                                                PUBLISH

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 97-2070
                     ________________________

                 D.C. Docket No. 94-218-CIV-T-17C

JERRY E. TIDWELL,

                               Plaintiff-Appellee-
                               Cross-Appellant,

                     versus

CARTER PRODUCTS,

                                Defendant-Appellant-
                                Cross-Appellee,

              ______________________________________

         Appeals from the United States District Court
              for the Middle District of Florida
            ______________________________________
                       (February 26, 1998)

Before ANDERSON and CARNES, Circuit Judges, and O’KELLEY,* Senior
District Judge.

O’KELLEY, Senior District Judge:

     Carter Products appeals from a judgment entered against it

pursuant to a jury verdict in favor of Jerry Tidwell in this age

discrimination case under the Age Discrimination and Employment

Act, 29 U.S.C. § 621, et seq. (the ADEA).    Carter challenges the

district court’s denial of its motion for judgment as a matter


          *
           Honorable William C. O’Kelley, Senior U.S. District
Judge for the Northern District of Georgia, sitting by
designation.

                                1
of   law   on    Tidwell’s     claim    that      his    termination       by   Carter

constituted age discrimination as well as the district court’s

award of equitable relief in the form of front pay to Tidwell.

In his cross-appeal, Tidwell challenges the court’s grant of

judgment    as    a   matter    of     law   to    Carter      on    the    issue   of

willfulness.       The dispositive issue in this appeal is whether

Tidwell    produced     adequate       evidence         to   allow   a     reasonable

factfinder to disbelieve Carter’s proffered nondiscriminatory

reason for terminating Tidwell.              We conclude that he did not and

that Carter was entitled to judgment as a matter of law for that

reason.
                                       Facts

      Carter Products manufactures and sells health and beauty

care products.        Tidwell began his employment with Carter as a

district sales manager in 1972.                He later served as Territory

Representative for Carter’s central Florida region, working out

of Tampa, until his April 23, 1993 termination at the age of

fifty.

      Tidwell alleges that he was terminated because of his age.

Carter contends that Tidwell’s position was eliminated as part

of a nationwide reduction-in-force (RIF).                      Carter eliminated

twelve positions, from an original force of 58.                      While four of

the original 48 sales employees over 40 were discharged, 19 were

retained.

      During its reorganization, key accounts, including many of

Tidwell’s, were transferred to regional and divisional managers.


                                         2
Carter also developed a new sales philosophy, beginning to

outsource to independent contractors.               The number of sales

territories were reduced in order to reduce costs, and it was

determined that Florida could be served by a single territory

manager.    At that time there were two territory managers –

Tidwell in Tampa (age 50) and James Booth in Miami (age 26).

Carter determined that it would be best served by a Miami

territory, contending that Miami had more direct accounts and

more independent stores requiring individual attention.               Carter

contends that Tidwell’s performance had nothing to do with this

decision.      The Tampa territory manager position was therefore

eliminated,     its    accounts   to   be   absorbed   by   other   workers.

Similar decisions were made throughout the country, with no

apparent pattern of retention according to age (several older

employees were retained while their younger counterparts were

eliminated).      Carter explained its methodology used in the

selection process: If there was only one sales representative in

the area to be eliminated, that person would be released; if

there   were    more    than   one     representative,      their   relative

performances would be compared.            Carter characterized Tidwell’s

situation as falling into the first category.
                           Procedural History

     The EEOC issued a “no reasonable cause” determination to

Tidwell’s charge of discrimination.            The EEOC found no cause to

believe Carter had violated any statutes in terminating Tidwell.

“The evidence obtained did not support [Tidwell’s] allegation of


                                       3
unlawful employment discrimination.”          DX 20.   The EEOC explained

in   a    memorandum    that   plaintiff’s    low   rating    in    his   1992

evaluation “signifies that [Tidwell] was performing below the

reasonable      expectations    of   [Carter].”        It    reasoned     that

plaintiff’s performance “was a factor along with [Carter’s]

other reasons to terminate [Tidwell’s] employment.” DX 20.

