                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0106p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                    X
                              Plaintiff-Appellant, -
 WILLIE J. JACKSON,
                                                     -
                                                     -
                                                     -
                                                         No. 06-5844
          v.
                                                     ,
                                                      >
 FEDEX CORPORATE SERVICES, INC. and FEDERAL          -
                                                     -
                            Defendants-Appellees. -
 EXPRESS CORPORATION, INC.,

                                                     -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                  No. 04-02470—Samuel H. Mays, Jr., District Judge.
                                           Argued: July 19, 2007
                                    Decided and Filed: March 6, 2008
             Before: MARTIN and ROGERS, Circuit Judges; HOOD, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: James Edward King, Jr., ESKINS KING & SEVIER, Memphis, Tennessee, for
Appellant. Karen Vaughan McManus, FEDEX CORPORATION, Memphis, Tennessee, for
Appellees. ON BRIEF: James Edward King, Jr., Bradley W. Eskins, ESKINS KING & SEVIER,
Memphis, Tennessee, for Appellant. Karen Vaughan McManus, FEDEX CORPORATION,
Memphis, Tennessee, for Appellees.
         HOOD, D. J., delivered the opinion of the court, in which MARTIN, J., joined. ROGERS,
J. (p. 9), delivered a separate dissenting opinion.
                                            _________________
                                                OPINION
                                            _________________
       DENISE PAGE HOOD, District Judge. Appellant Willie J. Jackson (“Jackson”) filed a
complaint against FedEx Corporate Services, Inc. and Federal Express Corporation (collectively
“FedEx”) alleging he was discriminated against based on his race in violation of The Civil Rights
Act of 1991, 42 U.S.C. § 1981 as amended (“Section 1981”), Title VII of the Civil Rights Act,

        *
         The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 06-5844               Jackson v. Federal Express Corp., et al.                                             Page 2


42 U.S.C. § 2000e et. seq. (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. 621 et. seq. The district court dismissed Jackson’s ADEA claim and Jackson does not
appeal that decision. The district court denied FedEx’s Motion for Summary Judgment with respect
to Jackson’s claims under Section 1981 and Title VII. Following the close of Jackson’s evidence,
the district court granted FedEx’s motion, pursuant to Fed. R. Civ. P. 50, to dismiss Jackson’s case.
For the reasons set forth below, the district court’s order is reversed and the matter remanded for
further proceedings consistent with this Opinion.
                                              I. BACKGROUND
        Jackson, an African-American, began his employment with FedEx in 1979 as a financial
analyst. Prior to his employment at FedEx, Jackson attended Florida A&M University and received
a Masters of Business Administration in Finance from the University of North Carolina at Chapel
Hill. Jackson also worked as a computer programmer for IBM Corporation prior to becoming an
active duty officer in the Army. Jackson served in the Military Intelligence Branch of the Army
Security Agency and obtained the rank of Captain. While working for FedEx, Jackson took
computer programming courses, including FORTRAN, C, and COBOL, at a community college in
Memphis, Tennessee. Jackson also participated in training courses at FedEx in the following areas:
Basic Java Programming; TCP/IP; Basic Administration; HP-UX Systems Administration; PVCS
Version Manager System; C Programming; and Basic C++ Programming.
         Jackson held the title of Technical Advisor in the Information Technology (“IT”) Department
for fifteen years and in approximately 1995 he began working under the supervision of Miley
Ainsworth in the IT Department. As a Technical Advisor, Jackson primarily functioned as a system
administrator, installing, upgrading and testing computer programs purchased by FedEx to operate
on its computer operating systems and servers.
         In 1999, Jackson was transferred to a software application development group under the
direction of Charles Sherwood. In 2000, in part resulting from a centralization of departments
within FedEx, Jackson accepted FedEx Services’ offer of employment and as of June 1, 2000, his
job title changed to Senior Technical Analyst. In the summer of 2000, Sherwood’s group was
assigned the PowerPad project, which involved the design and development of software for a new
handheld device for use by FedEx couriers. The six other employees that comprised Sherwood’s
workgroup, all of whom are Caucasian, were: Virginia White, Mary Brown, Glen Parham, Cathy
Story and Steve Morrison. All of the individuals in Sherwood’s workgroup held the title of Senior
Technical Analyst. White, Brown and Parham did not have a Bachelor’s degree and none of the
employees other than Jackson held a master’s degree. Brown functioned as a business analyst and
the other five employees in Jackson’s workgroup were programmers.
        Barbara Gail Bermel, Human Resources manager of FedEx Services, testified that beginning
in August of 2000, FedEx Services conducted a workforce adjustment of its IT Department under
the FedEx Services IT Resource Management Plan. As part of the adjustment, Sherwood was asked
to complete Employee Contribution Assessment (“ECA”) packets to assess employees under his
supervision. The ECA is a tool to evaluate the performance      and contribution of each employee
toward the short- and long- term goals of the workgroup.1 The four general categories in the ECA
are: (1) contribution to short-term tasks and objectives; (2) contribution to long-term goals and
strategies; (3) contribution to leadership, cooperation and teamwork; and (4) performance review.


