                   United States Court of Appeals,

                          Eleventh Circuit.

                               No. 95-6922.

                  Darrell COMBS, Plaintiff-Appellee,

                                    v.

PLANTATION PATTERNS, Meadowcraft Company, and Sam Blount Company,
Inc., Defendants,

             Meadowcraft, Inc., Defendant-Appellant.

                              Feb. 20, 1997.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV94-T-103-E), Myron H. Thompson, Chief
Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

     CARNES, Circuit Judge:

     Meadowcraft, Inc. appeals from a judgment entered against it

pursuant to a jury verdict in favor of Darrell Combs in this Title

VII race discrimination case.        The jury found that Meadowcraft

denied Combs a supervisory position because of his race.               The

dispositive issue in the appeal is whether Combs produced evidence

sufficient   to   allow   a    reasonable     factfinder   to   disbelieve

Meadowcraft's proffered nondiscriminatory reasons for failing to

promote Combs.    We conclude that he did not, and that Meadowcraft

was entitled to judgment as a matter of law for that reason.

     Part I of this opinion is a discussion of the facts.          In Part

II, we summarize the procedural history of this case, followed by

a brief discussion of the standard of review in Part III. Our

discussion of the law and application of it to the facts is

contained in Part IV, which has four subparts.

     Subparts A through C of Part IV contain an explication of the
legal framework applicable to discrimination cases in light of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), and St. Mary's Honor Center v. Hicks, 509 U.S.

502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).        It is in those parts

of this opinion that we answer the dicta contained in the recent

panel opinion in Isenbergh v. Knight-Ridder Newspaper Sales, Inc.,

97 F.3d 436 (11th Cir.1996), which is critical of the holding in

Howard v. BP Oil Co.,     32   F.3d   520   (11th    Cir.1994),   and   by

implication, of a number of our other decisions in line with it.

Howard and those decisions like it hold that after a plaintiff has

established a prima facie case, evidence from which the factfinder

could find that all of the employer's proffered reasons for the

challenged job action are pretextual entitles the plaintiff to have

the factfinder decide the ultimate issue of discrimination.             We

answer the   Isenbergh panel's criticism of the Howard line of

decisions and explain why the holding of those cases is the law of

this circuit, as well as at least eight other circuits.

     Subpart D of Part IV applies the law to the facts of this

case, and Part V contains our conclusion.
                        I. BACKGROUND FACTS

     Meadowcraft owns and operates a manufacturing plant in Wadley,

Alabama. The plant produces outdoor patio furniture, which is sold

under the brand name "Plantation Patterns."     The plant's workforce

is divided into a number of departments, including materials,

forming, welding, painting, packing, and shipping. The departments

have various shifts, and there are supervisors for each shift.

     In January 1992, Meadowcraft hired Combs, who is black, to
work in the plant as a "crimp and form" operator.                                   Shortly

thereafter, Combs was promoted to "material handler" and given a

pay raise.      Combs was supervised by George Anderson and Edward

Lane.   Both    Anderson    and    Lane    are      black,     and    both       worked   as

supervisors in the plant's welding department.

     Shortly     after     Combs   started       working       at    Meadowcraft,         he

introduced himself to John Hart, the plant superintendent.                            Combs

told Hart that he had a degree in computer science from Alabama A

& M and that he was interested in doing office work that would

allow him to use his degree.            In June 1992, Hart made arrangements

with the plant manager for Combs to do a temporary assignment

programming     personal     computers         in    the     plant        and     preparing

spreadsheets.         At   some    point,        those       arrangements          included

reclassifying     Combs      to    be     a     plant      "lead      man"—meaning         a

quasisupervisor—even though he was not actually doing lead man work

or supervising anyone.        When Combs was nominally promoted to lead

man, his pay was increased.

     Prior to his pay raise, Combs held a second job as manager at

a low-income apartment complex at which he was responsible for

maintenance,     cleaning,      and     painting,       as    well    as        supervising

teenagers who did maintenance work at the complex.                          After Combs'

pay raise, he quit his second job.

     On    several     occasions,        when       Meadowcraft       officials        from

Birmingham headquarters visited the plant, Combs was asked to

"hide" from the officials.              At trial, Combs implied that he was

asked     to   hide   because      he     is    black,       but     he    admitted       on

cross-examination that he was never told that was the reason. Hart
testified that Combs was asked to hide because headquarters had not

approved his computer job, and that he had explained that to Combs.

       While Combs was assigned to the temporary computer project,

Hart asked him whether he would be interested in being a supervisor

at the plant.     Combs said that he was interested.          Although Combs

indicated an interest in supervisory positions in both the painting

and welding departments, he was awarded neither position.                  Both

positions were awarded to white persons.             At trial, Combs conceded

that    the   person   who   was   made   painting    supervisor   was    better

qualified than he, and Combs abandoned his discrimination claim

with respect to that position.            Meadowcraft's failure to promote

Combs    to    the     welding     supervisor    position    was    the    only

failure-to-promote claim that was submitted to the jury, and it is

the only claim in controversy in this appeal.

       Meadowcraft awarded the welding supervisor position to Fred

Walker in July 1992.         Walker served in that capacity for ten or

eleven days, but then was reassigned to work temporarily as a

supervisor in the packing department.           That temporary reassignment

lasted for about a year, after which Walker returned to his

position as a supervisor in the welding department.

       Around November 1992, after Combs had completed his temporary

computer assignment, he was asked to assist with a "bar code"

scanning project in the plant's packing department—where Walker was

then a temporary supervisor.              By December 1992, the scanning

project had been put on hold, and Hart told Combs that he had run

out of temporary assignments for him.            Hart suggested that Combs

return to his position as a material handler in the plant.                Combs
declined to return to his material handler job, and his employment

at Meadowcraft came to an end on December 18, 1992.1
                             II. PROCEDURAL HISTORY

       In    February     1993,   Combs   filed   a    charge   with     the   Equal

Employment         Opportunity    Commission    ("EEOC"),     alleging    unlawful

racial discrimination.            After receiving his right-to-sue letter
from the EEOC, Combs filed suit in the Middle District of Alabama,

alleging claims based on Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and on 42 U.S.C. § 1981.                 Combs sought
recovery under the following race discrimination theories:                       (1)

that Meadowcraft terminated him from his employment because of his

race;       (2) that Meadowcraft subjected him to impermissible racial

harassment;         and (3) that Meadowcraft denied him a supervisory

position because of his race.             Combs also appended a state law

claim for the tort of outrage, but the district court dismissed

that       claim   with   prejudice,   and     Combs   has   not   appealed     that

dismissal.

       Combs' three race discrimination claims were tried to a jury
on August 21-25, 1995. At trial, Meadowcraft proffered evidence in

support of three legitimate, nondiscriminatory reasons for its

decision to promote Walker instead of Combs.                 Those reasons were:

(1) Walker's superior welding experience;              (2) the recommendations

of supervisors Lane and Anderson;                 and (3) Walker's superior

       1
      Meadowcraft contends that Combs resigned voluntarily. In
his complaint and at trial, Combs contended that he was not
offered the option of returning to his job as material handler,
and that he was laid off or forced to quit. However, the jury
specifically rejected Combs' discriminatory termination claim,
and the only claim at issue on appeal is Combs'
failure-to-promote claim.
supervisory experience.       At trial, Meadowcraft moved for judgment

as a matter of law both at the close of the plaintiff's case and at

the close of all the evidence.          The district court denied those

motions, and the case was submitted to the jury.

     The     jury   unanimously     rejected     Combs'      discriminatory

termination claim, but could not reach a unanimous verdict on the

remaining two claims.         Thereafter, the parties agreed that the

remaining two claims could be decided by majority verdict.               The

jury by a majority vote determined that Combs had not proven his

claim for discriminatory harassment, but that he had proven his

claim that he was denied a supervisory position because of his

race.    The jury awarded Combs compensatory damages of $76,552 and

punitive damages of $42,700.

     After the jury returned its verdict, Meadowcraft renewed its

motion for judgment as a matter of law and made an alternative

motion for a new trial.       In support of those motions, Meadowcraft

argued (among other things) that Combs had failed to put forward

sufficient    evidence   to    permit    the   jury   to   disbelieve    the

nondiscriminatory    reasons     that   Meadowcraft    had   proffered    in

explanation of its decision to promote Walker to welding supervisor

instead of Combs. The district court denied both the principal and

alternative motions, and this appeal followed.2


     2
      On appeal, Meadowcraft contends that it is entitled to a
new trial, even if it is not entitled to judgment as a matter of
law. Meadowcraft asserts three grounds in support of that
contention: (1) insufficiency of the evidence; (2) prejudicial
admission of inadmissible evidence; and (3) excessive damages.
Because we conclude that Meadowcraft is entitled to judgment as a
matter of law, we do not discuss further Meadowcraft's arguments
in favor of a new trial.
                            III. STANDARD OF REVIEW

     We review de novo a district court's denial of a defendant's

renewed motion for judgment as a matter of law, applying the same

standards as the district court.               Sherrin v. Northwestern Nat'l
Life Ins. Co., 2 F.3d 373, 377 (11th Cir.1993).                    Those standards

require us to consider "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).              In conducting our review:

     [W]e consider all the evidence, and the inferences drawn
     therefrom, in the light most favorable to the nonmoving party.
     If the facts and inferences point overwhelmingly 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.

Carter   v.    City   of    Miami,    870   F.2d    578,    581   (11th    Cir.1989)
(footnotes omitted).

