record that omits any mention of a Rule 50(a) motion and

one that is mute concerning the grounds argued in support of the Rule 50(a) motion. Both

deficiencies go to the heart of our concerns that a plaintiff's Seventh Amendment rights not be

ambushed and that a plaintiff be allowed to cure evidentiary deficiencies before the jury retires.

        The record before us makes it impossible to determine whether the trial court should be

affirmed under the "flexible approach" we took in National Industries or whether we should follow

a stricter approach as we did in Sulmeyer and Wilson. Accordingly, we must act in an abundance


                                                   5
of caution towards preserving the sanctity of a jury's verdict and vacate the trial judge's decision.

Cf. Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1113 (3rd Cir.1979) (vacating judgment of district

court because "[t]he record before us is not sufficiently complete to permit adequate appellate review

of the district court's action."). Instead of culling the record for substantial evidence to support the

verdict (as we would normally do), we will look for any evidence that would sustain the jury's

decision. We employ the "any evidence" standard because we are unable to ascertain whether Ross

was sandbagged by new arguments in Rhodes's motion under Rule 50(b). Cf. Wilson v. Attaway,

757 F.2d at 1237 (applying the "any evidence" standard when no Rule 50(a) motion was made).

        Applying this "any evidence" standard, we conclude that the jury verdict was supported by

the evidence, and therefore, it must be reinstated. We review de novo a district court's determination

of a Rule 50(b) motion. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th

Cir.1997). In doing so, "we must consider all the evidence in the light most favorable to [the

nonmovant] and determine "whether or not reasonable jurors could have concluded as this jury did

based on the evidence presented.' " Id. (quoting Quick v. Peoples Bank, 993 F.2d 793, 797 (11th

Cir.1993)).

        In his quest for relief, Ross must clear several evidentiary hurdles. He must make a prima

facie case. Id. at 1528. Ross made a prima facie case for discriminatory discharge. As an African-

American, he is a member of a protected class. Given the glowing evaluations Ross received prior

to being discharged, he was certainly qualified to serve as Rhodes's delivery manager. Rhodes fired

Ross and replaced him with a non-minority, Ricky Mann. That is a prima facie case. See Jones v.

Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir.1982)(iterating the elements of discriminatory

discharge).


                                                   6
          Second, once Rhodes produced legitimate non-discriminatory reasons for its adverse

employment action, Ross must prove his case. Combs v. Plantation Patterns, 106 F.3d at 1528.

Rhodes satisfied its intermediate burden of production when it claimed that Ross was fired for

soliciting tips. Ross then had to produce evidence from which the jury could have reasonably

inferred that Ross was fired because he is black. See id.

        Ross could employ either of two methods to carry his ultimate burden of proof. He could

adduce evidence that might directly establish discrimination. Alternatively, he could point to

enough evidence to permit the jury to reasonably disbelieve Rhodes's proffered reason that it fired

Ross for soliciting tips. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 101

S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). We must determine if Ross succeeded under either

method.

          Reviewing the first "direct" method—whether Ross's evidence could have persuaded the

jury that discrimination motivated his firing—the court examines whether Ross produced any

evidence beyond his prima facie case. Ross's prima facie case may certainly be considered in

determining whether he carried his ultimate burden, see Combs v. Plantation Patterns, 106 F.3d at

1528 (citing Burdine). Although a plaintiff must both present a prima facie case and show pretext,

the showing of pretext need not necessarily involve further evidence; the evidence in a prima facie

case might be strong enough to also show pretext. See id. at 1530. In this case, however, Ross

needed additional evidence beyond that which established his prima facie case. He needed trial

testimony if he was to carry his burden and survive Rhodes's Rule 50 motions.

       Ross could carry his burden via the second method by producing "any evidence that, if

believed, sustains his burden of proof[,]" Swanson v. General Servs. Admin., 110 F.3d 1180, 1185


                                                7
(5th Cir.1997), "to demonstrate the existence of a genuine issue of fact as to the truth of" Rhodes's

explanation that it fired him for soliciting tips. Combs v. Plantation Patterns, 106 F.3d at 1529. If

Ross succeeded, he was entitled to survive Rhodes's Rule 50 motions. See Carter v. City of Miami,

870 F.2d 578, 581 (11th Cir.1989). Applying the "any evidence" standard required by Wilson v.

Attaway, we conclude that Ross succeeded via the second method: he presented evidence which

permitted the jury to reasonably disbelieve Rhodes's proffered reason.