         1
           The parties disagree with regard to whether the ECA is designed to evaluate employee contribution in relation
to the goals of the particular group in which the employee works or whether it is in relation to the company as a whole.
The district court judge determined that the proofs presented at trial focused on the workgroup who reported to
Sherwood, and that is therefore the universe within which the district court analyzed “similarly situated.”
No. 06-5844              Jackson v. Federal Express Corp., et al.                                              Page 3


        Jackson received a one, which is the lowest possible score, in each of the first three
categories of the ECA, and all the other employees in Sherwood’s          workgroup received a four, the
highest possible score, in each of the first three categories.2 At trial, Sherwood testified that he gave
Jackson a one in each category because his skills as a Systems Administrator were no longer needed
for the PowerPad project, which Sherwood described as the short- and long- term goals of the
workgroup.
       In September of 2000, FedEx employees with the lowest ECA scores were selected for
termination, effective November 30, 2000, if the employee did not secure another position within
FedEx or accept the offer of severance pay and outplacement assistance. Jackson did not accept the
severance offer, nor did he apply for any open positions at FedEx. Jackson’s employment with
FedEx terminated on November 30, 2000.
        Following the close of Jackson’s case-in-chief, FedEx brought a motion to dismiss Jackson’s
case pursuant to Fed. R. Civ. P. 50, which the district court granted, finding that there were no
similarly situated individuals with whom Jackson could be compared for purposes of establishing
a prima facie case of race discrimination. Ruling from the bench, the district court judge stated,
         to be similarly situated . . . with whom the Plaintiff seeks to compare treatment must
         have the same supervisor, be subject to the same standards, having engaged in
         similar conduct without differentials or mitigation . . . It means these individuals
         have to have similar background, education, experience, job responsibilities, and
         performance. It means that the job responsibilities must require the same skills and
         abilities. And the job responsibilities are equal and interchangeable. That’s my
         understanding of the state of the law in this Circuit. That’s a high standard as to
         these individuals.
         And I want to focus because the mandate is that there be general similarities. I want
         to focus on experience and job experience. . . There are differences in education of
         these individuals. Some were trained more specifically for computer work. Some
         weren’t. But, let’s look past their individual situations, and focus on the experience
         and job responsibilities.
(J.A. 926-27).
        The district court concluded that Story, White, Griffin and Morrison were not similarly
situated to Jackson, as they all functioned as programmers and their job responsibilities did not
require the same skills or abilities as Jackson’s. The district judge found that Brown was the only
employee in Jackson’s workgroup with whom he could possibly be similarly situated. Brown
functioned as a business analyst and her principal duty was acting as a liaison between the business
side of the operations and the employees who developed programming codes. Brown never


