              Case: 14-11007   Date Filed: 03/16/2018   Page: 1 of 51


                                                                        [PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-11007
                          ________________________

                      D.C. Docket No. 1:10-cv-03132-SCJ

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                         Plaintiff-Appellant
                                                         Cross-Appellee,

CONTRICE TRAVIS,

                                                         Intervenor-Appellant
                                                         Cross-Appellee,

                                     versus

EXEL, INC.,

                                                         Defendant-Appellee
                                                         Cross-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (March 16, 2018)
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Before TJOFLAT and JILL PRYOR, Circuit Judges, and MOODY, * District
Judge.

JILL PRYOR, Circuit Judge:

       A jury awarded the Equal Employment Opportunity Commission (the

“EEOC”) and Contrice Travis back pay, compensatory damages, and punitive

damages after finding that Travis’s employer, Exel, Inc., discriminated against her

because of her sex. The discrimination occurred when Dave Harris, Travis’s

supervisor, denied her a promotion in favor of Michael Pooler, a male employee.

After the verdict, Exel filed a renewed motion for judgment as a matter of law.

The district court denied Exel’s motion as to liability, but granted it as to the jury’s

punitive damages award. Travis and the EEOC now appeal the vacatur of the

jury’s punitive damages award, and Exel cross-appeals the denial of its motion as

to liability. After careful review, we affirm.

                                 I.      BACKGROUND

       Travis sought a promotion to a position vacated by her direct supervisor,

Kenny Teal, when Harris promoted Teal to Operations Manager. When she

learned of Teal’s promotion, Travis told Harris that she wished to be considered

for Teal’s vacated position. But instead of promoting Travis, Harris selected

Pooler to fill the vacated position, purportedly through the application of Exel’s


       *
         The Honorable James S. Moody, Jr., United States District Judge for the Middle District
of Florida, sitting by designation.

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priority transfer practice (“PTP”), which Exel implemented as a means of

transferring employees to vacant positions instead of laying them off.

      By his own admission, Harris could have promoted Travis even though he

was presented with a PTP candidate. Harris testified at trial that the PTP imposed

no mandatory hiring and that he retained discretion in deciding whether to hire

Pooler. Harris also acknowledged that he could have exercised his discretion by

promoting Travis and moving Pooler into Travis’s vacated position. The evidence

at trial showed the feasibility of this option: several witnesses testified that Travis

was well qualified for the promotion. Teal and another supervisor testified that

Travis was an exceptional employee who could have easily met the job’s demands.

Pooler himself testified that Travis was more qualified for the job than he was. But

despite Travis’s expressed interest and qualifications—and Harris’s discretion to

promote her—Harris told her that he “was never going to” promote her to a

supervisor position. Doc. 165 at 130.1

      Harris also had a history of bias against women. Multiple witnesses testified

at trial that Harris treated female employees differently than male employees. He

spoke to female employees less often, acted standoffish toward them, and asked

other supervisors to manage them so that he did not have to do so. But most

importantly, trial testimony connected evidence of Harris’s general bias against

      1
          All citations in the form “Doc. #” refer to the district court docket entries.

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women with his specific decision not to promote Travis. Teal testified that after he

was promoted he recommended Travis for his vacated position, and Harris’s

response was that he “would not put a woman in a management position.” Doc.

166 at 16.

                        II.    STANDARD OF REVIEW

      We review a district court’s ruling on a renewed motion for judgment as a

matter of law de novo and apply the same standards as the district court. Abel v.

Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000). Judgment as a matter of law is

appropriate “only if the facts and inferences point overwhelmingly in favor of one

party, such that reasonable people could not arrive at a contrary verdict.”

Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1275 (11th Cir. 2008)

(internal quotation marks omitted). “We consider all the evidence, and the

inferences drawn therefrom, in the light most favorable to the nonmoving party.”

Id. (internal quotation marks omitted). “We will not second-guess the jury or

substitute our judgment for its judgment if its verdict is supported by sufficient

evidence.” Lambert v. Fulton Cty., 253 F.3d 588, 594 (11th Cir. 2001).

                                III.   DISCUSSION

A.    Travis’s Evidence Was Sufficient for a Reasonable Jury to Find that
      She Suffered Discrimination Because of Her Sex.

      Title VII prohibits employers from discriminating “against any individual

with respect to [her] compensation, terms, conditions, or privileges of employment,
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because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can

prove sex discrimination under Title VII by showing that her sex “was a

motivating factor for any employment practice, even though other factors also

motivated the practice.” Id. § 2000e-2(m). At trial, Exel countered Travis’s claim

that she was denied the promotion based on her sex by offering a legitimate,

nondiscriminatory reason for Harris’s hiring decision: a routine application of the

PTP resulted in Pooler’s selection over Travis. To prove her Title VII claim, then,

Travis had to show that Exel’s proffered reason was pretextual “either directly by

[showing] that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation is unworthy of

credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

      We may overturn the jury’s verdict only if we conclude that no reasonable

jury could have found that Harris’s hiring decision was motivated by

discrimination based on Travis’s sex rather than by application of the PTP. We

cannot so conclude for two reasons. First, the jury heard evidence that Harris

could have promoted Travis despite being presented with a PTP candidate.

Franklin Hudson, who worked in Exel’s Human Resources Department, testified

that General Managers like Harris controlled their own hiring and could veto PTP

candidates if they wished. Likewise, Harris admitted that he made the ultimate

decision whether to hire Pooler. He also admitted that he could have exercised his


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hiring discretion by promoting Travis and moving Pooler into Travis’s vacated

position. Our dissenting colleague argues that this would have been a demotion for

Pooler, but that is beside the point: the PTP did not require Harris to hire Pooler to

fill Teal’s vacated position. If the PTP did not require Harris to hire Pooler, then it

is for the jury to decide what motivated Harris’s decision. Because two different

witnesses—including the decisionmaker himself—testified that the PTP imposed

no mandatory hiring, the jury reasonably could have concluded that Harris had the

discretion to promote Travis even though he was presented with a PTP candidate.

      Indeed, the jury also heard evidence supporting the inference that Harris

could have promoted Travis to Teal’s vacated position without going through the

PTP process at all. Both Travis and Harris testified that when Teal was promoted,

Travis approached Harris seeking promotion to Teal’s vacated position. Even

though the evidence failed to show exactly when this conversation took place

relative to when Exel’s Human Resources Department first presented Pooler to

Harris as a PTP candidate, the jury reasonably could have inferred that it took

place beforehand. Harris testified that when Travis expressed interest in the

promotion, he told her that he “was going to” post the open position, but had not

done so yet. The Human Resources Department could not have referred Pooler as

a PTP candidate until after the opening was posted, or at least submitted to Human

Resources for posting, according to trial testimony. This evidence supports the


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reasonable inference that Harris knew about Travis’s interest before he ever

received Pooler as a PTP candidate or even learned that he would receive a PTP

candidate at all. And the evidence that promotions often happened informally at

Exel—for example, Harris received his own position through an informal

promotion process—supported a finding that Harris could have promoted Travis

when she approached him about Teal’s vacated position, without going through the

PTP process at all.

      Second, the evidence showed that Harris harbored a bias against women.

Travis testified that Harris “limited his contact with pretty much all the females in

[the] office” and asked her to “manage the ladies in the office.” Doc. 165 at 161.

Another Exel employee, Tommy Chambers, testified that Harris was “standoffish”

with female employees and treated them differently than male employees. Doc.

166 at 95. According to Chambers, Harris would come into work in the morning

and “go straight to his office. He wouldn’t speak to any of [the female

employees].” Id. at 99. Chambers also testified, similarly to Travis, that Harris

instructed him to address any issues that arose with the female employees, even if

those employees normally would report to Harris directly.