     Tidwell then filed an action in the District Court for the

Middle District of Florida, claiming he was discharged because

of his age in violation of the ADEA.           Before the jury, Tidwell

attempted to prove his claim under a disparate treatment theory,

which requires proof of intentional age discrimination. Tidwell

offered several indications of age discrimination: (1) his 1992

performance evaluation; (2) Carter’s retention of Booth and the

Miami      territory;   (3)    inconsistent    reasons      given   for    his

termination.

         The trial court denied Carter’s motions for judgment as a

matter of law at the close of Tidwell’s case.                  Carter then

offered its nondiscriminatory reason, the RIF, for Tidwell’s

termination. The court denied Carter’s motion for judgment as a

matter of law at the close of all the evidence.                     The jury

returned a verdict for Tidwell and awarded $60,000 in lost wages

and benefits.       The amount was doubled as liquidated damages

because the jury found the discrimination to be a willful

violation of the ADEA.          The court reserved entering judgment

until it concluded a supplemental hearing regarding valuation

and certain evidence of Tidwell’s side business which he had


                                     4
concealed during discovery.             The court found that Tidwell had

indeed   lied   about    his    side    business     but   rejected        Carter’s

unclean hands defense to preclude a front pay award.                       Instead,

the court ordered a set-off against the front pay award in the

amount of Carter’s expenses associated with the additional

discovery   caused   by       Tidwell’s      false   testimony.        The    court

awarded front pay for the period from the jury verdict until

Tidwell’s 62nd birthday – more than eight years.                  Upon Carter’s

motions, the Court permitted the jury’s verdict on liability to

stand and refused to reconsider its ruling on front pay.                        The

Court did, however, overturn the jury finding as to willfulness.
                              Standard of Review

     A district court’s denial of a defendant’s motion for

judgment as a matter of law is reviewed de novo, entailing the

application of the same standards used by the district court.
                                                                 th
Dade County v. Alvarez, 124 F.3d 1380, 1383 (11                       Cir. 1997).

Those    standards   require      the     consideration     of    “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 (1986).                  All evidence and

inferences are considered in a light most favorable to the

nonmoving party.        Carter v. City of Miami , 870 F.2d 578, 581

(11th Cir. 1989).

     If the facts and inferences point overwhemingly 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
                                         5
     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.

Id. (footnotes omitted).             The nonmoving party must provide more

than a mere scintilla of evidence to survive a motion for

judgment as a matter of law; “there must be a substantial

conflict    in        evidence   to    support      a   jury question.”        Id.

Accordingly, we must determine whether reasonable jurors could

have concluded as this jury did based on the presented evidence.

Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir. 1993).
                                      Discussion

     Carter contends that it is entitled to judgment as a matter

of law because (1) Tidwell presented no evidence, statistical or

otherwise, of age bias or discrimination and (2) Tidwell failed

to demonstrate that Carter’s articulated reason for its decision

to include him in the RIF was pretextual.                   Tidwell disagrees,

arguing that judgment as a matter of law is inappropriate

because he introduced sufficient evidence to permit the jury to

disbelieve Carter’s proffered explanation for his dismissal.

     To create a jury question in a discrimination case based on

circumstantial evidence, a plaintiff must establish a prima

facie case of discrimination.               McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).                    A prima facie case effectively

creates     a    presumption      of        unlawful    discrimination    by   the

employer:       “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

                                             6
because no issue of fact remains in the case.”                   Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)(footnote

omitted).       Tidwell established a prima facie case by proving

that he was 50 years old, had worked for Carter for 21 years,

was terminated, and that his accounts were assumed by a 26 year

old with only one year of experience with the company.1

      The establishment of a prima facie case shifts the burden

to the employer to produce legitimate, nondiscriminatory reasons

for the allegedly discriminatory employment action.                  Id. at 254.

To   satisfy     this   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.       If the

employer successfully produces a nondiscriminatory reason for

its action, the presumption of discrimination disappears.                      Id.

at 255.     The plaintiff then has the opportunity to show the

employer’s proffered reason to be pretextual.                  Id. at 256.