         2
          The fourth category of the ECA entitled Performance Review evaluates an employee’s prior on-the-job
performance. On this section, each employee in Jackson’s workgroup received between a 3.1 and 3.8, with Jackson
receiving a 3.5. The ECA Instructions state,
         It is important to note that an employee can score high or low on the performance review factor and
         at the same time score high or low on each of the additional contribution factors. For example, an
         employee with a high performance review may be performing tasks well, but the tasks may not be
         significantly contributing to the objectives of the company. Conversely, an employee with a lower
         review score may be performing a task at a minimal level, but completing the task is critical to
         obtaining the short-term objectives or long-term goals of the company.
(Joint Appx. at 763).
No. 06-5844           Jackson v. Federal Express Corp., et al.                                  Page 4


graduated from college, but took some college courses. The district judge stated that Brown had
substantial familiarity with business at FedEx, as she had worked in accounting, sales revenue,
shipping and “architectural”. (J.A. 931). Jackson had no experience as a business analyst and had
not been a programer for a number of years. The district court then found that “a reasonable jury
would not or could not find that there was a legally, sufficient, evidentiary basis to conclude that Ms.
Brown and Mr. Jackson were similarly situated for purposes of this case.” (J.A. 931). Judgment
in favor of FedEx was entered as a matter of law.
                                           II. ANALYSIS
A.     Standard of Review
         The court reviews de novo the district court’s grant of judgment as a matter of law under Fed.
R. Civ. P. 50(a). Scotts Co. v. Central Garden & Pet Co., 403 F.3d 781, 788 (6th Cir. 2005) (citing
Monette v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir. 1991)). In entertaining a motion for
judgment as a matter of law, the court is to review all evidence and draw all reasonable inferences
in the light most favorable to the non-moving party, without making credibility determinations or
weighing the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000).
        Judgment as a matter of law pursuant to Rule 50(a) is appropriate when “a party has been
fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.” Fed. R. Civ. P. 50(a)(1). “In other words, the decision to grant
judgment as a matter of law or to take the case away from the jury is appropriate ‘whenever there
is a complete absence of pleading or proof on an issue material to the cause of action or when no
disputed issues of fact exist such that reasonable minds would not differ.’” Jackson v. Quanex
Corp., 191 F.3d 647, 657 (6th Cir. 1999) (quoting Sawchik v. E.I. DuPont Denemours & Co., 783
F.2d 635, 636 (6th Cir. 1986)).
B.     “Similarly Situated” Standard
        Jackson asserts that in ruling on FedEx’s Rule 50 Motion, the district court applied an overly
narrow construction of the similarly situated standard. Jackson argues that the district court applied
an incorrect legal standard, and committed gross error, in stating that “similarly situated” is a “high
standard” to meet. Specifically, Jackson contends that the district court improperly used FedEx’s
rationale for the termination - the alleged experience of the computer programmers in Jackson’s
workgroup - as the criteria for defining similarly situated. Jackson asserts that the district court’s
application of the similarly situated standard frustrated Jackson’s opportunity to present evidence
that FedEx’s rationale for his termination was mere pretext. The standard applied by the district
court, Jackson contends, also runs afoul of the intent of Title VII, which is to ensure equality in the
workplace. Jackson stresses the fact that the burden of establishing a prima facie case of
discrimination “is not onerous.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
       FedEx responds that the district court applied a correct statement of law in ruling on its Rule
50 Motion. FedEx argues that the district court stated the standard for similarly situated from
Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992) and Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344 (6th Cir. 1998), prior to explaining the relevant factors applicable to the instant
case. FedEx also argues that in Sixth Circuit cases involving alleged discrimination related to an
employer’s assessment of an individual’s qualifications to perform a job or contribute to the
employer’s needs, the focus is on the employee’s relevant qualifications, including education,
experience, work history, and job responsibilities. Leadbetter v. Gilley, 385 F.3d 683 (6th Cir.
2005); Campbell v. Hamilton County, 2001 U.S. App. LEXIS 22884 (6th Cir. October 17,
2001)(unpublished). FedEx argues that the district court made its own determination of the factors
No. 06-5844               Jackson v. Federal Express Corp., et al.                                              Page 5