         Under the foregoing standard, the nonmoving party must

provide more than a mere scintilla of evidence to survive a motion

for judgment as a matter of law:               "[T]here must be a substantial

conflict      in   evidence   to     support    a   jury    question."       Id.   To

summarize, we must consider all the evidence in the light most

favorable to Combs and determine "whether or not reasonable jurors

could have concluded as this jury did based on the evidence

presented."        Quick v. Peoples Bank, 993 F.2d 793, 797 (11th

Cir.1993) (citation and internal quotation marks omitted).
 IV. WHETHER MEADOWCRAFT WAS ENTITLED TO JUDGMENT AS A MATTER OF
LAW

 A. The Issue—Once a Prima Facie Case Has Been Established, Does
Evidence Sufficient to Disprove All of the Employer's Proffered
Reasons Preclude Judgment as a Matter of Law for the Employer?

       Meadowcraft and Combs disagree both as to the applicable law
and the weight of the evidence.                Meadowcraft contends that it is

entitled to judgment as a matter of law because (1) Combs failed to

produce evidence sufficient to allow a reasonable factfinder to

disbelieve its proffered nondiscriminatory reasons for promoting

Walker instead of Combs, and (2) even if Combs had produced such
evidence, he still failed to present evidence that discrimination

was the true reason for the decision. According to Meadowcraft, it

is entitled to judgment as a matter of law even if a reasonable

factfinder        could       have     rejected     each    of     its      proffered

nondiscriminatory reasons for promoting Walker instead of Combs,

because Combs had the additional burden of demonstrating that

Meadowcraft's decision was motivated by racial animus.                      For that
proposition, Meadowcraft relies primarily on Walker v. NationsBank

of Florida, 53 F.3d 1548 (11th Cir.1995), and dicta contained in

this    circuit's     recent        decision   in   Isenbergh    v.    Knight-Ridder

Newspaper Sales, Inc., 97 F.3d 436 (11th Cir.1996).

       Combs takes issue with Meadowcraft's view of the law and the

evidence.      First, Combs contends that he put forward sufficient

evidence     to      permit     a     reasonable    factfinder        to   disbelieve

Meadowcraft's proffered nondiscriminatory reasons for its decision,

and    he   argues    that    no     further   evidence    of    discrimination    is

required for the jury's verdict to be sustained.                       Combs relies

primarily on this Court's decision in Howard v. BP Oil Co., 32 F.3d
520 (11th Cir.1994), as well as the Supreme Court's landmark

decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113

S.Ct. 2742, 125 L.Ed.2d 407 (1993).           Alternatively, Combs contends

that       he   put    forward      sufficient       additional   evidence        of

discriminatory        intent   to   support    the    jury's   verdict—even      if

rejection of Meadowcraft's proffered nondiscriminatory reasons were

not enough, when coupled with his prima facie case, to support a

finding of discrimination.3

       We turn first to the parties' legal arguments.                  In light of

the    parties'   differing      views   of   the    law   governing    Title   VII

discrimination claims that rely on circumstantial evidence, and the

arguments that the parties make in support of those views, we think

it appropriate to examine the applicable law in some detail.                    Such

a review is especially appropriate in light of the                       Isenbergh

panel's recent observation in dicta that, "some confusion exists in

the law of this circuit about whether Hicks always precludes

judgments as a matter of law for employers whenever there is a

plausible basis on which to disbelieve the employer's proffered

reason for the employment decision in question," 97 F.3d at 442.

       We believe that any confusion about this question in our

circuit's law—defined by holdings, not dicta—is limited, and we


       3
      According to Combs' alternative theory, the jury's verdict
is supported by evidence that Meadowcraft had no established
criteria for promotion to supervisor and only two out of twelve
plant supervisors were black. We reject that theory without
detailed discussion, because the evidence offered to support it
was undeveloped and without analytic foundation. See, e.g.,
Brown v. American Honda Motor Co., 939 F.2d 946, 952-53 (11th
Cir.) (noting that statistics without analytic foundation are
"virtually meaningless"), cert. denied, 502 U.S. 1058, 112 S.Ct.
935, 117 L.Ed.2d 106 (1992).
hope that our discussion will limit that confusion even more.                      As

we will discuss, there is a substantial line of cases in this

circuit    that   adequately       and    accurately     sets    forth   the     legal

principles governing the nature and quantum of evidence necessary

to permit a jury to infer discrimination.                Before turning to those

cases, however, we will review briefly the basic legal framework

governing discrimination cases that are based on circumstantial

evidence.

  B. The Basic Framework Governing Discrimination Cases Based on
Circumstantial Evidence

        Despite a Title VII plaintiff's failure to present direct

evidence of discrimination, he may nevertheless present sufficient

circumstantial         evidence    of    discrimination     to     create    a   jury

question.         In     evaluating      Title    VII     claims    supported      by

circumstantial         evidence,    we    use    the    now-familiar        framework

established by the United States Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

and Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).                 Under that framework, the

plaintiff has the initial burden of establishing a prima facie case

of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at

1824;     Burdine, 450 U.S. at 253-54 & n. 6, 101 S.Ct. at 1093-94 &

n. 6.

     Establishment of the prima facie case in effect creates a
     presumption that the employer unlawfully discriminated against
     the employee. If the trier of fact believes the plaintiff's
     evidence, and if the employer is silent in the face of the
     presumption, the court must enter judgment for the plaintiff
     because no issue of fact remains in the case.

Burdine, 450 U.S. at 254, 101 S.Ct. at 1094 (footnote omitted).
         The effect of the presumption of discrimination created by

establishment of the prima facie case is to shift to the employer

the burden of producing legitimate, nondiscriminatory reasons for

the challenged employment action.         McDonnell Douglas, 411 U.S. at

802, 93 S.Ct. at 1824;          Burdine, 450 U.S. at 254, 101 S.Ct. at

1094.    To satisfy that burden of production, "[t]he defendant need

not persuade the court that it was actually motivated by the

proffered reasons.         It is sufficient if the defendant's evidence

raises a genuine issue of fact as to whether it discriminated

against the plaintiff."        Burdine, 450 U.S. at 254-55, 101 S.Ct. at

1094     (citation   and    footnote   omitted).     "[T]o   satisfy     this

intermediate 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 (emphasis

added).

         If a defendant carries its burden of producing legitimate,

nondiscriminatory reasons for its decision, the presumption of

discrimination created by the McDonnell Douglas framework "drops

from the case," and "the factual inquiry proceeds to a new level of

specificity."    Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. at 1094-

95 & n. 10. However, elimination of the presumption does "not imply

that the trier of fact no longer may consider evidence previously

introduced to establish a prima facie case."         Id. at 255 n. 10, 101

S.Ct. at 1095 n. 10. As the Supreme Court has explained:

        A satisfactory explanation by the defendant destroys              the
        legally mandatory inference of discrimination arising from        the
        plaintiff's initial evidence. Nonetheless, this evidence          and
        inferences properly drawn therefrom may be considered by          the
       trier of fact on the issue of whether the defendant's
       explanation is pretextual. Indeed, there may be some cases
       where the plaintiff's initial evidence, combined with
       effective cross-examination of the defendant, will suffice to
       discredit the defendant's explanation.

Id.

         Once    a     defendant     satisfies       its    intermediate      burden    of

production,       and       the     initial   presumption        of     discrimination

accompanying         the    prima    facie    case    has     been    eliminated,      the

plaintiff       has    the    opportunity      to     discredit       the    defendant's

proffered explanations for its decision.                    According to the Supreme

Court:

       [The plaintiff] now must have the opportunity to demonstrate
       that the proffered reason was not the true reason for the
       employment decision.... [The plaintiff] may succeed in this
       either directly by persuading the court that a discriminatory
       reason more likely motivated the employer or indirectly by
       showing that the employer's proffered explanation is unworthy
       of credence.

Id. at 256, 101 S.Ct. at 1095 (emphasis added) (citation omitted).

In other words, the plaintiff has the opportunity to come forward

with     evidence,         including    the    previously        produced       evidence

establishing         the    prima    facie    case,        sufficient   to    permit    a

reasonable factfinder to conclude that the reasons given by the

employer were not the real reasons for the adverse employment

decision.       Id.;       McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at

1825.

 C. The Effect of Evidence Sufficient to Permit Rejection of the
Employer's Proffered Nondiscriminatory Reasons
                      1. The Supreme Court's Hicks Opinion

       The framework for evaluating discrimination cases based on

circumstantial evidence, which we have just discussed, had been

established for some time when the Supreme Court decided St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d

407 (1993).      Before the Hicks decision, however, the circuits had

split over the effect of a decision by the factfinder that the

proffered nondiscriminatory reasons given by the employer were not

the real reasons for its employment decision. Some of the circuits

had held that a finding of pretext mandated a finding of illegal

discrimination, while others had held that a finding of pretext did

not.    See Hicks, 509 U.S. at 512-13, 113 S.Ct. at 2750 (listing

cases).    The divergent views of the circuits on the effect of a

finding of pretext prompted the Supreme Court to grant certiorari

in Hicks to resolve the question.          Id. at 512, 113 S.Ct. at 2750.

       In Hicks, the plaintiff had brought a Title VII lawsuit,

alleging he had been demoted and discharged because of his race.