       One segment of Ross's testimony is especially compelling. Ross testified that Ron

Kirkpatrick—the supervisor who was instrumental in Rhodes's decision to fire Ross for soliciting

tips—had himself received tips. R. 2-48 at WW 15-17. Yet Kirkland decided to fire Ross, an

African-American, and replace him with a non-minority. The jury could have chosen to reject

Kirkland and Sweeney's testimony, i.e., that they decided to fire Ross for soliciting tips, as untrue.

Although we hold that this testimony satisfies Wilson v. Attaway's "any evidence" standard, Ross

presented additional evidence, which satisfies the more demanding "substantial evidence" standard.

Ross further testified that sometime prior to his being fired, Kirkland pointed to Ross and said "You

see that one over there, I am going to get rid of him." R. 2-55 at WW 21-23. Kirkland made that

statement to a white man. Id. at WW 24, 25. Ross contends that Kirkland's reference to "that one

over there" evinced racial animus by a decision maker who would ultimately fire him.

       Ross also testified that sometime in 1990, Kevin Sweeney said "I never seen as many blacks

in this building except in a Tarzan movie." R. 2-117, at WW 4-7. Even though Kirkland and

Sweeney made their comments long before they fired Ross, that did not prevent Ross from using

these statements as evidence to persuade the jury that it should disbelieve Rhodes's proffered reason.




                                                  8
See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 (11th Cir.1998) (citing Allen v.

County of Montgomery, 788 F.2d 1485, 1488 (11th Cir.1986)).

        The district judge rejected the Tarzan remark as an "isolated general racial remark," unable

to aid Ross in proving his case. The trial judge erred. Although we have repeatedly held that such

comments are not direct evidence of discrimination because they are either too remote in time or too

attenuated because they were not directed at the plaintiff, see, e.g., Evans v. McClain of Ga., Inc.,

131 F.3d 957 (11th Cir.1997), we have not held that such comments can never constitute

circumstantial evidence of discrimination. Other Courts of Appeals have indicated that such

comments may provide circumstantial evidence to support an inference of discrimination. E.g.,

Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3rd Cir.1997) ("Although stray remarks by

non-decisionmakers alone are insufficient to establish discriminatory intent, we have held that such

remarks can still constitute evidence of the atmosphere in which the employment decision was

carried out.").

        Ross's case relied on circumstantial evidence. Even the district judge so concluded. That

is clear from the trial court's use of McDonnell Douglas's burden-shifting analysis, which does not

apply in direct evidence cases. See Massaro v. Mainlands Sections 1 & 2 Civic Ass'n, Inc., 3 F.3d

1472, 1476 n. 6 (11th Cir.1993). Because Ross's case turned on circumstantial evidence, the proper

inquiry is whether Sweeney's "Tarzan" remark and Kirkland's remark, when read in conjunction with

the entire record, are circumstantial evidence of those decisionmakers' discriminatory attitude. If

so, the court must then determine whether such circumstantial evidence, along with other evidence

(including Ross's prima facie case), might lead a reasonable jury to disbelieve Rhodes's proffered

reason for firing Ross. We conclude that these comments, considered together with the fact that


                                                 9
Kirkland had received tips, support the jury's rejecting Rhodes's proffered explanation for firing

Ross.

        In our view, Ross's evidence created a genuine issue of fact concerning the truth of Rhodes's

proffered reason. The jury could have found that the tipping episode was a pretext for firing Ross.

That is enough because, consistent with Combs, once Ross was able to present evidence from which

a jury reasonably could have disbelieved Rhodes' proffered explanation for its action, it is the jury's

job (not ours) to decide whether Rhodes acted with discriminatory intent. See Combs v. Plantation

Patterns, 106 F.3d at 153 ("[O]ne way a plaintiff may succeed in establishing discrimination is by

showing that the employer's proffered explanations are not credible. When that happens, the

plaintiff may or may not ultimately prevail in the litigation, because the factfinder may or may not

choose to make the permissible inference of discrimination."). Here, the jury made that inference,

and it was a permissivle one. Because Ross presented enough evidence fron which the jury could

find pretext, the jury's final, permissible inference as to the question of Rhodes's intent should be

left undisturbed. Therefore, the judgment of the district court is REVERSED and the case is

REMANDED to the district court with instructions to reinstate the jury verdict and to enter

judgment in accordance therewith, with allowance of interest from the date the jury rendered its

verdict.




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