relevant to the case, as opposed to Jackson’s contention that the district court applied an overly
narrow analysis of similarly situated. Namely, FedEx asserts that because the ECA is the instrument
that led to Jackson’s termination, it was correct for the district court to look primarily to
contribution, experience and job skills in defining similarly situated since those were the criteria in
the ECA. FedEx notes that although Jackson received comparable scores to the other individuals
in his group in the area of performance, because performance accounted for only one fourth of the
ECA, the district court properly focused on contribution to the short- and long- term goals of the
workgroup.
        Jackson likewise argues that the factors analyzed in Mitchell are not inflexible and the proper
inquiry is whether plaintiff is similarly situated in all relevant aspects. See McMillan, 450 F.3d 405,
414 (6th Cir. 2005) (“The plaintiff need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be considered ‘similarly-situated’”).
Jackson contends that the most relevant element of Jackson’s termination is the ECA itself.
However, he further argues that the district court failed to utilize the ECA when analyzing whether
Jackson established a prima facie case. Jackson asserts that the relevant aspects the district court
should have considered are all of the categories in the ECA, and not just those relating to experience.
Jackson also contends that the cases cited by FedEx are factually distinguishable.3 See Hill v.
Forum Health, 167 Fed.Appx. 448 (6th Cir. 2006) (involving a failure to promote claim); Leadbetter
v. Gilley, 385 F.3d 683 (6th Cir. 2004) (involving a reverse discrimination claim); Campbell v.
Hamilton County, 23 Fed.Appx. 318 (6th Cir. 2006) (involving a claim of disparate treatment in the
disciplinary context).
        The Mitchell case involves claims of race and age discrimination in the context of
employment termination. Mitchell, a 51 year old African-American woman, was employed as an
accounts examiner for the Toledo Hospital. In an attempt to play a practical joke, Mitchell hid
certain forms from her supervisor. Once the forms were found, Mitchell was informed that her
actions constituted misuse of hospital property, a terminable offense, and she was discharged. The
basis of Mitchell’s claim of discrimination was that two non-minority employees engaged in similar
conduct, but were afforded more lenient treatment because they are Caucasian. In Mitchell, we
stated that,
         to be “similarly situated,” the individuals with whom the plaintiff seeks to compare
         his/her treatment must have dealt with the same supervisor, have been subject to the
         same standards and have engaged in the same conduct without such differentiating
         or mitigating circumstances that would distinguish their conduct or the employer’s
         treatment of them for it.
964 F.2d at 583. We concluded that plaintiff failed to establish that the two white employees she
identified as comparables were “similarly situated in all respects”. 964 F.2d at 583 (quoting Stotts
v. Memphis Fire Dep’t, 858 F.2d 289 (6th Cir. 1988)). Moreover, we found that plaintiff failed to
produce sufficient evidence of the seriousness of the comparable’s offenses. See Lanear v. Safeway
Grocery, 843 F.2d 298 (8th Cir. 1988) (holding that a plaintiff must demonstrate that he and the
comparable are similarly situated in all respects and that the other employee’s acts were of
comparable seriousness to his actions).
        In Ercegovich, the plaintiff alleged he was discriminated against based on his age, in
violation of the ADEA and Ohio’s age-discrimination laws, and was refused an offer to transfer to
another position. 154 F.3d at 348. Ercegovich was an employee of Defendant Goodyear Tire &

         3
           Jackson asserts that FedEx asserts for the first time on appeal that Jackson was terminated due to a reduction
in force. To the contrary, Jackson argues, at the time Jackson was terminated, FedEx was hiring employees and FedEx
argued that Jackson was not entitled to front pay due to job openings.
No. 06-5844           Jackson v. Federal Express Corp., et al.                                    Page 6