Id. at 505, 113 S.Ct. at 2746.             After a full bench trial, the

district court found for the defendant, despite its finding that

the reasons the defendant gave for its actions were not the real

reasons for the plaintiff's demotion and discharge.              Id. at 508,

113 S.Ct. at 2748.       The Eighth Circuit reversed, holding that once

the plaintiff had discredited all of the employer's proffered

nondiscriminatory reasons for its decision, the plaintiff was

entitled to judgment as a matter of law.             Id. The Supreme Court

reversed   the    Eighth   Circuit   and     held   that   judgment   for   the

plaintiff was not compelled by rejection of all of the employer's

proffered nondiscriminatory reasons.            Id. at 511, 113 S.Ct. at

2749.

        Although the Supreme Court in Hicks rejected the position

that    disbelief   of    the   employer's    proffered reasons       requires
judgment for the plaintiff, the Court was careful to explain that

such disbelief, in tandem with the plaintiff's prima facie case, is

sufficient to permit the factfinder to infer discrimination.                 The

Court said:

     The factfinder's disbelief of the reasons put forward by the
     defendant (particularly if disbelief is accompanied by a
     suspicion of mendacity) may, together with the elements of the
     prima facie case, suffice to show intentional discrimination.
     Thus, rejection of the defendant's proffered reasons will
     permit the trier of fact to infer the ultimate fact of
     intentional discrimination, and the Court of Appeals was
     correct when it noted that, upon such rejection, "[n]o
     additional proof of discrimination is required."

Id. at 511, 113 S.Ct. at 2749 (quoting Hicks v. St. Mary's Honor

Ctr., 970 F.2d 487, 493 (8th Cir.1992)) (footnote omitted) (second

emphasis added).    That is a pretty clear statement.

     Four justices dissented in Hicks, but none of them did so

because they thought that rejection of an employer's proffered

nondiscriminatory reasons, together with the prima facie case, is

insufficient to permit the factfinder to infer the ultimate fact of

intentional    discrimination.         To   the   contrary,   the   dissenting

justices would have gone even further than the majority did.                They

would have affirmed the Eighth Circuit's holding that once the

factfinder rejects the employer's explanations for its decision, a

finding   of   discrimination     is   required,     and   the   plaintiff    is

"entitled to judgment."        See Hicks, 509 U.S. at 532-33, 113 S.Ct.

at 2760-61 (dissenting opinion of Souter, J., joined by White,

Blackmun, and Stevens, JJ.).

      Based on the Supreme Court's clear statement in the majority

opinion   in   Hicks,   read    together     with   the    rationale   of    the

dissenting justices, we understand the Hicks Court to have been
unanimous that disbelief of the defendant's proffered reasons,

together with the prima facie case, is sufficient circumstantial

evidence to support a finding of discrimination.          Therefore, it

follows from Hicks that a plaintiff is entitled to survive summary

judgment, and judgment as a matter of law, if 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 action.      With one exception, which we will discuss

later, up until the Isenbergh opinion, not only the holdings but

also the statements of this Court have been entirely consistent

with that understanding of the Hicks decision.
   2. The Post-Hicks Case Law in this Circuit Before Isenbergh

     Just a few months after the Supreme Court decided Hicks, we

were called upon to apply it in Hairston v. Gainesville Sun

Publishing Co., 9 F.3d 913 (11th Cir.1993).          In    Hairston, a

terminated   employee   sued   his   former   employer,   alleging   age

discrimination and retaliatory termination.4       The district court

granted summary judgment for the employer.      We reversed.   In doing

so, we explained that, under Hicks, if the employer carries its

burden of production (by articulating legitimate reasons for the

action), the plaintiff must demonstrate "that the proffered reason

     4
      Although Hairston was an age discrimination case brought
under the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq., and not under Title VII, "[t]he Eleventh
Circuit has adapted to issues of age discrimination the
principles of law applicable to cases arising under the very
similar provisions of Title VII." Hairston, 9 F.3d at 919 (citing
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)).
Indeed, the Isenbergh panel opinion, which we discuss infra in
some detail, acknowledges that the Title VII burden-shifting
framework of McDonnell Douglas and Burdine also applies to age
discrimination cases. See Isenbergh, 97 F.3d at 440.
was not the true reason for the employment decision."                  Id. at 919

(quoting Hicks, 509 U.S. at 508, 113 S.Ct. at 2747) (internal

quotation marks omitted).           Following the   Hicks rule, we did not

hold that additional proof of discrimination would be required at

trial.    Instead, we explained:

          The plaintiff may succeed by directly persuading the
     court at trial that a discriminatory reason more likely
     motivated the employer or indirectly by showing that the
     employer's proffered explanation is unworthy of credence. In
     order to establish pretext, the plaintiff is not required to
     introduce evidence beyond that already offered to establish
     the prima facie case.

            ....

          [P]laintiff's burden at summary judgment is met by
     introducing evidence that could form the basis for a finding
     of facts, which when taken in the light most favorable to the
     non-moving party, could allow a jury to find by a
     preponderance of the evidence that the plaintiff has
     established pretext....

Id. at 920-21 (citations omitted) (emphasis added).                Because the

plaintiff in Hairston had submitted sufficient evidence to permit

the factfinder to find that the employer's proffered reasons were

pretextual, we held it was error for the district court to grant

summary judgment.      Id. at 921.

         Thus Hairston, our first decision on this issue following

Hicks, clearly held that one 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.            However, as we explained

in Hairston, once the plaintiff introduces evidence sufficient to

permit    the    factfinder    to   disbelieve    the    employer's    proffered
explanations,      summary    judgment          is    not     appropriate,     because

"[i]ssues of fact and sufficiency of evidence are properly reserved

for the jury."     Id. at 921.          We said nothing in Hairston about the

plaintiff being required to establish anything more than a prima

facie case plus the falsity of the tendered explanations;                      we said

nothing about anything else being required for the plaintiff to

avoid summary judgment, because nothing else is required.

      In Batey v. Stone, 24 F.3d 1330 (11th Cir.1994), we were again

called upon to apply the Hicks rule, this time in the context of

sex discrimination.      In       Batey, we recognized that under Hicks,

evidence     demonstrating        the    incredibility         of   the    employer's

proffered explanations is not, standing alone, enough to "compel

judgment for the plaintiff."             Id. at 1334 n. 12 (emphasis added)

(citation and internal quotation marks omitted).                    Nevertheless, we

held that such evidence is sufficient to satisfy the plaintiff's

burden in responding to a summary judgment motion, because Hicks

permits the trier of fact to base a finding of discrimination on

rejection of the employer's proffered nondiscriminatory reasons,

taken together with the plaintiff's prima facie case. Id. at 1334.

Because the plaintiff in Batey had produced sufficient evidence for

the   factfinder    to   disbelieve           the    reasons    that   the    employer

proffered for the employment decision, we reversed the district

court's grant of summary judgment for the employer.                       Id. at 1335-

36.   Consistent with our         Hairston precedent, and with Hicks, we

held that evidence of pretext, when added to a prima facie case, is

sufficient    to   create     a   genuine       issue    of    material      fact   that

precludes summary judgment.             Id.
       Batey was followed closely by our decision in Howard v. BP Oil

Co., 32 F.3d 520 (11th Cir.1994).            In    Howard, we reversed the

district court's grant of summary judgment for the defendant where

there was sufficient evidence to permit the factfinder to reject

the    defendant's    proffered    reasons      for     awarding    gas    station

dealerships to white and Asian dealers instead of to the plaintiff,

who was black.        We explained the effect of that evidence as

follows:

            [Hicks ] holds that proof that a defendant's articulated
       reasons are false is not proof of intentional discrimination;
       it is merely evidence of intentional discrimination. However,
       evidence of intentional discrimination is all a plaintiff
       needs to defeat a motion for summary judgment. That evidence
       must be sufficient to create a genuine factual issue with
       respect to the truthfulness of the defendant's proffered
       explanation.

Id. at 525 (emphasis in original).          In Howard, as in Hairston and

Batey, we held that summary judgment was inappropriate because,

taken together with the plaintiff's prima facie case, "the fact

finder's   rejection     of   [the]    defendant's      proffered     reasons    is

sufficient circumstantial evidence upon which to base a judgment

for the plaintiff."      Id. at 527.

       We again addressed application of the Hicks rule in Cooper-

Houston v. Southern Railway Co., 37 F.3d 603 (11th Cir.1994).                   In

that case, we reversed the district court's grant of summary

judgment in favor of an employer where the evidence was sufficient

to    permit   the   factfinder   to   reject     the    employer's       proffered

explanation for its employment decision.                 We explained that in

order to avoid summary judgment, "[the plaintiff] was ... obligated

to present evidence that [the employer's] legitimate reasons were

not what actually motivated its conduct," and we held that the
plaintiff had met that obligation. Id. at 605 (citations omitted).

The   plaintiff's    pretext    evidence   in    Cooper-Houston   included

evidence that the employer had made racially derogatory remarks in

the workplace, so it was unnecessary to discuss whether summary

judgment would have been inappropriate even if the plaintiff's

pretext   evidence     itself    had   not      been   racially   charged.

Significantly, however, we did not say that evidence of racially

prejudiced attitudes was required for proof of pretext, even though

such evidence was present in that case.         Therefore, Cooper-Houston

represents our fourth post-Hicks decision on this issue, all

consistently establishing the law of this circuit that a prima

facie case plus evidence permitting disbelief of the employer's

proffered reasons equals the plaintiff's entitlement to have the

factfinder decide the ultimate issue of discrimination. So far, so

good.   But then came the incongruent Walker decision.