      The evidence the jury heard also connected Harris’s bias against women

with his refusal to promote Travis. Again, the evidence showed that, when she

found out Harris had promoted Teal, Travis went to Harris’s office and told him


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that she wanted Teal’s vacated position.2 Travis testified that Harris’s response

was dismissive: he looked her in the eye and told her that he “was never going to”

promote her to a supervisor position. Doc. 165 at 130. Even though this response

was not overtly discriminatory, the jury reasonably could have inferred from the

other evidence of bias we have just discussed that Harris’s refusal was motivated

by Travis’s sex. What is more, Teal testified that when he recommended Travis

for his vacated position, Harris’s response—which Harris repeated more than

once—was that he would never put a woman in a management position.3 Viewed

in the light most favorable to Travis, Teal’s testimony was evidence not only of

Harris’s bias against women, but also that Harris’s bias motivated his refusal to

promote Travis despite his discretion to do so. This evidence is sufficient to tie

“generalized discriminatory behavior to the specific employment decision at

issue.” Dissent at 16.

       2
         This testimony suffices to defeat Exel’s argument that Travis cannot recover because
she failed to apply for Teal’s vacated position. Even if Travis failed to submit a formal
application, the evidence showed that other Exel employees had received promotions through
informal requests similar to Travis’s. Indeed, Exel’s counsel appears to have conceded that
Travis applied for the position when he said, during closing argument, “[n]obody is saying, well,
we’re defending the case because she didn’t apply. Nobody is saying that. I’m not saying that.”
Doc. 167 at 208.
       3
          We recognize that Teal testified inconsistently regarding the timing of Harris’s
comment, but it was up to the jury, not to us, to consider the credibility of Teal’s testimony in
light of this inconsistency. See Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d
1183, 1186 (11th Cir. 2001) (“[I]t is the function of the jury as the traditional finder of the facts,
and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of
witnesses.” (internal quotation marks omitted)). Because we must view the evidence in the light
most favorable to Travis, we must accept as true Teal’s testimony that Harris made the comment
in June 2008 when Teal recommended that Harris promote Travis to Teal’s vacated position.
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      In sum, the jury heard evidence that Harris could have promoted Travis to

Teal’s vacated position without going through the PTP process at all, and Harris

had the discretion—even after he was presented with a PTP candidate—to choose

Travis instead of that candidate. Perhaps most importantly, the jury also heard

evidence that Harris was biased against women and acted as a result of his bias

when he selected Pooler over Travis. The evidence at trial therefore was sufficient

for the jury reasonably to conclude that Travis suffered discrimination because of

her sex.

B.    Under Our Prior Precedent, the District Court Properly Vacated the
      Jury’s Punitive Damages Award.

      The district court vacated the jury’s punitive damages award after

concluding that Travis had failed to present evidence sufficient to meet our

standard in this circuit for imputing punitive damages to Exel. A plaintiff may

recover punitive damages in a Title VII action only if the employer “engaged in a

discriminatory practice . . . with malice or with reckless indifference to the

federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).

The Supreme Court has held that this standard “focus[es] on the actor’s state of

mind” and “does not require a showing of egregious or outrageous discrimination

independent of” that state of mind. Kolstad v. Am. Dental Ass’n, 527 U.S. 526,

535 (1999). But “[t]he inquiry does not end with a showing of the requisite

‘malice or . . . reckless indifference’” of the decisionmaker. Id. at 539. The
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plaintiff must also “impute liability for punitive damages” to the employer. Id.

Here, the district court vacated the jury’s punitive damages award based on this

imputation requirement.

      Before the Supreme Court decided Kolstad, we had held that a plaintiff may

impute liability for punitive damages to her employer by showing “either that the

discriminating employee was high[] up the corporate hierarchy, or that higher

management countenanced or approved [his] behavior.” Dudley v. Wal-Mart

Stores, Inc., 166 F.3d 1317, 1323 (11th Cir. 1999) (alterations in original) (internal

citation and quotation marks omitted). In Dudley, we applied this “higher

management” standard and held that punitive damages were unavailable because

the two discriminating employees were store managers at one of Wal-Mart’s more

than 2,000 stores. Id. We based our holding on the fact that “Wal-Mart is a giant

business” and “[n]either of [the discriminating employees were] high enough up

Wal-Mart’s corporate hierarchy.” Id.

      Shortly after we articulated the higher management standard in Dudley, the

Supreme Court took up the same issue in Kolstad, 527 U.S. at 539-40. The

Supreme Court held that punitive damages are imputable when the wrongdoing

employee discriminated while “acting in the scope of employment” and serving in

a “managerial capacity.” Id. at 543. The Court noted that “determining whether an

employee [served in a managerial capacity] requires a fact-intensive inquiry,” and


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it instructed courts to evaluate the employee’s “type of authority” and “amount of

discretion” in making that determination. Id. (internal quotation marks omitted).

The Court’s instruction, which focuses the inquiry on the discriminating

employee’s authority and responsibilities, appears to conflict with our higher

management standard, which looks to the size of the employer and the

discriminating employee’s rank in the corporate hierarchy. Indeed, the Supreme

Court said that “an employee must be important, but perhaps need not be the

employer’s top management, officers, or directors.” Id. (internal quotation marks

omitted).

      We have never squarely addressed the apparent conflict between Kolstad

and Dudley, but Travis asks us to do so in this case. As a panel, however, we

remain bound by our prior panel precedent. Even though the Supreme Court

decided Kolstad after Dudley, this court has continued to apply the higher

management standard while acknowledging Kolstad. See Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002) (citing Kolstad, but

nonetheless reiterating Dudley’s higher management standard); see also Ash v.

Tyson Foods, Inc., 664 F.3d 883, 902 n.12 (“Our later decision in Miller

recognizes that Kolstad did not affect [the higher management standard articulated

in] Dudley; Miller reiterates and applies Dudley’s high-in-the-hierarchy rule.”).

We are bound, therefore, to apply the higher management standard in this case.


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See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the

prior panel precedent] rule, a prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation by

the Supreme Court or by this court sitting en banc.”).

      Applying that standard, we affirm the district court’s conclusion that Travis

failed to present evidence sufficient to impute punitive damages to Exel. First,

Travis failed to show that Harris was “high[] up the corporate hierarchy.” Dudley,

166 F.3d at 1323 (alteration in original). In 2008, Harris was but one of 329

General Managers, and he oversaw only 25 employees, which amounted to 0.1%

of Exel’s employees in North America. Based on the high number of other

employees with his same title and the low number of employees under his

supervision, Harris was not sufficiently high up Exel’s corporate hierarchy to

impute, under Dudley, punitive damages to Exel. See Ash, 664 F.3d at 903

(punitive damages unavailable even when the discriminating manager oversaw

1,400 employees, which amounted to 1.5% of the employer’s total employees).

Second, Travis also failed to show that “higher management countenanced or

approved [Harris’s] behavior.” Dudley, 166 F.3d at 1323 (internal quotation marks

omitted). Even if other Exel employees were involved in Pooler’s PTP transfer,

there was simply no evidence that any employee above Harris’s rank was aware

even that Travis had requested the promotion.


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      In sum, we are bound by our prior panel precedent to apply the higher

management standard and therefore affirm the district court’s vacatur of the jury’s

punitive damages award.

                              IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s order denying Exel’s

renewed motion for judgment as a matter of law as to liability and granting the

motion as to the jury’s punitive damages award.

AFFIRMED.




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MOODY, District Judge, concurring:

      The issue in this appeal is whether a reasonable jury could find Contrice

Travis showed Exel’s legitimate, nondiscriminatory business reason for not

promoting her was pretextual. The majority opinion correctly describes the burden

at trial. First, Travis had to prove a prima facie case of discrimination by showing

that sex was a motivating factor in Harris’s decision not to hire her for the

supervisor position. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–

53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981) (applying the McDonnell-

Douglas burden-shifting framework). Exel then had the burden to offer a

legitimate, nondiscriminatory reason for Harris’ hiring decision. Id. The burden

then shifted back to Travis to show that “the legitimate reasons offered by the

defendant were not its true reasons, but were a pretext for discrimination.” Id.

      Travis easily satisfied her burden of presenting a prima facie case of

discrimination. And Exel met its burden of providing a legitimate,

nondiscriminatory reason for Harris’s hiring decision. Namely, Exel showed that

Harris hired Pooler as the Inventory Control supervisor the same way he filled

every supervisor opening up to that time—by submitting a job requisition to

Corporate HR and, upon receiving a PTP request from On-site HR, giving that PTP

candidate priority above all others. In fact, Exel’s other hiring managers had

always followed the same company protocol.


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      So we are left with the issue of whether Travis presented enough evidence to

show that Exel’s nondiscriminatory reason for not promoting her was pretextual.