Rubber Co. (“Goodyear”) for twenty-two years prior to the elimination of his position, as a result
of a reduction in force (“RIF”), and the termination of his employment. Ercegovich claimed that
in comparison to other employees in the Human Resources Development Department, he was not
offered an opportunity to transfer within the company. The district court found that because
Ercegovich had a different job function than the two younger employees to whom he sought to be
compared, he could not establish a prima facie case. In overturning the grant of summary judgment
in Goodyear’s favor, we found that the district court failed to address the relevancy of the Mitchell
factors in relation to Ercegovich’s claim. We reasoned that “when an employer makes selective
offers of transfer following a reduction in force or a reorganization, differences in the job activities
previously performed by transferred and non-transferred employees do not automatically constitute
a meaningful distinction.” 154 F.3d at 353. Because the positions previously held by Ercegovich
and those he sought as comparables were all related human resources positions, we concluded
Ercegovich was similarly situated.
       Addressing the standard of “similarly situated,” we found that the district court applied an
“exceedingly narrow” interpretation of Mitchell and held that,
       Courts should not assume, however, that the specific factors discussed in Mitchell
       are relevant factors in cases arising under different circumstances, but should make
       an independent determination as to the relevancy of a particular aspect of the
       plaintiff’s employment status and that of the non-protected employee . . . the plaintiff
       and the employee with whom the plaintiff seeks to compare himself or herself must
       be relevant in ‘all of the relevant aspects.’
Id. at 352 (citing Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 802 (6th Cir. 1994)
(“The similarity between the compared employees must exist in all relevant aspects of their
respective employment circumstances.”). We determined that the appropriate test is to look at those
factors relevant to the factual context, as opposed to a requirement that a plaintiff demonstrate
similarity in all respects. Id. We further disapproved of a rigid standard of similarly situated that
only took account of job functions, noting,
       A prima facie standard that requires the plaintiff to demonstrate that he or she was
       similarly-situated in every aspect to an employee outside the protected class
       receiving more favorable treatment removes from the protective reach of the anti-
       discrimination laws employees occupying ‘unique’ positions, save in those rare cases
       where the plaintiff produces direct evidence of discrimination. . . . a plaintiff whose
       job responsibilities are unique to his or her position will never successfully establish
       a prima facie case . . .
Id. at 353 (emphasis in original).
         Jackson argues that if the narrow approach to the similarly situated standard applied by the
district court is upheld, FedEx would be free to discriminate against Jackson and other employees
because they have different job functions than other employees. Bart Dahmer, the current Director
of IT at FedEx testified that an employee could not receive a one in a category of the ECA based
solely on the task assigned. Based on this testimony, Jackson argues that it was improper for
Sherwood to rate Jackson a one in every category solely because of his position as a systems
administrator.
        Jackson argues that the district court’s finding that Jackson was not similarly situated to the
others in his workgroup was based mainly on his position as a system administrator, and the district
court erred in ignoring other aspects of the ECA, such as leadership, understanding of business
No. 06-5844            Jackson v. Federal Express Corp., et al.                                     Page 7