      In Walker v. NationsBank of Florida, 53 F.3d 1548 (11th

Cir.1995), a panel of this Court affirmed the grant of judgment as

a matter of law in favor of the employer in an age and sex

discrimination case, even though the plaintiff had established a

prima facie case and had put on evidence sufficient to permit the

factfinder to disbelieve all of the employer's proffered reasons

for the adverse employment action.         Id. at 1556-58.   Despite that

evidence, the Walker panel said that "Walker did not produce

evidence that raised a suspicion of mendacity sufficient to permit

us to find on this record that the bank intentionally discriminated

against her on the basis of age and/or sex."            Id. at 1558.   For

that reason, the panel concluded that "[r]easonable and fair-minded
persons, in the exercise of impartial judgment, would not conclude

that the bank had discriminated against [the plaintiff] on the

basis of her age or sex."    Id.

     In a concurring opinion, Judge Johnson accurately noted that

the majority had exceeded its proper role by "deciding whether

evidence   of   pretext   supports    an   inference   of   intentional

discrimination," a task that requires credibility determinations

and the weighing of evidence—which is the jury's function.       Id. at

1563 (Johnson, J., concurring).      As Judge Johnson pointed out, 53

F.3d at 1561-62, the majority's reasoning was not consistent with

the teaching of Hicks, or with our decisions in Howard and Batey.

Judge Johnson agreed with the result in Walker only because, in his

view, the evidence was not sufficient to permit a factfinder to

reject the employer's proffered reasons for its action.         Id. at

1564-65.

      As we have recognized before, "no one is perfect, least of

all federal appellate judges, and from our mistakes and oversights

spring inconsistent decisions which we must deal with as best we

can." United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993).

The Walker decision is a mistake.     Not only is Walker inconsistent

with the Supreme Court's clear instruction in Hicks, but it is also

inconsistent with the holdings of our Hairston, Batey, Howard, and

Cooper-Houston decisions.     Where there are inconsistent panel

decisions, "the earliest panel opinion resolving the issue in

question binds this circuit until the court resolves the issue en

banc." United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir.1994)

(quoting Clark v. Housing Auth. of Alma, 971 F.2d 723, 726 n. 4
(11th Cir.1992)).          Our next decision on the issue at hand is

consistent    with   that    principle,       because   it    followed     the    law

established    in    the    earlier      decisions   instead    of   the    Walker

decision.

     In Richardson v. Leeds Police Department, 71 F.3d 801 (11th

Cir.1995), we reversed the district court's entry of judgment as a

matter of law in a racial discrimination case, after the close of

all the evidence, because the evidence was sufficient to permit a

jury to disbelieve the employer's proffered reasons for its adverse

employment decision.         In reviewing the law applicable to these

cases, we cited Hicks and explained:

     If the defendant meets this burden [of proffering a
     nondiscriminatory reason for its decision], the plaintiff must
     then have the opportunity to persuade the trier of fact,
     through   the  presentation    of   his  own   case   and   by
     cross-examining the defendant's witnesses, that the reason
     proffered was not the real basis for the decision, but a
     pretext for discrimination.

Richardson, 71 F.3d at 806 (emphasis added). Of course, persuading

the trier of fact "that the proffered reason was not the real basis

for the decision" is pointless unless that trier of fact is then

permitted to make the inference, which Hicks permits, that the

disbelieved    reason       is   "but     a   pretext   for    discrimination."

Therefore,    the    fact    that   "a    reasonable    jury   could     ...     have

concluded that [the employer's proffered explanation] was not the

true reason he was not rehired," precluded entry of judgment as a

matter of law in Richardson, 71 F.3d at 807.                   That holding, of

course, is inconsistent with            Walker, but is consistent with the

binding precedents of Hicks, Hairston, Batey, Howard, and Cooper-
Houston.5

       To summarize, with the exception of Walker, which is an

anomaly, this circuit's post-Hicks decisions uniformly hold that

once a plaintiff has established a prima facie case and has put on

sufficient       evidence    to   allow    a   factfinder   to   disbelieve     an

employer's proffered explanation for its actions, that alone is

enough      to   preclude    entry    of   judgment    as   a   matter   of    law.

Nevertheless, that well-established rule of law was recently called

into question in dicta contained in Isenbergh v. Knight-Ridder

Newspaper Sales, Inc., 97 F.3d 436 (11th Cir.1996).
                             3. The Isenbergh Dicta

       In Isenbergh, a former employee brought an Age Discrimination

in   Employment     Act     lawsuit   against    his   former    employer     when,

following a merger, the employee was not awarded a new managerial

position. Id. at 438. The district court granted summary judgment

for the employer, and a panel of this Court affirmed.                       In its

opinion, the Isenbergh panel criticized the interpretation of Hicks

established by our Howard decision and questioned whether it

represents a "correct statement of the law." Isenbergh, 97 F.3d at

443.       Noting that the     Walker decision is out of line with the

reasoning of Howard, the panel said that "[s]ome confusion exists


       5
      Trotter v. Board of Trustees, 91 F.3d 1449 (11th Cir.1996),
is not inconsistent with our post-Hicks line of precedents
properly applying the Hicks standard. In Trotter, the district
court directed a verdict for the defendant at the close of all
the evidence. We affirmed, because the defendant had proffered
legitimate, nondiscriminatory reasons for its actions, and at the
close of all the evidence, those reasons "remain[ed] unrebutted."
Id. at 1457. In other words, the plaintiffs failed to produce
evidence sufficient to allow a reasonable factfinder to
disbelieve those reasons.
in the law of this circuit about whether Hicks always precludes

judgments as a matter of law for employers whenever there is a

plausible basis on which to disbelieve the employer's proffered

reason for the decision in question."           Isenbergh, 97 F.3d at 442.

The panel concluded its critique of Howard by noting its "fear that

what       Howard   says   about   sufficient   evidence   is   a   mistake."

Isenbergh, 97 F.3d at 442.6

       Although the Isenbergh panel opinion criticized our Howard

decision's application of the Hicks standard, the actual decision

in Isenbergh was in harmony with it.            As the panel explained, it

affirmed the district court's grant of summary judgment in favor of

the employer, because its "examination of the record here indicates

that Isenbergh failed in creating an issue of fact about the

disbelievability of the employer's reason for the hiring decision."

Isenbergh, 97 F.3d at 443-44.         Therefore, the Isenbergh holding, as

distinguished from its dicta, is consistent with Hicks, and with

our post-Hicks precedents properly applying the Hicks standard.

See, e.g., New Port Largo, Inc. v. Monroe County,           985 F.2d 1488,

1500 (11th Cir.) (Edmondson, J., concurring) (emphasizing that "for

law-of-the-circuit purposes, a study of [case law] ought to focus

far more on the judicial decision than on the judicial opinion"),

cert. denied, 510 U.S. 964, 114 S.Ct. 439, 126 L.Ed.2d 373 (1993).

Nevertheless, the ideas and critiques advanced by Isenbergh 's




       6
      As we have explained in the previous section of this
opinion, Howard followed and was entirely consistent with the
holdings of our earlier decisions in Hairston and Batey. The
Isenbergh opinion mentions Batey, but not Hairston.
dicta are worthy of some discussion.7
     First,    we   believe   that   a     chronological     review   of   our

post-Hicks case law, see supra Part IV.C.2, ought to dispel any

"confusion [that] exists in the law of this circuit about whether

Hicks always precludes judgments as a matter of law for employers

whenever there is a plausible basis on which to disbelieve the

employer's    proffered   reason     for    the   decision    in   question."

Isenbergh, 97 F.3d at 442.

         Second, we hope that the Isenbergh opinion will not be read


     7
      In Part IV.D, infra, we conclude that in this case the
evidence was insufficient to create a genuine issue of material
fact as to one of Meadowcraft's proffered reasons for not
promoting Combs. We realize, of course, that that holding makes
our response to Isenbergh 's dicta itself dicta. Instead of
defending our use of dicta with the cliché about it sometimes
being necessary to fight fire with fire, we will rely on our
recent acknowledgment that "[d]icta can sometimes be useful when
it contains a persuasive analysis." McNely v. Ocala Star-Banner
Corp., 99 F.3d 1068, 1077 (11th Cir.1996). We leave it to the
reader to determine whether that condition is met in this
instance.

          The concurring opinion in this case states that "[t]he
     legal principles that control this dispute are familiar and
     do not require extended explication." It then goes on to
     list as one of these "familiar" principles the proposition
     that under the McDonnell Douglas framework, the plaintiff
     may shoulder the burden of convincing the factfinder that a
     discriminatory reason motivated the employment action
     "either directly by persuading the factfinder that a
     discriminatory reason motivated the employer or indirectly
     by showing that the employer's proffered explanation is
     unworthy of credence." That principle was not so familiar
     to the Isenbergh panel, which went to some length to state
     its views to the contrary.

          We make no apologies for attempting to clarify this
     area of the law, or at least to illuminate the difference of
     opinion which exists among some members of this Court
     concerning it. Unless and until the issue is presented in a
     dispositive fashion by the facts of some future case, which
     will provide an opportunity for the en banc court to settle
     the matter, that is all we can do.
to   call into question the binding authority of our        Howard,

Hairston, and Batey precedents.   While recognizing the "ostensible

conflict"8 between Howard and Walker, the Isenbergh opinion states
that "[w]e suspect ... that [Walker v.] NationsBank, not Howard, is

the more correct statement of the law."   Isenbergh, 97 F.3d at 443;

see also id. at 444 ("even if Howard is and ought to be the law").