Had it been my decision, I would have answered that question in the negative.

Although Travis presented evidence that Harris was biased again women, Travis

failed to show that his hiring decision was in any way related to her sex. Rather,

my view of the evidence is that Harris’s decision was motivated by Exel’s PTP

policy.

      But the issue is whether my view of the evidence is the only reasonable view

available. Lambert v. Fulton Cty., Ga., 253 F.3d 588, 594 (11th Cir. 2001). That is

not the case here. There is evidence that Harris was biased against women, and that

Travis, the most qualified candidate for the position, applied and was rejected

before Harris received the PTP request. So there was enough evidence for a

reasonable jury to conclude that Harris did not hire Travis because she was a

woman. For that reason, I affirm.




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TJOFLAT, Circuit Judge, dissenting:

      I agree that the District Court’s vacatur of the jury’s punitive-damages award

was correct under controlling precedent, but I see no need to reach that issue: on

the record presented, no reasonable juror could find that sex discrimination

motivated, in whole or in part, Exel’s decision to deny Travis the promotion she

sought.

      In its analysis, the Majority relies heavily on the evidence of Dave Harris’s

generalized bias toward women in the workplace. This reliance is misplaced.

Well-established precedent says there must be sufficient evidence tying

generalized discriminatory behavior to the specific employment decision at issue.

Here, the evidence presented by Travis and the EEOC failed to do that, at least in

the mind of any reasonable juror. Therefore, I would grant Exel’s motion for

judgment as a matter of law.

                                         I.

                                         A.

                                  1. The Company

      Exel was an Ohio corporation headquartered in Westerville, Ohio. It

provided supply chain management—such as shipping, receiving, and

warehousing—to corporate customers across a variety of industries. Exel was a

subsidiary within the Supply Chain Division of Deutsche Post DHL, a multi-

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national corporation headquartered in Bonn, Germany. 1 In 2008, Exel employed

25,000 individuals, including 329 general managers who oversaw individual work

sites in 450 locations in the United States and Canada.

       In Fairburn, Georgia, Exel owned a sprawling “campus,” wherein it operated

ten distribution sites, each approximately one mile apart. Each site serviced one

Exel customer. All told, the Fairburn campus employed around 1,300 individuals

in 2008. One of the ten sites on the Fairburn campus served Pittsburgh Paint &

Glass (“PPG”). Employees at the PPG facility received, stored, and shipped PPG’s

paint and painting-related products. 2

       Exel maintained and widely disseminated written anti-discrimination and

anti-harassment policies at all of its sites. Exel included those policies in its

Employee Handbook and posted and maintained them on its internal company

intranet. At the PPG site, a bulletin board adjacent to the breakroom entrance

displayed the policies as well. Exel trained all employees, including hourly

employees and managerial staff, on its anti-discrimination and anti-harassment

policies and reporting procedures. Exel also maintained the “NEAR” line, a

confidential hotline through which employees could anonymously raise grievances

or report instances of discrimination, harassment, or other employment issues.
       1
          Deutsche Post DHL employed around 470,000 employees in more than 220 countries
and territories. In 2005, DP DHL acquired Exel, a British logistics corporation, for 5.5 billion
euros. Exel became a wholly owned entity of DP DHL but retained the Exel brand for North
American markets until January 2016. Exel is now known as DHL Supply Chain.
        2
          The PPG site was one of the smallest on the Fairburn campus.
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                                   2. The Chain of Command

       The General Manager, a salaried position, was the highest-ranking manager

at each of Exel’s customer sites. The General Manager oversaw all of the site’s

operations.3 Next in the chain of command was the Operations Manager. The

Operations Manager, also a salaried position, reported directly to the General

Manager and oversaw the site’s supervisors. Supervisors, the final salaried

positions, reported to the Operations Manager and oversaw the hourly workers on

each shift. 4 Two or three employees served as supervisors at Exel’s PPG site,

which operated three work shifts during the period at issue.

       Supervisors oversaw shifts of “leads” and other hourly workers. Leads were

responsible for coordinating work among groups of hourly shift workers. For

example, an inventory lead at the PPG site delegated tasks among inventory

control clerks and other workers with inventory responsibilities. Aside from leads,

Exel employed approximately twenty to twenty-five hourly shift workers on its

PPG site. Shift workers included taskers, who functioned similarly to shipping

clerks, inventory control clerks, packagers, quality controllers, and pickers, who

pulled orders for outbound shipments.


       3
          The General Manager reported to the Director of Operations responsible for the
Fairburn campus. The Director of Operations maintained an office on the Fairburn campus.
        4
          Throughout the trial and in the parties’ briefing, supervisors are also referred to as Shift
Supervisors, Operations Supervisors, and Inventory Supervisors, often with overlapping and
unclear differentiation in duties. For our purposes, the term “supervisor” encompasses all
potential titles given to salaried employees who possessed supervisory authority.
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       Exel’s main corporate headquarters in Ohio housed Exel’s primary human

resources department (“Corporate HR”). The Fairburn campus also contained a

local human resources department (“On-site HR”). HR managers at the Fairburn

campus handled personnel issues arising there. This included investigating

discrimination claims and serving as a liaison between the Exel sites on the

Fairburn campus and Corporate HR. The HR staff at the Fairburn campus

included one HR manager and several HR representatives responsible for the Exel

sites on the campus.5

                              3. How Exel Filled Open Jobs

       The Hiring Manager at each site was responsible for interviewing and

selecting candidates to fill vacancies. Typically, there was one Hiring Manager at

each Exel site. On many sites, including the PPG site, the General Manager served

as the Hiring Manager. Rather than soliciting applications or resumes for job

openings himself, the Hiring Manager interviewed and made a final selection from

among the list of candidates provided by HR.

       When a job came open at an Exel site, the Hiring Manager submitted an

online job requisition for the vacancy in Exel’s Oracle database. 6 The job


       5
          The number of sites one HR representative oversaw depended on the size of the site and
the number of employees on the site. HR representatives had an office in the Campus HR
building.
        6
          Oracle is a third-party online database that assists HR with employment and personnel
logistics. At Exel, Oracle was housed on the company’s intranet and accessible by all HR
officers. The general public could not access Oracle.
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requisition included the job opening, date, position title, reasons why the position

needed filling, and a description of the duties the job entailed. After submitting the

requisition, the ball left the Hiring Manager’s court: Submittal of a job requisition

notified Corporate HR of a vacancy and the onus fell on it to post the job and

locate interested candidates. 7

       After Corporate HR got the job requisition from a site’s Hiring Manager, it

reviewed and approved or rejected the vacancy. After Corporate HR processed

and approved a requisition, Oracle automatically posted a job listing on a database

on Exel.com. This database contained all of the current job openings at Exel. All

candidates could view the database of job openings on Exel.com. Once Oracle

posted the open position on Exel.com, Corporate HR received both internal

applications (from current Exel employees) and external applications (from the

general public) through the database. Only Corporate HR received those

applications.8

       Once Corporate HR approved and posted a job requisition, candidates were

identified through three different protocols. The reason HR identified the

candidate for the job dictated the next steps in the process and governed how, if at

all, that candidate’s qualifications were weighed against those of other candidates.

       7
          HR employees, regardless of their role or whether they worked in Corporate HR or on
the Fairburn campus, could view the job requisition on Oracle.
        8
          Although Corporate HR was responsible for receiving and processing applications, On-
site HR employees could still access and view all applications through the database.
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The first protocol involved external candidates. External candidates applied on

Exel.com. Corporate HR received, processed, and vetted all external applications.

Corporate HR then presented the best candidates to the site’s Hiring Manager.

From there, the Hiring Manager interviewed them and made the final choice.

Internal applicants could also apply through Exel.com and have their applications

processed in the same fashion, in lieu of the internal process described below.

      The second protocol involved internal candidates who did not apply through

Exel.com. Internal candidates could complete an internal application for the open

position. The internal application was a short, one-page form completed by a

current employee to express interest in another position at the company. The form,

which could be handwritten, included the employee’s name, the position desired,

and the employee’s current supervisor. The current employee gave the internal

application to his or her supervisor, who forwarded it along until it reached on-site

HR. On-site HR would then send the internal application to Corporate HR.