knowledge, initiative to engage in learning activities and technical knowledge. Jackson argues that
an application of Ercegovich to the instant facts lends itself to the following principle:
        When an employer prepares a document [ECA] that is to be applied to all employees
        in the organization, following a Resource Management IT Plan, differences in the job
        activities previously performed by employees do not automatically constitute a
        meaningful distinction that explains the employer’s differential treatment of the two
        employees regarding the ECA.
(Br. of Appellant at 49).
         FedEx argues that, although Jackson’s education, professional experience and training
demonstrate he had proficiency with computers, Jackson did not present evidence that he had the
ability to analyze functional specifications or write computer code in an object-oriented language,
which was critical to the PowerPad project. FedEx, pointing to the evidence presented at trial,
asserts that Jackson testified that, similar to his coworkers, he had programming experience,
however, he had not held a programming job for at least 30 years and only programmed in the late
1960's for three years in Assembly, a procedural programming language. All of the other employees
in Jackson’s workgroup had anywhere from 11 to 28 years of programming experience. Similarly,
although Jackson attended a course in C++, an object-oriented language, in 1994 and his peers did
not have formal training in C++, the other employees in Jackson’s workgroup programmed or
analyzed JAVA, an object-oriented language, during the two years prior.
        FedEx also argues that because Jackson specializes in systems administration work, while
the other individuals in his workgroup specialize in programming, the district court properly ruled
that Jackson is not similarly situated to the employees in his workgroup. FedEx points to McGrath
v. Lockheed Martin Corp., an unpublished opinion of the Sixth Circuit Court of Appeals. 2002 U.S.
App. LEXIS 21278 (6th Cir. October 9, 2002). As part of a RIF, management was required to assess
employees skills vis-a-vis organizational objectives. Similar to the ECA in the instant case,
management assessed employees based on various factors, including: possession of critical skills;
performance reviews; education/training; transferability of job skills; length of service with the
company; and time in the position. McGrath, 2002 U.S. App. LEXIS, at *10. McGrath was
identified as one of two candidates for layoff in his department “based solely on the lack of work
in the area of finite element analysis (“FEA”) which was the area of technical expertise that I
associated with McGrath.” Id. In affirming the district court’s dismissal of McGrath’s ADEA
claim, the panel concluded that McGrath was not discharged for an impermissible reason because,
although he had training and experience in the appropriate type of engineering work, he limited his
work in the three years prior and thus his skills were not as transferable as those of his peers.
McGrath, 2002 U.S. App. LEXIS, at *26. However, the panel’s discussion of plaintiff’s
qualifications in relation to those of his peers is in the court’s analysis of pretext. (“Plaintiff proffers
other evidence in an attempt to demonstrate a conflict in the reasons given for his layoff. . . . The
fact that FEA analysis work became available in August 1996, and that another engineer was asked
to perform 700 hours of FEA work within a month after plaintiff was discharged, does not undercut
that plaintiff was chosen for discharge because he limited his engineering work in the last three years
of his career solely to FEA.”). In the instant case, the district court had not reached the issue of
pretext and therefore McGrath is inapplicable.
         The evidence at trial shows that Jackson’s elimination was not the result of a RIF, but instead
the result of a workforce adjustment of FedEx’s IT Department under the FedEx Services IT
Resource Management Plan. Although Ercegovich and McGrath involve RIF’s, the reasoning is
nonetheless persuasive given that FedEx was also conducting a reorganization of departments. The
district court’s formulation of the similarly situated standard is exceedingly narrow. In discussing
No. 06-5844               Jackson v. Federal Express Corp., et al.                                              Page 8


the similarly situated standard, the district court recited the factors from Mitchell4 and then the
mandate, from Ercegovich, to apply only those factors relevant to the factual context. See also
McMillan, 450 F.3d at 413-14. However, rather than making a true independent determination of
the relevant factors, the district court relied on the ECA and FedEx’s argument that the short- and
long- term goal of the workgroup is the PowerPad project in deciding the focus of the inquiry.
FedEx’s argument that Jackson is not similarly situated, because his job function is not necessary
for the PowerPad project, is in fact the reason offered by FedEx in arguing that Jackson’s
termination was not a pretext for discrimination. The prima facie case inquiry into the relevant
skills and qualifications for each position by the district court was misplaced. The analysis is more
appropriate to determining whether FedEx’s legitimate non-discriminatory reasons for terminating
Jackson was pretext for discrimination.
           The prima facie showing requirement is not onerous, as mandated by the Supreme Court in
Burdine. 450 U.S. at 253. “The phrase ‘prima facie case’ not only may denote the establishment
of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the
plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue
. . . . [I]n the Title VII context we use ‘prima facie case’ in the former sense.” Id. at 254 n. 7. Here,
the district court impermissibly placed a burden of producing a significant amount of evidence in
order to establish a prima facie case. That burden is not appropriate at the prima facie state, but
rather is better suited for the pretext stage that occurs later. The purpose of Title VII and Section
1981 are not served by an overly narrow application of the similarly situated standard. The district
court’s formulation of factors in order to analyze Jackson’s prima facie evidence is too narrow and
restrictive. It was not proper for the district court judge to define the relevant factors based solely
upon narrow job functions and FedEx’s stated requirements for the PowerPad project. In effect, the
district court is requiring an exact correlation between the position of the employee prior to the ECA
and the requirements of the PowerPad project. The number of employees with whom Jackson could
be compared for purposes of establishing a comparable is relatively small. Jackson held a unique
position within the workgroup, as he was the only system administrator. The district court’s narrow
definition of similarly situated effectively removed Jackson from the protective reach of the anti-
discrimination laws. See Ercegovich, 154 F.3d at 353. The district court’s finding that Jackson had
no comparables from the six other employees in the PowerPad project deprived Jackson of any
remedy to which he may be entitled under the law.
                                               III. CONCLUSION
      The district court’s order of dismissal pursuant to Rule 50(a) is reversed and the matter
remanded for further proceedings consistent with this opinion.