Of course, once a panel of this Court has decided the issue,

questions about whether a different view of the matter might be

"more correct" are rendered academic insofar as subsequent panels

are concerned.   Stated somewhat differently, unless and until an

issue is addressed by the en banc Court, the Supreme Court, or

Congress, the first panel decision on it is, by definition, "more

correct" than any subsequent panel decisions.     That is what our


      8
      In a footnote, the Isenbergh opinion refers to "the
possibility" that the "ostensible conflict" between Walker and
Howard might be reconciled on the grounds that Howard is a Rule
56 (summary judgment) case, whereas Walker is a Rule 50 (judgment
as a matter of law) case. Isenbergh, 97 F.3d at 443 n. 4. We are
unpersuaded by that suggested distinction. Rule 56 and Rule 50
are both concerned with judgment as a matter of law—either before
the trial begins or after. Compare Fed.R.Civ.P. 56 with
Fed.R.Civ.P. 50. As the Supreme Court has instructed us, "the
inquiry under each is the same: 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). Isenbergh
's suggested reconciliation of Walker and Howard would set up
differing substantive liability standards for judgment as a
matter of law in discrimination cases, depending entirely upon
the timing of the related motion. We know of no authority for
making such a change in the law, and we believe Anderson squarely
prohibits it.

           The reality of the situation is that Walker is
      irreconcilably out of step with this circuit's precedents.
      See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 n. 4
      (11th Cir.1996) (acknowledging that "an apparent conflict
      exists within this circuit on the issue").
prior precedent rule, upon which much of the rule of law in this

circuit depends, is all about.

      Because the Walker decision was preceded by a number of

earlier Eleventh Circuit decisions holding that a jury question is

created when a prima facie case is coupled with evidence sufficient

to permit a reasonable factfinder to disbelieve an employer's

proffered   reasons   for   the   challenged   action,   those   earlier

decisions remain binding on this Court, and all panels of it.

They, and not Walker or Isenbergh, state what has been and will be

the law of this circuit unless and until the en banc Court, the

Supreme Court, or Congress changes it. See, e.g., United States v.

Dailey, 24 F.3d 1323, 1327 (11th Cir.1994); Clark v. Housing Auth.

of Alma, 971 F.2d 723, 726 n. 4 (11th Cir.1992).

     Finally, the Isenbergh opinion sets up a reductio ad absurdum

that bears further examination:

          Assume the following situation by way of example.       A
     defendant sues, alleging he was terminated based on his
     membership in a protected class. The employer responds with
     a neutral reason for the hiring decision: the employee was
     terminated because he was late nine times.      After a bench
     trial, the judge finds, among other facts, that the defendant
     was late not nine, but seven times. Relying on          Hicks,
     however, the judge determines that this case is one where the
     employer's reason should be disbelieved, but where application
     of discrimination law to the instant facts (including
     disbelievability) nonetheless supports a judgment for the
     employer. This result is the one specifically authorized by
     Hicks. See 509 U.S. at 508-11, 113 S.Ct. at 2748-49.

          The issue in Howard and [Walker v. ]NationsBank and the
     issue alluded to in the original panel opinion here is
     essentially this one:     might there be a case where the
     application of law to facts can proceed in a similar way, but
     at the summary judgment stage or for the purposes of judgment
     as a matter of law?     To continue with the prior example,
     suppose the employer offers the nine-latenesses explanation,
     and the record in a jury trial shows that no reasonable jury
     could find but that the plaintiff was late only seven times.
     Assuming the employee made out a bare prima facie case and
     nothing else points to discrimination, may the employer—at
     least, sometimes—be entitled to a judgment as a matter of law
     even though the jury could (indeed, must) disbelieve the
     employer's stated reason? The Howard panel, reading Hicks,
     seems to say "no."

            We suspect, however, that the answer is "yes"....

Isenbergh, 97 F.3d at 442-43.

     The     real    answer   is   that   in   the   Isenbergh      opinion's

hypothetical,       the   nondiscriminatory    reason   proffered    by   the

employer for its actions is excessive            lateness, not that the

employee was late exactly a specific number of times, no more and
no less.    In the hypothetical, there is a conflict only between the

precise number of times the employer said the employee was late,

and the actual number of times the employee was late.         But there is

no conflict about the employee's being late an excessive number of

times.     The issue upon which judgment as a matter of law turns is

whether the employer's proffered nondiscriminatory reason for its

action, excessive lateness, may reasonably be disbelieved, not

whether the employee was late nine times as opposed to seven.9

     9
      By treating the employer's proffered nondiscriminatory
reason as a specific number of "latenesses," instead of excessive
lateness, the hypothetical also makes the same sort of analytical
error that the Supreme Court identified and addressed in Hicks
itself:

            These statements imply that the employer's "proffered
            explanation," his "stated reasons," his "articulated
            reasons," somehow exist apart from the record—in some
            pleading, or perhaps in some formal, nontestimonial
            statement made on behalf of the defendant to the
            factfinder. ("Your honor, pursuant to McDonnell Douglas
            the defendant hereby formally asserts, as its reason
            for the dismissal at issue here, incompetence of the
            employee.") Of course it does not work like that. The
            reasons the defendant sets forth are set forth "through
            the introduction of admissible evidence." Burdine, 450
            U.S. at 255, 101 S.Ct. at 1094.
       In the hypothetical set up in the Isenbergh opinion, there is

no evidence to discredit the employer's explanation that the

defendant was fired for excessive lateness; the defendant's reason

for its action remains unrebutted.             So, the employer would be

entitled to judgment as a matter of law under Hicks, 509 U.S. at

515-18, 113 S.Ct. at 2751-53 (discussing plaintiff's burden of

discrediting the defendant's explanations), and under all of our

prior decisions, including Hairston, Batey, and Howard.
            4. The Post-Hicks Case Law in Other Circuits

       Eight other circuits have considered the issue and interpreted

Hicks to mean exactly what we have interpreted it to mean—that

evidence    sufficient     to    discredit      a    defendant's    proffered

nondiscriminatory reasons for its actions, taken together with the

plaintiff's prima facie case, is sufficient to support (but not

require) a finding of discrimination.          That is the law not only in

this   circuit,   but   also    in   the   Second,   Third,   Fourth,   Sixth,

Seventh, Eighth, Ninth, and District of Columbia Circuits.               See,

e.g., EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) ("A

finding of pretextuality allows a juror to reject a defendant's

proffered reasons for a challenged employment action and thus

permits the ultimate inference of discrimination.");               Sheridan v.


       Hicks, 509 U.S. at 522-23, 113 S.Ct. at 2755 (emphasis
       omitted).

            Because the employer is required to proffer its
       explanation not by a mere assertion, but by the introduction
       of admissible evidence, the hypothetical's assumption that
       the employer somehow "offers the nine-latenesses
       explanation" when the overwhelming weight of the evidence is
       that the employee was late only seven times, is unrealistic.
       As the Supreme Court said in Hicks, "[I]t does not work like
       that." Id. at 523, 113 S.Ct. at 2755.
E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1066-67 (3d Cir.1996)

(en banc) ("[T]he elements of the prima facie case and disbelief of

the defendant's proffered reasons are the threshold findings,

beyond which the jury is permitted, but not required, to draw an

inference        leading   it     to    conclude    that   there   was   intentional

discrimination.");10            Mitchell v. Data Gen. Corp., 12 F.3d 1310,

1316 (4th Cir.1993) (considering two questions at summary judgment:

(1) the prima facie case and (2) "whether [the plaintiff] has shown

that there is a genuine dispute of material fact about [the

defendant's] proffered explanation for the discharge");                       Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994)

("[T]he only effect of the employer's nondiscriminatory explanation

is to convert the inference of discrimination based upon the

plaintiff's prima facie case from a mandatory one which the jury

must draw, to a permissive one the jury may draw, provided that the

jury finds the employer's explanation "unworthy' of belief.")

(emphasis in original);            Perdomo v. Browner, 67 F.3d 140, 146 (7th

Cir.1995) ("The district court found Perdomo's [direct] evidence of

racial discrimination unpersuasive, but ... such evidence is not

required:        the trier of fact is permitted to infer discrimination

from        a   finding    that    the     employer's      proffered     reason    was

spurious.");        Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104,

1110 (8th Cir.) ("The elements of the plaintiff's prima facie case

are    thus     present    and    the    evidence    is    sufficient    to    allow   a

       10
      The Third Circuit's en banc opinion in Sheridan is a
particularly illuminating and thorough study of the issue,
especially its discussion of the justification for the
interpretation of Hicks that has been adopted by a majority of
the circuits. See 100 F.3d at 1068-72.
reasonable     jury       to    reject    the    defendant's       non-discriminatory

explanations.         The "ultimate question' of discrimination must

therefore be left to the trier of fact to decide."), cert. denied,

--- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994);                          Washington

v. Garrett, 10 F.3d 1421, 1433 (9th Cir.1993) ("If a plaintiff

succeeds     in     raising      a   genuine     factual        issue   regarding      the

authenticity of the employer's stated motive, summary judgment is

inappropriate, because it is for the trier of fact to decide which

story is to be believed.");              Barbour v. Merrill, 48 F.3d 1270, 1277

(D.C.Cir.1995)        ("According         to    Hicks,     a    plaintiff      need   only

establish a prima facie case and introduce evidence sufficient to

discredit the defendant's proffered nondiscriminatory reasons;                           at

that    point,      the        factfinder,      if    so       persuaded,   may       infer

discrimination.").