Corporate HR would place the internal application with all other applications

received, both internal and external, and consider them together before forwarding

the best candidates on to the Hiring Manager.

      The third protocol involved Exel employees who either worked at sites that

were due to close or were set to be affected by downsizing. To prevent terminating

those employees from the company entirely, Exel maintained a company-wide


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priority transfer practice (“PTP”). 9 When a customer site at the Fairburn campus

was about to close or undergo a workforce reduction, On-site HR tried to match the

site’s employees with job openings at other customer sites on the campus for which

they were qualified.

      In the case of PTP transfers, On-site HR, rather than Corporate HR, handled

the process entirely. The HR employees familiar with the impending closure or

workforce reduction viewed the list of vacancies at other sites on Oracle and

attempted to match employees subject to layoff to those vacancies for which they

were qualified. Additionally, On-site HR provided the general manager of the

closing site a list of campus-wide vacancies to relay to employees subject to layoff.

The employees only needed to meet the minimum qualifications required for an

open position in order for On-site HR to consider them for a transfer into that

position. The motivation behind this was simple: Exel aimed to avoid laying off its

employees by identifying other opportunities for them within the company. Hence,

those employees at risk of imminent termination got first priority in filling vacant

positions, with no weighing of their qualifications against those of external or other

internal candidates not in imminent danger of being laid off. Since HR facilitated

the process on its own initiative, priority transfer employees were not required to

complete an application to be considered for an open job at another site.


      9
          Exel implemented the PTP on the Fairburn campus over a decade ago.
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        Once On-site HR matched a PTP candidate with an open position, it sent the

candidate’s information to the Hiring Manager. If the candidate met the minimum

qualifications needed for the job and passed an interview with the Hiring Manager,

the candidate got the job without any consideration of external or non-PTP internal

candidates. This transfer occurred regardless of whether the Hiring Manager

considered the priority candidate the “best” applicant or fit for the position.

                           4. Facts Leading to the Dispute at Hand

        In 2005, Exel hired Travis as an hourly worker at the PPG site. Within the

year, the General Manager promoted Travis to Inventory Control Lead, another

hourly position.10 In May 2006, Dave Harris joined Exel as the Operations

Manager of the PPG site. In November 2006, Harris became General Manager of

the PPG site.11

        During his tenure as General Manager, Harris filled three open supervisor

positions—February 2007, April 2008, and the at-issue June 2008 position.12 That

he filled the first two openings with PTP candidates is not in dispute. 13 It is also


        10
             At the time of this promotion, the General Manager was Bob Browne.
        11
             Dave Harris replaced Bob Browne when Browne left Exel’s PPG site in November
2006.
        12
           Harris testified he first learned about the PTP from Marie Murphy, a Campus HR
representative, in February 2007, when Harris filled the first supervisor vacancy following his
appointment as General Manager. Travis testified that Harris informed her about the PTP in
early 2007. Travis also testified that she spoke with Harris on numerous occasions regarding two
open shift supervisor positions; however, she could not remember dates.
        13
           In February 2007, Harris hired Calvin Sawyer into an open supervisor position. After
Harris completed a job requisition for the open position, Murphy gave Harris Sawyer’s name as a
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undisputed that he filled the third, the opening Travis wanted, with a PTP

candidate referred to him by Franklin Hudson, an On-site HR representative who

oversaw the PPG site and other sites on the Fairburn campus.

       The third supervisor position arose in June 2008, when Harris promoted

James “Kenny” Teal to Operations Manager. Pursuant to the standard practice,

Harris filled out a job requisition for the supervisor position vacated by Teal and

submitted it to Corporate HR. In mid-June, Corporate HR approved the requisition

and posted the job listing on Exel.com. Lisa Guydon, an On-site HR

representative who worked on the Fairburn campus at the time, testified that five or

six individuals applied online for the open position.

       Thereafter, Hudson presented Michael Pooler, who previously worked as a

quality assurance coordinator at Exel’s Hawaiian Tropic site, to Harris as a PTP

candidate for the supervisor position. At the time, the Hawaiian Tropic site was in


priority transfer. Sawyer’s current site downsized and Sawyer faced a layoff. Sawyer’s name
was the only name given to Harris. Harris interviewed Sawyer, learned of his extensive
management experience, and spoke with Sawyer’s supervisor. Harris hired Sawyer through the
PTP.
        In April 2008, Sawyer left the PPG site, creating a supervisor vacancy. Harris completed
a job requisition and Franklin Hudson, an On-site HR manager, gave Harris Jim Russell’s name
as a priority transfer. Russell worked as a supervisor at Exel’s Scotts site and faced a layoff.
Harris spoke with Russell’s former supervisor at the Scotts site and interviewed Russell. Russell
was the only candidate that Hudson gave Harris for consideration. Harris hired Jim Russell
through the PTP.
        After Harris filled the February 2007 position through the PTP, Travis said she spoke
with Tommy Chambers, the Operations Manager, about what she needed to do to advance
herself. Chambers told Travis that she could look for opportunities at other Exel facilities or
outside the company because no supervisor positions were currently available at the PPG site and
Harris believed Travis needed more time for development.
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the midst of a workforce reduction and had scheduled Pooler to be laid off.

Hudson and Pooler’s boss, Mike Blose, met with Pooler on a Saturday and

informed him of the potential availability of the position at the PPG site.

According to Travis, Blose told Pooler to keep quiet about the opening; otherwise,

the position would no longer be available. Hudson testified he recommended

Pooler to Harris as a PTP candidate because Pooler possessed supervisory

experience with Exel and met the minimum qualifications for the open position at

the PPG site.14

      Afterwards, Pooler’s position at the Hawaiian Tropic site was eliminated and

he waited at home for two weeks before Harris called him to setup an interview for

the job at the PPG site. Harris said he interviewed Pooler and considered him

qualified for the open position. Harris testified that because Pooler met the

minimum qualifications for the position and passed the interview, Harris

transferred Pooler into the job as he would any PTP candidate presented to him to

fill an open position. Harris claimed he never considered whether or not Pooler

was more or less qualified than Travis or any other applicant who applied

internally or through Exel.com, because Hudson gave him Pooler’s name as a PTP

candidate and he met the minimum qualifications for the job.




      14
           Pooler managed over fifty employees at in his role at the Hawaiian Tropic site.
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      Travis and the EEOC largely do not dispute this version of events, but they

do dispute the motives behind Harris’s failure to promote her into the job instead

of Pooler. Travis testified that before Harris put Pooler into the job, she told him

she wanted to be considered for it. She said that since the job involved inventory-

related duties that she believed she could handle with ease, she felt highly qualified

and motivated to take on the role. Travis did not apply formally for the open

position, either by applying through the website or completing an internal

application. She alleged that she never applied because the job listing posted on

Exel.com was for an “Operations Supervisor,” when in actuality the position

Kenny Teal vacated was an “Inventory Control Supervisor.” She said she was

interested in what she considered the real position: Inventory Control Supervisor,

not the fictitious “Operations Supervisor” position posted on the site. Moreover,

she alleged, although she would have formally applied anyway, Harris made clear

she wasn’t getting the job. Travis testified that Harris told her, “Contrice, just stop

asking me, I’m not going to do it. . . . I can’t, I’m not going to do it. I won’t do it.”

      After Pooler began working at the PPG site, Harris assigned Pooler to train

with Travis on the site’s inventory procedures and systems. Realizing she was

training Pooler for the supervisor position Teal vacated when he was promoted to

Operations Manager, Travis began looking for a new job out of frustration. She

found a new job with another company in mid-July 2008 and turned in her two-


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weeks’ notice. After she left Exel, Harris formally announced Pooler’s role as

Inventory Control Supervisor and gave him responsibility for the duties Travis

previously performed.

                                              B.

       Travis filed a discrimination complaint with the EEOC in January 2009. In

her complaint, Travis alleged that she was passed over for promotions at Exel

because of her gender. In response, Exel claimed it filled all open supervisor

positions during Travis’s tenure through routine application of the PTP.15 Exel

further alleged that Harris encouraged Travis to apply for the open position, but

Travis told Harris that “she wasn’t interested” in taking a supervisor position

because “everyone knew her and she thought it would be difficult to transition

from co-worker to supervisor.”