         4
           Although the Mitchell factors have been found to apply primarily to the disciplinary context, it was not error
for the district court judge to cite these factors as “relevant considerations”. Ercegovich, 154 F.3d at 350-52.
No. 06-5844            Jackson v. Federal Express Corp., et al.                                   Page 9


                                          ________________
                                              DISSENT
                                          ________________
         ROGERS, Circuit Judge, dissenting. While I agree with the majority’s conceptual analysis
and its conclusion that the appellant established a prima facie case at trial, I would affirm the district
court on the alternative ground that FedEx demonstrated a legitimate, non-discriminatory reason for
Jackson’s termination, and that Jackson failed to show that reason to be a mere pretext for
discrimination.
        Even though FedEx received a directed verdict at the close of Jackson’s case, it is apparent
that each party had a full opportunity to present its evidence on the questions of whether there were
legitimate, non-discriminatory reasons for Jackson’s termination, and if so, whether those reasons
were merely a pretext for discrimination. Indeed, in its brief to this court, FedEx argued that it
should prevail even if Jackson were found to have established a prima facie case because it had
proven at trial that it had a legitimate, non-discriminatory reason for terminating Jackson. Likewise,
Jackson argued in his initial brief, and in his reply brief, that the evidence he presented at trial had
proven the appellee’s legitimate, non-discriminatory reason to be a pretext for discrimination. In
light of the facts that both parties briefed those issues to this court, and that both parties obviously
believe that they presented sufficient evidence at trial for the case to be decided on those issues, it
would not be improper for this court to base its decision on those grounds. See Carver v. Dennis,
104 F.3d 847, 849 (6th Cir. 1997).
         The legitimate, non-discriminatory reason behind Jackson’s termination is that he did not
have the necessary experience or skills to be of use to his workgroup, which was engaged in
designing and developing software for FedEx’s PowerPad project. That particular assignment was
both the short-term and the long-term project for the workgroup. It required experienced
programmers and business analysts who could design and develop software in C++, an object-
oriented programming language similar to JAVA. Compared to the other people in the workgroup,
Jackson did not have nearly the experience to be of assistance in the PowerPad project. Cathy Story,
for example, had eleven years of experience in computer programming, with significant experience
in JAVA programming; Virginia White had been a computer programmer for the previous 22 years;
Glen Parham had received training in C++ programming and had been a programmer for the
previous 28 years; Michael Griffith had a bachelor’s degree in electrical engineering and had been
a programmer for 27 years; James Morrison had a bachelor’s degree in computer science and had
been a programmer for 21 years; and Mary Brown had been developing software as either a
programmer or business analyst for the previous 30 years. Perhaps most importantly, each of these
individuals had programmed or analyzed JAVA during the two years prior to Jackson’s termination.
In short, these individuals had the skills and experience that the workgroup needed. Mr. Jackson,
on the other hand, did not. In contrast to the other individuals in the workgroup, Jackson had not
held a day-to-day programming job since the early-1970's, and his only experiences with object-
oriented programming were a four-day C++ class in 1994 and a three-day JAVA class in 1996. In
fact, he admitted in his trial testimony that he never programmed in C++ or JAVA after taking those
respective classes.
        Given Jackson’s lack of the requisite skills and experience, his termination was a legitimate,
non-discriminatory decision on the part of FedEx. Because Jackson has presented no evidence that
would allow an inference of discriminatory intent to be drawn from that decision, a jury could not
reasonably find that FedEx’s legitimate, non-discriminatory reason for terminating Jackson was a
pretext for discrimination. Accordingly, I would affirm on those grounds.