       Of course, the holdings of other federal courts of appeals on

the issue do not determine the law of this circuit.                         However, in

considering whether the rule established in our precedents "ought

to be the law," it is of no small moment that eight of the ten

other circuits that have considered the question are in agreement

with our interpretation of Hicks.                    Thus far, only the First and

Fifth Circuits have issued opinions expressing a contrary view, and

in neither opinion was that expression actually a holding.

       In   Woods    v.    Friction      Materials,        Inc.,   30   F.3d    255    (1st

Cir.1994), the First Circuit stated that proof of pretext will not

always shield a plaintiff from summary judgment, id. at 260 n. 3,

but held only that the defendant in that case was entitled to

summary judgment because the plaintiff had presented "no evidence
... to rebut [the defendant's] assertion that those hired were more

qualified," id. at 262.     Of course, that holding—as distinguished

from the dicta—is entirely consistent with the law of our circuit

and the eight other circuits we have cited.

      In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.1996)

(en banc), the Fifth Circuit affirmed judgment in favor of an

employee in an age discrimination case, holding that the evidence

was   sufficient   to   allow   a   rational    jury    to   find   that    age

discrimination was the true reason the employer discharged the

employee.    That holding itself is no problem, but the                Rhodes

opinion also contains dicta regarding the              Hicks rule that is

arguably inconsistent with the law of this circuit and eight

others.   Although the     Rhodes opinion states that under            Hicks,

"evidence of pretext will permit a trier of fact to infer that the

discrimination was intentional," id. at 993, it also states that

"[i]t is unclear ... whether the [Supreme] Court intended that in

all such cases in which an inference of discrimination is permitted

a verdict of discrimination is necessarily supported by sufficient

evidence,"   id.    Additionally,     the   opinion     states,     "[w]e   are

convinced that ordinarily such verdicts would be supported by

sufficient evidence, but not always."          Id.

      The fact remains that the contrary dicta in the First and

Fifth Circuit decisions are just that:         dicta.    We have not found

any holding of any circuit inconsistent with the holding of our

Hairston, Batey, Howard, Cooper-Houston line of decisions, and at

least eight other circuits have reached the same holding.
5. The Hicks Standard is not a "Dramatic and Hurtful-to-Employers
Change in the Law"
     We    close   out our discussion of the            Isenbergh     dicta   by

answering its charge that the Howard line of decisions represents

a "dramatic and hurtful-to-employers change in the law" that the

Supreme Court did not intend or command in the Hicks decision, see

Isenbergh, 97 F.3d at 443.         Not only does Hicks command the rule

recognized in our Howard line of decisions, but that rule is a

rational,    common-sense    consequence     of   the    unique   evidentiary

framework that has been in place for over twenty years—ever since

the Supreme Court decided McDonnell Douglas.

         Under   the   McDonnell   Douglas   framework,     if    a   plaintiff

establishes a prima facie case, and the defendant employer proffers

no nondiscriminatory reasons for the action, it is settled that the

plaintiff wins judgment as a matter of law.             Burdine, 450 U.S. at

253, 101 S.Ct. at 1093-94.     Hopefully, no one would suggest that in

such a case the defendant might be entitled to a judgment as a

matter of law.     Yet, those who argue against the          Howard line of

decisions are advocating a position that is not much more logically

defensible than that.       Given the establishment of a prima facie

case in each, the case in which an employer puts forward nothing

but false reasons is too analytically close to the case in which

the employer puts forward no reasons for the law to permit judgment

as a matter of law to be entered for opposite sides in the two

cases.    Stated somewhat differently, why should the law reward so

handsomely mendacity in legal proceedings?

     The upshot of Hicks and the Howard line of decisions is that

a defendant cannot win judgment as a matter of law merely by

proffering nothing but false nondiscriminatory reasons for its
actions.    The justification for that rule is closely analogous to

the justification for the mandatory presumption of discrimination

that initially accompanies a plaintiff's prima facie case.                   As

then-Justice (now Chief Justice) Rehnquist pointed out long before

the Hicks decision, we require a defendant, on pain of losing the

case, to come forward with explanations for its actions once a

plaintiff has made out a prima facie case of discrimination,

"because we presume these acts, if otherwise unexplained, are more

likely   than   not   based     on   the   consideration     of   impermissible

factors."     Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98

S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978).                Justice Rehnquist

further explained:

      [W]e are willing to presume this largely because we know from
      our experience that more often than not people do not act in
      a totally arbitrary manner, without any underlying reasons,
      especially in a business setting. Thus, when all legitimate
      reasons for rejecting an applicant have been eliminated as
      possible reasons for the employer's actions, it is more likely
      than not the employer, who we generally assume acts only with
      some reason, based his decision on an impermissible
      consideration such as race.

Id.

      As the Third Circuit, sitting en banc, recently observed, "The

distinct    method    of   proof     in   employment   discrimination   cases,

relying on presumptions and shifting burdens of articulation and

production, arose out of the Supreme Court's recognition that

direct     evidence   of   an    employer's     motivation    will   often   be

unavailable or difficult to acquire."            Sheridan v. E.I. DuPont De

Nemours & Co., 100 F.3d 1061, 1071 (3d Cir.1996) (en banc).

Frequently, acts of discrimination may be hidden or subtle;                  an

employer who intentionally discriminates is unlikely to leave a
written record of his illegal motive, and may not tell anyone about

it.    "There will seldom be "eyewitness' testimony as to the

employer's mental processes."     United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75

L.Ed.2d 403 (1983).     Because of those realities, plaintiffs are

often obliged to build their cases entirely around circumstantial

evidence.    The unique proof problems that accompany discrimination

cases are the genesis of the unique solutions that the Supreme

Court has devised for those cases in McDonnell Douglas and its

progeny.     See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228,

271, 109 S.Ct. 1775, 1801-02, 104 L.Ed.2d 268 (1989) (O'Connor, J.,

concurring) ("[T]he entire purpose of the McDonnell Douglas prima

facie case is to compensate for the fact that direct evidence of

intentional discrimination is hard to come by.").

      A defendant who puts forward only reasons that are subject to

reasonable disbelief in light of the evidence faces having its true

motive determined by a jury.    But we fail to see how that result is

particularly "hurtful-to-employers," as Isenbergh suggests, 97 F.3d

at 443.     The Third Circuit recently explained:

           We routinely expect that a party give honest testimony in
      a court of law;    there is no reason to expect less of an
      employer charged with unlawful discrimination.         If the
      employer fails to come forth with true and credible
      explanation and instead keeps a hidden agenda, it does so at
      its own peril. Under those circumstances, there is no policy
      to be served by refusing to permit the jury to infer that the
      real motivation is the one that the plaintiff has charged.

Sheridan, 100 F.3d at 1069.

       Of course, the law is that the jury is not required to make

the inference of discrimination that Hicks permits upon rejection

of the employer's proffered nondiscriminatory reasons.     "That the
employer's proffered reason is unpersuasive, or even obviously

contrived, does not necessarily establish that the plaintiff's

proffered reason of race is correct.                  That remains a question for

the factfinder to answer...."            Hicks, 509 U.S. at 524, 113 S.Ct. at

2756.      In answering that question, the jury must perform its

traditional      duties    of     assessing     the    credibility    of   witnesses

through    observation       of      trial    testimony    and   of   weighing     the

evidence—tasks peculiarly within the province of the jury.                     E.g.,

Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir.1988)

("Assessing the weight of evidence and credibility of witnesses is

reserved for the trier of fact."). In performing those traditional

duties, the jury must measure the strength of the permissible

inference of discrimination that can be drawn from the plaintiff's

prima facie case along with the evidence that discredits the

employer's proffered explanations for its decision.                    Even if the

jury concludes that all the employer's proffered explanations are

unworthy    of     belief,      it    may     still    remain    unpersuaded     that

discrimination was the real reason for the employer's decision.

That    decision    is    entrusted      to   the     jury's   discretion,   but   to

exercise that discretion, the jury has to get the case.

        When deciding a motion by the defendant for judgment as a

matter of law in a discrimination case in which the defendant has

proffered nondiscriminatory reasons for its actions, the district

court's task is a highly focused one.                 The district court must, in

view of all the evidence, determine whether the plaintiff has cast

sufficient doubt on the defendant's proffered nondiscriminatory

reasons to permit a reasonable factfinder to conclude that the
employer's proffered "legitimate reasons were not what actually

motivated its conduct," Cooper-Houston v. Southern Ry. Co., 37 F.3d

603, 605 (11th Cir.1994) (citation omitted).        The district court

must   evaluate   whether   the   plaintiff   has   demonstrated   "such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of

credence."    Sheridan, 100 F.3d at 1072 (citation and internal

quotation marks omitted);         see also Walker, 53 F.3d at 1564

(Johnson, J., concurring) (discussing methods of proving pretext).

However, once the district court determines that a reasonable jury

could conclude that the employer's proffered reasons were not the

real reason for its decision, the court may not preempt the jury's

role of determining whether to draw an inference of intentional

discrimination from the plaintiff's prima facie case taken together

with rejection of the employer's explanations for its action.        At

that point, judgment as a matter of law is unavailable.

D. Application of the Legal Standard to the Evidence in this Case

       Having reviewed the legal principles that govern this case,

we now proceed to apply those principles to the evidence adduced at

trial.   In doing so, we consider the entire record in the light

most favorable to Combs, for the limited purpose of ascertaining

whether there was sufficient evidence for Combs to withstand

Meadowcraft's motions for judgment as a matter of law.        Our task,

like that of the district court, is a highly focused one.      We must,

in view of all the evidence, determine whether the plaintiff has

cast     sufficient    doubt      on   the    defendant's     proffered
nondiscriminatory reasons to permit a reasonable factfinder to

conclude that the employer's proffered "legitimate reasons were not

what actually motivated its conduct," Cooper-Houston v. Southern

Ry. Co., 37 F.3d 603, 605 (11th Cir.1994).