       The EEOC investigated Travis’s allegations and concluded that Harris did

not want to promote Travis because of her gender. It relied on Travis’s narrative

of past interactions with Harris and On-site HR, and testimony by Kenny Teal that

Harris told him “behind closed doors” that he would never make a woman a

manager. 16 Relying on this evidence, the EEOC concluded that Travis was


       15
          Lisa Guydon prepared Exel’s position statement in response to Travis’s EEOC
complaint.
       16
          Travis claimed that in 2007, she told On-site HR representative Marie Murphy that she
believed Harris would not promote her because she was a woman. Travis said she originally
complained to Murphy because she believed Murphy was the HR representative over her site and
because she had known Murphy a long time. Travis said Murphy told her she could not act on
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discriminated against because of her gender, and it brought this Title VII action

against Exel on Travis’s behalf.

                                                II.

       We review a district court’s denial of a Rule 50(b) renewed motion for

judgment as a matter of law (“JMOL”) de novo and apply the same standard as the

district court. Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000). We “draw



Travis’s complaint because Franklin Hudson, not Murphy, oversaw the PPG facility. Travis
alleged that Murphy advised her to document everything she could and then take her complaint
to Hudson. At the time of this alleged conversation, there were no supervisor vacancies at the
PPG site.
         Hudson oversaw the PPG site and it was his responsibility to investigate claims of
discrimination. Travis testified that Hudson said “his best advice was to tell [her] to look into
transferring to another site.” However, on cross-examination, Travis admitted that she did not
tell Hudson that she felt Harris discriminated against her because she was a woman. Travis
believed this conversation occurred in early 2008. Hudson testified that he had no memory of
speaking with Travis in his office or of Travis telling him that she was discriminated against due
to her gender. Hudson testified that if she had done so, he would have started an investigation
pursuant to the company’s protocol for handling discrimination complaints. There were no
supervisor vacancies at the time of Travis’s conversation with Hudson, either. Hudson was
promoted to HR Manager in 2008, after the alleged conversation with Travis.
         Exel had no written record of this conversation, or any other conversation between Travis
and an HR representative. Additionally, Exel had no record of Travis utilizing Exel’s NEAR
hotline for voicing complaints and reporting discrimination. Exel had no record of any other
discrimination complaints made against Harris by Travis or any other employee.
         Teal testified that he told Harris that Travis would be a strong candidate for a promotion
to supervisor. Teal said that Harris responded by claiming that Travis lacked the necessary
qualifications and experience to hold a supervisor position, and that he would not put a woman in
a management position. Teal never reported this comment to HR. On direct examination at trial,
Teal testified that the comment was made after Harris promoted Teal to Operations Manager in
2008. On cross-examination, Exel’s attorney introduced an affidavit made by Teal in 2010—the
first time Teal ever stated that Harris made the remark. In this affidavit, Teal stated that Harris
made the remark in 2007. When further questioned, Teal testified that he could not recall the
dates of any of these conversations, or the month or year in which Harris said that he would not
put a woman in a management position. Teal did not tell anyone about the comment when
Travis resigned in 2008, or during his conversation with Lisa Guydon, one of Exel’s Campus HR
managers, during her investigation into Travis’s EEOC complaint. Exel fired Teal in June 2009
after Teal faced allegations and formal complaints of sexual harassment.
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all factual inferences and resolve all credibility determinations in favor of the non-

moving parties.” Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344 (11th

Cir. 2000). Nevertheless, to survive a JMOL motion, the non-movant must

produce “more than a mere scintilla of evidence suggesting that reasonable minds

could reach differing verdicts.” Abel, 210 F.3d at 1337. Put differently, there must

be a “substantial conflict in the evidence.” Id. Denial of a JMOL motion is

appropriate only when “reasonable and fair-minded persons in the exercise of

impartial judgment might reach different conclusions.” Id. at 1337 (internal

quotations omitted).

      In a Title VII discrimination case, the plaintiff must prove that an unlawful

employment decision took place by preponderance of the evidence. Walker v.

Mortham, 158 F.3d 1177, 1184–85 (11th Cir. 1998). A complaining party

establishes an unlawful employment practice under Title VII by demonstrating that

gender “was a motivating factor for any employment practice, even though other

factors also motivated the practice.” 42 U.S.C. § 2000e–2(m). She can do this by

either “persuading the court that a discriminatory reason more likely motivated the

employer,” or “by showing that the employer’s proffered explanation is unworthy

of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct.

1089, 1095 (1981). In other, simpler words, the plaintiff must show that the




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nondiscriminatory explanation offered by the employer “was not the true reason

for the employment decision.” 17 Id.

       In this case, a reasonable factfinder could not conclude, on the evidence

presented, that Exel’s proffered nondiscriminatory motive for denying Travis the

job was pretextual. The evidence Travis and the EEOC presented, when construed

in the light most favorable to their case, established Dave Harris’s general bias

toward women in the workplace. However, that evidence did nothing to disprove

Exel’s assertion that the specific personnel position at issue in this case was filled

via routine application of its priority transfer practice—an assertion that was

corroborated by multiple witnesses and documentation and admitted by Travis and

the EEOC’s own witnesses. Thus, the evidence was insufficient to lead a

reasonable factfinder to conclude that Harris’s alleged bias was a motivating factor

behind the decision—a decision that HR initiated and facilitated, and that Harris

made wholly pursuant to the company’s standard protocol.

                                                a.

       This case turns on whether or not Exel’s decision to place Michael Pooler

into the supervisor job at issue was a “routine application” of the PTP. Exel says

that the PTP process was open-and-shut: if a candidate had the minimum

       17
          Before making this showing, the plaintiff must first show that she was qualified for the
job and either that she applied for the job or that applying for the job would have been a “futile
gesture” under the circumstances. Burdine, 450 U.S. at 253, 101 S. Ct. at 1094; Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 365–66, 97 S. Ct. 1843, 1870 (1977).
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qualifications and passed an interview with his prospective new boss, he got the

job, simple as that. In Exel’s view, that’s exactly what happened here: Dave Harris

never considered Travis or any other interested candidate besides Pooler, not

because of sex, but simply because Pooler was given priority through the PTP and

passed the interview. Travis and the EEOC disagree. They argue that the PTP was

“merely pretextual.”

      That the PTP existed went undisputed at trial. Franklin Hudson, the On-site

HR Manager assigned to the PPG facility at the time Pooler’s transfer took place,

testified the practice existed since at the least the time he joined Exel in 2005. He

reported that he “placed over a hundred associates” in new facilities using the

practice when two different facilities closed in 2007. Hudson explained the

rationale for the practice was “to save the company, to cut down on unemployment

claims, litigation, and to simply place that associate.” In fact, Hudson testified that

Harris filled an open supervisor position in 2008 at the PPG facility by transferring

a supervisor named Jim Russell from another Exel facility that was due to close.

And Harris testified that he filled another open supervisory position in 2007

(before Hudson assumed oversight of the PPG facility) by transferring Calvin

Sawyer from the company’s soon-to-be-closed Icon facility. Travis’s witness,

Tommy Chambers, agreed regarding Sawyer’s transfer.




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       Other witnesses corroborated this testimony. Lisa Guydon, an On-site HR

manager who worked at Exel’s Fairburn campus, said the PTP was a “company-

wide” practice. She testified that from 2007–08, Exel closed down or reduced its

workforce in four of its sites located on the Fairburn campus: Kellogg, Icon,

Scotts, and Hawaiian Tropic. She estimated that the company transferred “over

200 associates” from those facilities to other sites. Travis and the EEOC did not

contest any of those assertions, and Travis admitted that she knew of the program’s

existence before Pooler’s June 2008 transfer.

       Nevertheless, Travis and the EEOC argue that, with respect to Pooler’s

transfer, the PTP was a smokescreen to cover for Dave Harris’s bias toward

women in the workplace. To establish that bias, they cite testimony by Travis and

by Kenny Teal, the employee whose promotion made way for Pooler’s transfer.