          As   previously   noted,   Meadowcraft   proffered   evidence   in

support of three legitimate, nondiscriminatory reasons for its

decision to promote Walker, instead of Combs, to the position of

welding supervisor.         Those reasons were:    (1) Walker's superior

welding experience;         (2) the recommendations of supervisors Lane
and Anderson;       and (3) Walker's superior supervisory experience.

By meeting its burden of producing legitimate reasons for its

decision, Meadowcraft successfully eliminated the presumption of

discrimination that initially accompanied Combs' prima facie case.11

     11
      To establish a prima facie case of discriminatory failure
to promote, a plaintiff must prove: (1) that he is a member of a
protected class; (2) that he was qualified for and applied for
the promotion; (3) that he was rejected; and (4) that other
equally or less qualified employees who were not members of the
protected class were promoted. Wu v. Thomas, 847 F.2d 1480, 1483
(11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104
L.Ed.2d 156 (1989). Although Meadowcraft contends that we should
revisit whether Combs successfully established a prima facie case
of discrimination, the Supreme Court has instructed otherwise:

               [W]hen 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 within the meaning of Title VII.

     United States Postal Serv. Bd. of Governors v. Aikens, 460
     U.S. 711, 714-15, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403
     (1983) (footnote omitted). "When the trier of fact has
     before it all the evidence needed to decide the ultimate
     issue of whether the defendant intentionally discriminated
     against the plaintiff, the question of whether the plaintiff
     properly made out a prima facie case "is no longer
     relevant.' " Richardson v. Leeds Police Dep't, 71 F.3d 801,
     806 (11th Cir.1995) (quoting Aikens, 460 U.S. at 715, 103
Provided    that    the   record    evidence   would    permit   a   reasonable

factfinder to reject each of Meadowcraft's proffered explanations

for its decision, the case properly was submitted to the jury for

a decision on the ultimate question of intentional discrimination.

We now consider the evidence related to each of the three proffered

nondiscriminatory reasons for Meadowcraft's decision to promote

Walker instead of Combs.
                            1. Welding Experience

       The parties agree that Walker had welding experience and that
Combs did not.       Combs concedes that "some difference in the two

existed" with respect to welding experience, which we take to mean

that    Walker     was    more   qualified     as   a   welder   than     Combs.

Nonetheless, Combs contends that the jury reasonably could have

concluded    that    Walker's      welding   experience   did    not    actually

motivate Meadowcraft's promotional decision, because Walker was


       S.Ct. at 1482); see also Wall v. Trust Co., 946 F.2d 805,
       809-10 (11th Cir.1991) (same).

            Because Meadowcraft failed to persuade the district
       court to dismiss Combs' lawsuit for lack of a prima facie
       case, and responded to Combs' proof by offering evidence to
       explain why Combs was rejected in favor of Walker, the
       factfinder was then required to "decide whether the
       rejection was discriminatory within the meaning of Title
       VII." Aikens, 460 U.S. at 715, 103 S.Ct. at 1481. Of
       course, the factfinder could conclude that the decision was
       discriminatory only if it permissibly could disbelieve
       Meadowcraft's proffered nondiscriminatory reasons for its
       decision. Therefore, on appeal—as on Meadowcraft's motion
       for judgment as a matter of law—the question of whether
       Combs "properly made out a prima facie case "is no longer
       relevant,' " Richardson, 71 F.3d at 806 (11th Cir.1995)
       (quoting Aikens, 460 U.S. at 715, 103 S.Ct. at 1482). While
       we consider the evidence submitted by Combs in connection
       with his prima facie case in evaluating whether a reasonable
       jury could disbelieve Meadowcraft's proffered
       nondiscriminatory reasons for its actions, we do not revisit
       the existence of the prima facie case itself.
transferred to the packing department—where welding experience is

irrelevant—almost immediately after his promotion.

     Viewing the record evidence in the light most favorable to

Combs, we agree that a reasonable jury could have concluded that

Meadowcraft's promotional decision was not actually motivated by

Walker's concededly superior welding experience.                At trial, John

Hart, supervisor of the Wadley plant, testified: "Fred was packing

supervisor when I hired him.         He wasn't in the weld area, he was a

packing supervisor."         Although Meadowcraft contends that Walker's

stint in the packing department lasted only a short time, that

contention is undermined by the record.             George Anderson, one of

the welding department supervisors, testified about the duration of

Walker's    packing    assignment     as   follows:     "Fred      made   a   good

supervisor.    When he was first hired, I think he spent a couple of

weeks in welding, then he was moved to packing for a year or so.

Now he's back over there with the men in the welding, and he's

doing an outstanding job."

     When   viewed     in    the   light   most   favorable   to    Combs,    the

foregoing evidence would permit a reasonable juror to conclude that

Walker was hired to work as a packing supervisor and that he spent

at least a year in that position before being transferred to the

welding department.         Because welding experience is not relevant to

supervisory work in the packing department, a reasonable juror

would be permitted to conclude that Walker's superior welding

experience was not a factor that actually motivated Meadowcraft's

decision to promote Walker instead of Combs.
                      2. Supervisory Recommendations
        Meadowcraft contends that its decision to promote Walker

instead of Combs was based on the recommendations of welding

department supervisors George Anderson and Edward Lane, both of

whom are black.       According to Meadowcraft, those supervisory

recommendations favored Walker, because Walker was endorsed by both

supervisors, whereas Combs was endorsed only by Lane. That view of

the circumstances is supported by the testimony of Plant Supervisor

Hart.   At   trial,   Hart   testified:    "George   and   Edward   both

recommended Fred Walker for the job.      They were more familiar with

Fred Walker than I was.      I had never spoken to Fred Walker until I

interviewed him."     Hart further testified that "[a]fter George and

Edward came to me and recommended him, I did pull his resume."

Additionally, Hart testified that neither Anderson nor Lane ever

recommended that Combs be promoted to supervisor.

     Meadowcraft's view of the evidence is also supported by

Anderson's testimony.     At trial, the following exchange took place

on direct examination of Anderson:

Q. Did you have anything to do with Mr. Walker's promotion to
     supervisor?

A. Well, one day Fred come up to the office and talked with me and
     Mr. Lane about do they think we have any chance of progressing
     himself in the plant. He told him to send out a resume. He
     did, and I sort of recommended him to John [Hart] that, you
     know, I have nothing to do with the hiring, but I did
     recommend Fred to be a supervisor.

Q. Why did you do that?

A. Well, I worked with Fred down there on the floor. He came in
     and he got into welding, and I already knew that he had used
     to be a principal, and I knew he worked with people. At that
     time we was needing supervisors. We was going to start up a
     second shift and we'd have to get some supervisors, and I
     hadn't thought about him until he came and talked with us that
     day. I figured he'd be a good candidate.
Q. And you communicated that to Mr. Hart?

A. Yes.

Q. Did you ever recommend Darrell Combs to be supervisor?

A. No, I didn't.

     Although        Hart's   and      Anderson's        testimony     supports

Meadowcraft's proffered nondiscriminatory explanation for promoting

Walker instead of Combs, Edward Lane's testimony paints a different

picture   of   the    supervisory    assessments    of    Walker     and   Combs.

According to Lane's testimony on direct examination, he recommended

Combs for the supervisor position, and Anderson agreed with Lane's

evaluation of Combs' qualifications for the position:

Q. Now, were you there when Mr. Combs sought a position in the
     office?

A. Yes, ma'am, I was.

Q. And tell the ladies and gentlemen of the jury what you know
     about that.

A. At the time it was for other positions, supervision positions
     were open. The man that I was working for by the name of Mr.
     John Hart, knew of such a position, and we made a
     recommendation for him to be a supervisor.

Q. You made a recommendation for who to be a supervisor?

A. This gentleman in the courtroom by the name of Darrell Combs.

Q. To whom did you make that recommendation?

A. To Mr. John Hart.

Q. Now, at the time you made that recommendation, was there any
     other individuals discussed?

A. Yes, ma'am, there was.           A gentleman by the name of Mr. Fred
     Walker.

Q. Now, when you made this recommendation about Mr. Combs, it was
     being of supervisory material, is that correct?

A. Yes, ma'am, I did.
Q. Who else was—Was it at a meeting you made that recommendation?

A. Yes, ma'am.

Q. Who else was at that meeting?

A. Mr. George Anderson.

Q. Did Mr. Anderson go along with your assessment that Mr. Combs
     was qualified to be a supervisor?

A. Yes, he did.

Q. Did he express that to Mr. Hart?

A. Yes, ma'am, he did.

       In addition to testifying that both he and Anderson supported

Combs    for    the    supervisory       position,    Lane    repeatedly    denied

recommending Walker for the job:

Q. Did you recommend Fred Walker be promoted to supervisor, and did
     you make that recommendation to John Hart?

A. No, sir, I made the recommendation for Darrell Combs.

       ....

Q. All I want you to tell me, I don't mean to cut you off again,
     but I want you to tell me what you said.

A. I'm telling you direct as to what I directed to the gentleman
     right there, Darrell Combs. That's the recommendation I made
     to be supervisor.

Q. I got that.        You recommended Darrell Combs.

A. Yes, sir.

Q. Did you, or did you not, recommend Fred Walker?

A. No, sir, I did not.

Q. You did not?

A. No, sir.

When    confronted     with   his   deposition       testimony,      however,   Lane

admitted      that    he   told   Hart    that   Walker      would   make   a   good

supervisor, but indicated that he was pressured to do so:
Q. So you did tell John Hart that Fred Walker would make a good
     supervisor.

A. Yes, sir, I had to.

Q. All right.    Tell us about that.

A. The reason I had to, sir, was we was in a meeting.... And John
     was the manager. If I would have said yes or no, still John
     was going to pick who he wanted.

Q. I'm not trying to get at what Mr. Hart was going to do with your
     recommendation, I'm trying to get at what your recommendation
     was.

A. Yes, sir.    We all agreed.

       To   summarize,     the    evidence      is    in    conflict   about    the

communications that Anderson and Lane made to Hart about the

relative merits of Walker and Combs for the supervisory position.

It is undisputed that Anderson recommended Walker, but there is

conflicting    testimony     about      whether      he    also   endorsed   Combs.

Similarly, Lane's testimony clearly indicates that he recommended

Combs, but there is conflicting testimony about whether he also

endorsed Walker, or merely begrudgingly agreed at a meeting with

Hart and Anderson that Walker would be a good supervisor.                    Viewing

the evidence in the light most favorable to Combs, a reasonable

jury   could   conclude     that    the     supervisory      recommendations     of

Anderson and Lane did not clearly point to Walker or Combs as the

preferable     candidate    and     that,    therefore,       those    supervisory

recommendations did not actually motivate Meadowcraft's decision to

promote Walker instead of Combs.
                         3. Supervisory Experience

        Meadowcraft's third proffered nondiscriminatory reason for

promoting    Walker   instead      of   Combs   is    that    Walker   had   better

experience as a supervisor, both in quality and quantity.                    On that
point, it is undisputed that prior to joining the workforce at

Meadowcraft, Walker worked for over twenty years as a school

administrator and had supervised others throughout most of his

career. Walker's testimony about his supervisory experience, which

is entirely undisputed, is as follows:

Q. [Y]ou say, you became principal with Woodland High School in
     1974?

A. About January of 1974, immediately after New Year's.

Q. And did you supervise people?

A. Yes, sir.

Q. How many people would you say you supervised?

A. Approximately forty-seven or forty-eight teachers, thirty-five
     to thirty-six bus drivers, thirteen or fourteen lunchroom
     personnel, and custodian type workers.    Probably around a
     hundred or more people.

     ....

Q. All right.   How long were you principal at Woodland?

A. Seven years.

Q. And then what did you do?

A. I received a promotion to the superintendent's office at the
     county courthouse, and I joined the superintendent's staff as
     supervisor of instruction.

     ....

Q. How many schools did you all have jurisdiction over?

A. We had four high schools, two middle schools and one junior high
     school at that time. Also a share of the vocational trade
     school.

     ....

Q. All right.     How long were you supervisor of instruction?

A. Six years.

     ....
Q. So after the superintendent's office, you went to Rock Mill?

A. Yes, sir.

Q. And Rock Mill is a—what type of school is that?

A. It's a K through 8 junior high school.

Q. All right.   How many students were there?

A. Approximately at that time 350 students.

Q. And you had responsibility for those students?

A. Yes, sir.

Q. How many teachers were there?

A. At that time probably sixteen or seventeen on staff.

Q. Did you supervise any other workers?

A. My custodial workers, my lunchroom workers and my bus drivers.

Q. Okay. And you were principal of Rock Mill beginning in '86 until
     what year?

A. 1991.

     By contrast, Combs' testimony at trial established that his

own supervisory experience was extremely limited:

Q. Now, you had never really had any power to discipline, or
     counsel, or fire anybody while you were out there [in the
     scanning department], had you?

A. On that job?

Q. Yes, sir.

A. No, sir.

Q. While you were at the company at all?

A. No, sir.

Q. And you never really supervised anyone, other than showing the
     people how to use the scanning guns for over those two or
     three weeks?

A. Right.

Q. Let's look at your work experience, if we can.     Prior to the
     company, okay, you had been a grocery store bagger?

A. Yes, sir.

Q. You had been a resident manager at an apt [apartment] complex,
     right?

A. Yes, sir.

Q. Had you supervised anybody there?

A. Supervise? Well, I used to have little teenagers working for me
     when I was doing some of my maintenance duties, but as far
     as—like as far as like company people, no.

     ....

Q. So at the point of 1992 when you're working for Mr. Hart on this
     assignment he had for you, you hadn't really ever supervised
     anybody except those teenagers you told me about, is that
     right?

A. That's right.

     Thus, the evidence was undisputed that Walker had substantial

supervisory    experience,     while   Combs   had   virtually   none.

Nonetheless, Combs contends that he put on sufficient evidence to

permit a reasonable jury to disbelieve that Meadowcraft's decision

to promote Walker was motivated by Walker's supervisory experience.

Combs points to the fact that, prior to joining Meadowcraft, Walker

was forced to resign his position as principal of Rock Mills Junior

High School after acknowledging that he had misused approximately

$5,000 of school funds.      Combs' theory seems to be that Walker's

substantial supervisory experience is sufficiently undermined by

the circumstances surrounding his resignation as principal that a

reasonable juror could disbelieve Meadowcraft's explanation that it

promoted Walker instead of Combs because Walker had more and better

supervisory experience.      We disagree.

     Financial impropriety is a serious matter, but there is no
evidence in the record that either Walker or Combs were considered

for a position that involved the custody or management of company

funds.     Walker and Combs were contenders for a position that

involved managing people, not money.       If Meadowcraft had contended

that it promoted Walker instead of Combs because it believed Walker

would be a more trustworthy financial manager, the evidence of

Walker's misuse of funds clearly would have been sufficient to

permit a reasonable jury to disbelieve Meadowcraft's proffered

explanation.    However, Meadowcraft never proffered that as a

reason. Instead, Meadowcraft proffered evidence that the reason it

promoted Walker was that he had years of extensive supervisory

experience that Combs did not.

     In relying on Walker's financial improprieties to undermine

Meadowcraft's explanation that it based its promotion decision on

Walker's    superior    supervisory    experience,     Combs    confuses

disagreement   about   the   wisdom   of   an   employer's   reason   with

disbelief about the existence of that reason and its application in

the circumstances.     Reasonable people may disagree about whether

persons involved in past financial improprieties should be made

supervisors, but such potential disagreement does not, without

more, create a basis to disbelieve an employer's explanation that

it in fact based its decision on prior non-financial supervisory

experience.    Meadowcraft's decision to promote Walker instead of

Combs may seem to some to be bad business judgment, and to others

to be good business judgment, but federal courts do not sit to

second-guess the business judgment of employers.        Stated somewhat

differently, 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.

      To summarize, Combs failed to produce evidence sufficient to

permit     a        reasonable   factfinder       to    disbelieve       Meadowcraft's

proffered nondiscriminatory explanation that it promoted Walker

instead        of     Combs    because       Walker    had    superior     supervisory

experience. Because of that failure, the district court should not

have permitted the case to go to the jury.                         Meadowcraft was

entitled to judgment as a matter of law.
                                      V. CONCLUSION

       A plaintiff in a discrimination case based on circumstantial

evidence can avoid judgment as a matter of law by putting on a

prima facie case and by producing evidence sufficient to discredit

in the mind of a reasonable juror all of the defendant's proffered

nondiscriminatory reasons for its actions.                   In this case, however,

Combs failed to produce evidence sufficient to permit a reasonable

juror to reject as spurious Meadowcraft's explanation that it

promoted Walker instead of Combs to supervisor because Walker had

superior supervisory experience.

      Therefore, we REVERSE the entry of judgment in favor of Combs,

and   we   REMAND        the   case    for    entry    of    judgment    in   favor   of

Meadowcraft.

      BLACK, Circuit Judge, specially concurring:

      Although I agree with the majority opinion, I would confine

the discussion to those legal concepts directly implicated by the

instant facts.          The legal principles that control this dispute are
familiar and do not require extended explication.                              Under the

McDonnell Douglas framework, a presumption of discrimination arises

if a Title VII plaintiff succeeds in establishing a prima facie

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).                           The defendant

may     rebut    the     presumption         by     articulating        a     legitimate,

nondiscriminatory reason for the challenged employment decision.

Id.   at    254-55,     101    S.Ct.    at    1094-95.          At    that    point,       the

presumption disappears from the case, leaving the plaintiff with

the     ultimate      burden    of     convincing         the      factfinder       that     a

discriminatory reason more likely than not motivated the employment

action.     Id. at 256, 101 S.Ct. at 1095.                The plaintiff may shoulder

this burden either directly by persuading the factfinder that a

discriminatory reason motivated the employer or indirectly by

showing that the employer's proffered explanation is unworthy of

credence.       Id.

      The    majority     opinion      properly          applied     these    fundamental

principles       when   it     determined         that    Combs      failed    to    adduce

sufficient evidence to withstand Meadowcraft's motions for judgment

as a matter of law.          The evidence offered by Combs would not permit

a reasonable trier of fact to find either that a discriminatory

reason       motivated        Meadowcraft          or      that      the      legitimate,

nondiscriminatory reasons proffered were not worthy of belief.

Undisputed evidence established that Walker had superior managerial

experience, and Combs offered no evidence tending to undermine the

veracity of Meadowcraft's claimed reliance on this factor.