Travis testified that Harris treated women at the PPG facility differently than he

treated men. She reported that Harris “limited his contact with pretty much all the

females in [the PPG] office.” Teal testified that, “in his office behind closed

doors,” Harris told Teal on “a couple” occasions that Harris “said that he would not

put a woman into a management position.” 18 Teal further testified that in his seven


       18
           Teal’s testimony was conflicted as to when Harris supposedly told Teal he would never
put a woman into a management position. In his deposition, he stated that Harris made the
comment in 2007, but he testified at trial that Harris made the comment in 2008, around the time
he promoted Teal to Operations Manager and transferred Pooler into Teal’s old job. I construe
this testimony in Travis and the EEOC’s favor and thus accept that Harris made the comment in
2008.
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years with Exel, “there was never a female in any management position.” In

addition, Tommy Chambers, a supervisor at the PPG facility in 2008, testified that

Harris was “more standoffish towards females” than he was toward men. In fact,

according to Travis and Chambers, Harris so disdained dealing with women in the

office that he told Travis that he wanted her “to manage the ladies in the office”

and asked Chambers to “address them” even though they reported directly to

Harris and did not answer to Chambers.

       Additionally, Travis stated that she went to On-site HR to express her

feeling that she was being treated differently by Harris because she was a female.

She related that she first spoke with Marie Murphy, an HR coordinator at the site,

and that Murphy said she could relate to Travis’s concerns because she too had

been “overlooked or passed on for promotion” because of her gender. However,

according to Travis, Murphy could not help her because the HR manager

responsible for the PPG site was actually Franklin Hudson. So, Travis testified she

then went to Hudson in early 2008 to voice her concerns. She asserted that

Hudson gave her concerns short shrift. She testified that Hudson “seemed like he

had somewhere to go” and that “his best advice was to tell [Travis] to look into

transferring to another site.”19



       19
          However, Travis conceded she didn’t tell Hudson specifically that she felt she was
being discriminated against because she was a woman.
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      Travis and the EEOC next point to circumstantial evidence surrounding the

events leading up to Michael Pooler’s transfer as proof that Harris’s general

animus was a motivating factor in not considering Travis for the job. In their view,

a reasonable factfinder could draw this inference based on three observations.

First, they argue that the “Operations Supervisor” job Harris posted in June 2008

was a “phantom” job opening designed to conceal the true position that was open,

namely the “Inventory Control Supervisor” position. Second, they argue that Exel

did not follow the procedures it claimed were part of the PTP. Third, they point to

comments Harris allegedly made to Travis when she expressed interest in the job,

as well as other circumstantial evidence of Harris’s alleged bias, including that

Travis was qualified for the position yet was not considered.

      To establish that the “Operations Supervisor” job Harris posted was a

“phantom” job, they refer to Teal’s testimony that the job Teal performed prior to

his promotion was an “Inventory Control Supervisor” job and that Harris told

Pooler his title was “Inventory Control Supervisor.” They also point to Travis’s

testimony that Harris told his staff in a meeting that he was making Teal

“Inventory Control Supervisor,” testimony that other supervisors and PPG’s on-

site representative called Teal’s job “Inventory Supervisor,” and to the letter Pooler

received when his position at the PPG site was eliminated, which stated that

Pooler’s title was “Inventory Management Supervisor.” At trial, Travis and the


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EEOC presented an announcement Harris distributed to employees at the PPG site

that stated Teal had moved up “through the management ranks as operations

supervisor, training supervisor, inventory management supervisor, systems ‘super

user’ and special service projects supervisor.” (Emphasis added).

      In their view, this evidence, along with the fact that Teal said he only

supervised Travis and no one else, confirmed that the vacancy left open was in fact

“Inventory Control Supervisor.” From this, they argue one could infer that Harris

posted the job requisition for an “Operations Supervisor” on Exel’s website with

the “specific intent” to deceive Travis into not applying for the “Inventory Control

Supervisor” job, the true position left vacant by Teal’s promotion and the job

Travis really wanted.

      Next, Travis and the EEOC argue that the evidence demonstrated that Exel

did not follow the procedures normally used in the PTP when it moved Pooler into

the job. They argue that Exel deviated from the standard protocol in two respects:

first, Pooler was in fact “promoted” and not “transferred”; and second, the transfer

was done in secret rather than openly. With respect to the former, they base this

assertion on the fact that Pooler’s job title prior to the transfer was “Quality

Assurance Coordinator” and did not include the term “Supervisor,” that he did not

have supervisory responsibilities, and that he did not have inventory control

experience. With respect to the latter, they argue that Exel deviated from standard


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procedures when its employees told Pooler to keep quiet about the position at the

PPG site while his transfer was still pending. Pooler testified that when he was

summoned to meet with Franklin Hudson and Mike Blose, the General Manager at

the site from which he had been laid off, to talk about the opening at the PPG

facility, Blose told him to “keep your mouth shut” and not to say a word about the

position opening, else “the position w[ould] not be available.” They argue that a

factfinder could infer from this that those employees told Pooler to keep quiet

about the opening in order to keep Travis in the dark about the job.

      From these two alleged policy deviations, Travis and the EEOC contend that

a reasonable factfinder could infer that Exel and Harris used the PTP as a pretext to

cover up the true, discriminatory motive behind their failure to consider Travis for

the job. See Brown v. Am. Honda Motor Co., 939 F.2d 946, 951 (11th Cir. 1991)

(“Oftentimes, departures from well established guidelines are indicative of

attempts to conceal a discriminatory motive through the use of ad hoc criteria

which allow the defendant to cloak a discriminatory intent in ostensibly neutral

rationales.”).

      Additionally, Travis testified that when she learned of Teal’s promotion to

Operations Manager and went to Harris to express her interest in backfilling Teal’s

old position as Inventory Control Supervisor, Harris told her he was simply never

going to make her a supervisor. She testified, “at that time [Harris] told me he was


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not going to make me, like, flat out, Contrice, just stop asking me, I’m not going to

do it. . . . I can’t, I’m not going to do it. I won’t do it.” Travis and the EEOC

further point out that Harris admitted in his testimony that he never considered

Travis for the job. Thus, they argue, taken in concert with the circumstances

surrounding Pooler’s placement in the position and the testimony about Harris’s

prior comments about and behavior towards women, Harris’s declaration to Travis

shows that Travis’s gender played a part in Harris’s selection of Pooler over her for

the position.

      Finally, Travis and the EEOC point to undisputed trial testimony by

numerous witnesses that Exel did not place any women into management positions

at the PPG site for many years as additional circumstantial evidence of

discrimination by Harris and Exel.

      In Travis and the EEOC’s view, all of this circumstantial evidence

established that Harris’s bias lurked in the background at the time he filled the

supervisor position. And, they argue, the circumstances surrounding Pooler’s

transfer established that that bias lay at least in part behind Harris’s decision not to

promote Travis into the job. In their view, this was enough to allow a reasonable

factfinder to conclude that the PTP was pretextual.

                                           b.




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      Suitable as it may be to establish Harris’s general bias toward women in the

workplace at the JMOL stage, the evidence Travis and the EEOC cite to support

their case falls short concerning the ultimate issue in this case. Without question, a

plaintiff can rely on generalized sexist comments as circumstantial evidence to

show employer discrimination. But acting alone, that evidence cannot win the day

for a plaintiff if it is not reasonably linked to the alleged discriminatory

employment action in question. The evidence must allow the factfinder to

reasonably infer that such animus was a “motivating factor” behind the adverse

employment action at issue. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109

S. Ct. 1775, 1791 (1989) (“Remarks at work that are based on sex stereotypes do

not inevitably prove that gender played a part in a particular employment decision.

The plaintiff must show that the employer actually relied on her gender in making

its decision. In making this showing, stereotyped remarks can certainly be

evidence that gender played a part.”); Quigg v. Thomas Cty. Sch. Dist., 814 F.3d

1227, 1232–33 (11th Cir. 2016). Put simply, the biased decisionmaker must have

the opportunity to act on his bias.

      Construed in Travis and the EEOC’s favor, Teal’s testimony about Harris’s

comments about women, taken in concert with Travis and Chambers’ testimony

about his behavior toward women in the office, would allow a reasonable

factfinder to conclude that Harris harbored discriminatory animus toward female


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employees at Exel’s PPG site, including Travis. The same is true with respect to

Harris’s alleged declaration to Travis that he was “not going to do it” when

informed by her of her interest in being promoted into the job Teal vacated. But

the evidence the Majority relies on to demonstrate that Harris had any chance in

the process to put his bias into action cannot perform that function.

      Even when all inferences are drawn in Travis and the EEOC’s favor, the

evidence in the record conclusively established that the PTP existed and was used

frequently at the PPG site and other Exel sites on the Fairburn campus. The

evidence further established that HR, not general managers like Harris, facilitated

PTP transfers and initiated them by identifying suitable candidates. And the

evidence conclusively established that PTP candidates who were minimally

qualified transferred directly into their new jobs without competing against other

interested, non-PTP applicants. While it is true that general managers like Harris

had final say over whether a PTP candidate got the job, the evidence conclusively

established that rejection of a qualified PTP candidate rarely if ever occurred.

Indeed, Franklin Hudson testified that in his “six or seven years” with the

company, a general manager never vetoed a single one of the hundreds of PTP

transfers he oversaw. Lisa Guydon testified that she never saw such a veto in ten

years of employment with Exel. Clearly, the company expected general managers

to give PTP candidates the benefit of the doubt: Guydon testified that a general


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manager who turned down a PTP candidate would have to explain the basis of that

decision to his superiors. The policy was simple: if you are a PTP candidate and

you qualify, you get the job.

      Turning to Pooler’s transfer specifically, considered in its most favorable

light, the evidence Travis and the EEOC cite does not cast suspicion on Exel’s

contention that the PTP functioned as it normally did with respect to Pooler. This

is so for multiple reasons. First, there is insufficient evidence upon which to

reasonably conclude that Harris concealed the true position he was seeking to fill

when he posted a requisition for “Operations Supervisor” after he promoted Teal.

Whether it was called “Operations Supervisor” or “Inventory Control Supervisor,”

the position Pooler filled was the third supervisor job at the PPG site. It is

undisputed that Teal was previously promoted to Operations Supervisor in 2005

(before Harris became General Manager of the PPG site). Teal himself testified

that the PPG site always had three supervisors (one for each of the site’s three

work shifts) until the site downsized the third shift and no longer needed a

supervisor to manage the skeleton crew that remained on that shift. In fact, he

testified that he was the third-shift supervisor prior to the shift’s downsizing. Teal

further testified that, counting the “Inventory Control Supervisor,” the PPG site

continued to have three supervisors after the downsizing. With regard to his

“transfer” to the Inventory Control Supervisor position from Operations


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Supervisor, he testified that he never applied for the job, filled out any paperwork

to be considered for the job, or received a pay raise because the job was just a

“lateral transfer.”

       Further, the evidence Travis and the EEOC cite in support of their

contention that the “Operations Supervisor” position was a “phantom” job simply

buttressed Exel’s argument that Harris posted the opening to hire a third

supervisor. The notice Harris created to announce Teal’s promotion stated that he

performed five different functions during his time at the PPG site prior to his

transfer. Teal himself testified that those listed “positions” were “just some of the

roles that they asked [him] to perform while [he] was supervisor.” In other words,

all of those titles simply described different responsibilities included among the

duties of a supervisor at the site. So, to conclude that “Inventory Control

Supervisor” was a separate, formal position at the PPG site, the factfinder would

also have to conclude that the other four titles mentioned in the announcement

were separate positions as well. Yet no evidence in the record suggests this was

the case, or even suggests this was possible.

       It is undisputed that the position Harris posted when he submitted the job

requisition to Corporate HR was for an “Operations Supervisor.” It is also

undisputed that the offer letter issued to Pooler when he took the position listed the

job as “Operations Supervisor.” And Hudson testified that Corporate HR had to


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approve job requisitions before those jobs were posted. What’s more, Guydon,

Hudson, and Harris all testified that HR—not general managers like Harris—

facilitated the PTP by identifying candidates who were about to be affected by site

closures or workforce reductions and forwarding those candidates to hiring

managers seeking to fill open positions. Guydon explained that, by matching up

qualified employees whose jobs were about to be eliminated to unfilled vacancies

at other facilities, On-site HR was “the traction in trying to identify an

opportunity” for associates affected by site closures and downsizings. This was

true with respect to Pooler’s transfer as well: both Hudson and Harris testified that

Hudson presented Pooler to Harris as a candidate to fill the position left open by

Teal’s promotion, along with a positive recommendation, when the Hawaiian

Tropic facility was winding down its operations. And Travis and the EEOC did

not dispute that Hudson provided this referral to Harris.

      Thus, to find that Harris sometimes referred to the supervisor position as

“Inventory Control Supervisor” and other times called it “Operations Supervisor”

specifically to mislead Travis into not applying for it, the factfinder would have to

conclude that both On-site HR and Corporate HR managers colluded to help Harris

hide his bias and fool Travis, not just in hindsight but in real time. Hudson

testified that his off-site higher-ups in Corporate HR had to approve all job

requisitions submitted by site managers before they were posted and filled. So, to


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conclude that the job posting was a sham to deceive Travis, the factfinder would

have to likewise conclude that those higher-ups endorsed the existence of a

fraudulent “Operations Supervisor” position that did not really exist. And they

would have to endorse screening, interviewing, and transferring or promoting

interested candidates into that non-existent job, only to later move them into the

real job. But Travis and the EEOC presented no evidentiary fulcrum upon which

this conclusion could rest.

       Next, Travis and the EEOC’s assertion that Exel failed to follow the

standard PTP procedure is unsupported by the evidence presented. To begin, the

evidence failed to establish that Pooler was promoted, not transferred. Travis and

the EEOC rely on the fact that Pooler was a “Quality Assurance Coordinator” at

the Hawaiian Tropic site before he moved into the supervisor position at the PPG

site. Hudson testified that although “their job description[s] may be different,” in

general, coordinators at Exel were “a step under supervisor[s],” and that

coordinators (Pooler’s previous title) and leads (Travis’s title) were “equal in pay.”

Though this might have been true in general, the undisputed evidence showed that

this differed in Pooler’s case. Both Pooler and Franklin Hudson testified that

Pooler “supervised a large number of employees” and wielded “[c]ontrol over the

entire quality operations” at the Hawaiian Tropic site before transferring. And

Pooler’s pay classification did not change when he took the new job. He was

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classified as salaried, not hourly, in his old job, and he remained salaried in the

new position. Pooler, testifying as part of Travis’s case-in-chief, agreed that this

was the case. Further, all of the paperwork Pooler signed when he moved to the

PPG facility listed his move as a “transfer.” Pooler testified that when he moved

into the position at PPG from his prior job at Exel’s Hawaiian Tropic site, he was

told, “you don’t have to do anything, it’s just an internal transfer.” When asked on

cross-examination whether he considered the move to be a transfer, Pooler said

“yes.” By contrast, Travis does not dispute that she was an hourly worker whose

job title was “Inventory Lead,” a position Travis admitted was “below supervisor.”

She further admitted that while she at times oversaw other workers as Inventory

Lead, she did not have “write up” authority over them. To put Travis into the

position, then, Exel would have been required to increase Travis’s pay, convert her

position into a salaried rather than hourly position, and increase her supervisory

authority. What’s more, Harris testified without dispute that to transfer Pooler into

Travis’s Inventory Lead position instead, Exel would have to demote Pooler and

cut his pay.

      Further, the evidence conclusively established that a PTP candidate’s

qualifications, not his formal position in the company hierarchy, dictated whether

he got the job. Hudson explained that the central inquiry with respect to job

openings was whether the potential transferee was qualified for the position:


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      Okay, that practice, the priority transfer practice is if a site is closing
      or if there is a downsizing. So that would mean any associate at that
      site would be losing their job. So what we would do as H.R., . . . we
      ensure that we try our best to make sure that no associate lose[s] their
      job. So if we [have] ten sites and if they got openings, those
      associates if they meet the minimum qualifications will be placed in a
      job.

(Emphasis added). Guydon agreed that the prospective transferee’s qualifications

were central to his placement. She described the priority transfer practice thusly:

      Priority simply means that we are going to give that person that we
      have identified who is going to be without an opportunity a shot at
      interviewing for that position. So they interview for the position. If
      their qualifications meet and they pass the interview process, they are
      automatically going to receive that position.

(Emphasis added). Neither Exel nor Travis and the EEOC presented evidence

suggesting otherwise.

      And Exel did not deviate from this requirement when it moved Pooler into

the supervisor job. Exel presented evidence that Pooler possessed the

qualifications needed for the job at the PPG site. Both Pooler and Franklin Hudson

testified that Pooler “supervised a large number of employees” and wielded

“[c]ontrol over the entire quality operations” at the Hawaiian Tropic site before

transferring. This evidence is crucial, because even if it is accepted that Pooler’s

transfer was a “promotion” instead of a “lateral transfer,” the transfer was based on

the candidate’s qualifications, just as all PTP transfers were. Travis and the EEOC

rely on Hudson and Guydon’s testimony to establish that PTP transfers were


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always “transfers” and not “promotions,” but as shown above, Hudson and Guydon

both testified that the potential transferee’s qualifications, not his formal job title,

governed whether he fit the open position.

      Similarly, this evidence also answers the argument that Travis’s greater

qualifications for the job circumstantially supported a finding of discriminatory

intent on Harris or Exel’s part. Accepting as true the assertion that Travis was

more qualified than Pooler at the time of the transfer, this fact is irrelevant. The

central feature of the PTP, as explained by Hudson, Guydon, and Harris, was to

give minimally qualified employees who were about to be laid off priority over

other internal and external candidates, including those who might be more

qualified. With regard to candidates interviewed through the PTP, the dispositive

question was whether they met the minimum qualifications for the open position

and passed the interview, not whether they were more qualified than other, non-

PTP candidates.

      With respect to the allegation that Exel deviated from the standard PTP

protocol when Hudson and Blose told Pooler to “keep quiet” about the position, I

give Pooler’s testimony the full benefit of the doubt and thus accept as true that

this conversation took place. I accordingly accept the argument that this

constituted a deviation from Exel’s standard practice when it made use of the PTP.

Even so, the conversation is not reasonably probative of a discriminatory cover-up.


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       To construe Blose and Hudson’s instruction to Pooler as circumstantial

evidence of discrimination, a factfinder would have to conclude that both Hudson

and Blose were in on Harris’s conspiracy to deny Travis the position. But this

conclusion cannot reasonably rest on this one alleged conversation. A General

Manager at a facility on the cusp of closing might choose to keep potential

promotions private for many reasons. For example, he might want to avoid

drawing undue attention to the transferee that could result in bad blood between the

transferee and those whose jobs are to be completely eliminated. He might want to

stave off the spread of rumors about possible position openings before those

openings are certain, so as not to create false hope in the minds of those about to

lose their jobs. Or he might even be doing so in a show of improper favoritism—

perhaps unlawful or perhaps not—toward one of his employees.

       But here, to adopt Travis and the EEOC’s view of those events, the

factfinder would have to read this instruction not as proof that Blose was biased

toward his female employees, but that both Blose and Franklin Hudson willingly

signed on to Harris’s discriminatory conspiracy to shut one of Harris’s employees,

namely Travis, out of the job.20 Standing alone, Blose’s instruction to “keep your


       20
          As the Majority acknowledges, the District Court found no evidence that HR or
Harris’s superiors had actual knowledge that Harris discriminated against Travis in transferring
Pooler into the position. In addition to the reasons discussed here, this finding by the District
Court further precluded a finding that HR colluded with Harris to deny Travis the position. It
stands to reason that HR could hardly have joined Harris’s conspiratorial plan, given that it had
no knowledge of that plan.
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mouth shut” cannot establish the existence of such a sprawling plot. The record

does not even establish that Blose knew Travis or knew who she was at the time.

      Moreover, Travis and the EEOC did not present any evidence that suggested

Harris orchestrated the events leading to Pooler’s placement in the job. Travis and

the EEOC did not dispute that Harris filled out a job requisition for an open

supervisor position. They did not dispute that Corporate HR approved the vacancy

per the company’s normal requisition process. And they did not dispute that

Hudson approached Harris about placing Pooler in the position by way of the PTP.

In light of those facts, a reasonable factfinder could not take the mandate issued to

Pooler to keep the transfer under wraps far enough to reach the conclusion that the

mandate established the existence of a discriminatory cover-up.

      Further, taken in conjunction with the overwhelming evidence establishing

the PTP’s existence and operation in placing Pooler into the job, Harris’s

admission that he did not consider Travis does not support the finding that

discriminatory intent motivated his decision to deny her the promotion. To the

contrary, in light of the numerous, uncontroverted evidentiary sources establishing

the PTP’s existence and its routine operation in filling the position Teal vacated,

the only reasonable inference that can be drawn from this admission is that Harris




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did not consider anyone other than Pooler for the job. 21 No other candidates,

including Travis and the other five or six candidates who applied, were ever

considered, because that was how the PTP worked. If a candidate identified

through the PTP met the minimum qualifications and passed the interview, he got

the job—hence the term “priority” transfer.

       As to the undisputed fact that no female was ever made supervisor at the

PPG site during the time Harris worked there, Travis and the EEOC do not present

any evidence that would lend this testimony any measure of statistical significance.

See, e.g., Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 (11th Cir.1994) (noting

that, “to be relevant,” evidence of a company’s failure to promote black

employees into open management positions would have to be coupled with

“evidence as to how many blacks applied and were rejected and evidence of the

success rate of equally qualified white applicants”). Without such corroboration,

this evidence is merely “anecdotal” and “virtually meaningless.” See Evans v.

McClain of Georgia, Inc., 131 F.3d 957, 963 (11th Cir. 1997) (quotations omitted)
       21
           The Majority places great weight on its determination that “Harris knew about Travis’s
interest before he ever received Pooler as a PTP candidate or even learned that he would receive
a PTP candidate at all.” See Majority Opinion supra. This, in the Majority’s view, would allow
a reasonable jury to find “that Harris could have promoted Travis when she approached him
about Teal’s vacated position, without going through the PTP process at all.” Id. But the record
does not indicate how much time elapsed between Travis’s conversation with Harris about the
open position and Harris’s receipt of Pooler as a PTP candidate. So, a factfinder would have to
assume without an evidentiary foundation that Harris had time to consider and reject Travis’s
candidacy before the PTP process began, and that his rejection was motivated by bias toward
women rather than by simple adherence to the PTP process. In the face of the evidence
concerning the PTP’s routine operation presented in this case, I would not hold that this string of
suppositions amounted to a reasonable finding.
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(quoting Brown v. American Honda Motor Co., 939 F.2d 946, 952–53 (11th Cir.

1991), cert. denied, 502 U.S. 1058, 112 S.Ct. 935 (1992)). Moreover, Travis and

the EEOC did not dispute that no one was promoted to supervisor in that time

frame: Exel’s witnesses testified, and Travis and the EEOC did not dispute, that

two supervisor positions came open prior to the position at issue in this case, and

both of those positions were filled through the PTP.

                                         *       *      *

      In sum, Exel faced three options with respect to Pooler’s fate. It could let

him walk when the Hawaiian Tropic site closed.22 It could cut his pay and demote

him to an hourly position, in order to allow Travis to leapfrog him into the

supervisor job. Or it could follow its standard practice and transfer him into the

vacant supervisor position at the PPG site—with no changes to his pay or salary

classification. So far as all the evidence presented by both parties indicates, Exel

simply chose the latter.

      Thus, the factfinder was left with a rather simple evidentiary picture. Once

Harris promoted Teal and filed a job requisition with Corporate HR, he waited.

Corporate HR approved the requisition and posted the job. On-site HR saw the job

posting, identified Pooler as an employee on the verge of joblessness due to his

site’s closure, and presented him to Harris as a PTP candidate. Harris interviewed


      22
           Indeed, Pooler was already sitting at home when he got the job at the PPG facility.
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him, determined he was minimally qualified, and hired him without considering

any other internal or external candidates. Open and shut. This series of events was

entirely consistent with Exel’s well-established and undisputed PTP procedure.

What Harris did in this process to act on his alleged bias toward Travis, how he

could have done so, or whether he could have done so at all, went unanswered.

      As a result, the evidence was insufficient to support the finding that Harris’s

bias toward women motivated that decision, in whole or in part. Thus, the District

Court should have granted Exel’s JMOL motion.

      Accordingly, I respectfully dissent.




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