      Once an employer offers a legitimate, nondiscriminatory

reason for its action, a plaintiff must show that “there is

sufficient evidence to demonstrate the existence of a genuine

            1
            Our task is not to revisit whether the plaintiff
below   successfully   established  a   prima   facie  case   of
discrimination.    “When 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” and the
question of whether the plaintiff properly made out a prima
facie case is no longer relevant.     See U.S. Postal Serv. v.
Aikens, 460 U.S. 711, 714-15 (1983) and     Combs v. Plantation
Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).

                                         7
issue    of   fact   as     to   the    truth       of   each   of    the     employer’s

proffered     reasons      for    its    challenged        actions”     in     order    to

survive judgment as a matter of law.                           Combs v. Plantation

Patterns, 106 F.3d 1519, 1529 (11 th Cir. 1997).                       If a plaintiff

provides a prima facie case plus evidence discrediting the

employer’s proffered reasons, the plaintiff is entitled to have

the factfinder decide the ultimate issue of discrimination.                            Id.

at 1531.

      The task of this court is to consider the entire record in

the light most favorable to Tidwell to determine whether there

was   sufficient         evidence   for       Tidwell     to    withstand       Carter’s

motions for judgment as a matter of law.                   In order to affirm the

district court’s denial of judgment to Carter as a matter of

law, we must find that Tidwell has cast sufficient doubt on

Carter’s      proffered     legitimate,           nondiscriminatory         reasons     to

permit    a    reasonable        factfinder         to   conclude      that    Carter’s

proffered      reasons      “were       not       what   actually      motivated       its

conduct,” Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605
(11th Cir. 1994).
      Carter proffered its RIF as a legitimate, nondiscriminatory

reason for terminating Tidwell, eliminating the presumption of

discrimination that attached to Tidwell’s prima facie case.                            The

court will consider the record evidence to determine whether it

would    permit      a    reasonable          factfinder       to    reject    Carter’s

explanation, allowing the case to be submitted to the jury.




                                              8
       I. 1992 Performance Evaluation

       Tidwell’s      evaluations     show    that     he   met     Carter’s

expectations in 1990 and 1991.         During his 1992 evaluation, his

supervisor, Sindee Furshman, ranked him below expectations.

Tidwell complained that the evaluation was unfair.              He testified

that he asked Furshman several times whether he could get a good

evaluation.       The first two times she responded that she did not

know.   “The third time I asked her, I said, ‘Sindee, if I do my

job completely perfect, can I get a good evaluation?’                And she

went like that to me (shaking head) and that was it.”                Rec. 3-

130.

       Carter     contends   that   Furshman’s   response    was    a   stray

remark.     This     incident   occurred     several   months     before   his
                                                                             2
termination, an event with which Furshman had no involvement.
Additionally, Furshman’s response in no way suggested that

Tidwell’s age was the reason for his termination.               This instance

does not provide the needed “more than a mere scintilla of

evidence” to survive a motion for judgment as a matter of law.

It does not present a substantial conflict in evidence as to

Carter’s purported reason for terminating Tidwell, the RIF, as

to support a jury question.

       II. Retention of Booth and the Miami Territory
       Carter presented evidence at trial to demonstrate that the

RIF was age neutral, belying any intent to discriminate.                Among

other things, Carter’s expert showed that the average age of the

            2
                Furshman was also eliminated as part of Carter’s RIF.

                                      9
sales force actually increased slightly after the RIF.           Carter

argues that its elimination of Tidwell’s territory was not a

pretext   for   age   discrimination,    as   is   clear   because    the

territory was eliminated and has not been replaced.             Tidwell

improperly questions Carter’s methodology and process in the

RIF.    Tidwell also focuses on the difference in age between

himself and Booth and questions the wisdom of the choice to

retain Booth.    However, while Booth absorbed some of Tidwell’s

accounts, he was not hired to replace Tidwell.             Tidwell also

points out that he was never offered a transfer to Miami.            This

contention is superfluous, since no other workers were offered

transfers and Tidwell himself never suggested the idea.               See
                                                                       th
Zaben v. Air Products & Chem., Inc., 129 F.3d 1453, 1459 (11

Cir. 1997) (employee’s contention that he should have been

allowed to transfer did not present sufficient evidence of

pretext to create a jury question when no other workers were

permitted to transfer either).          All of these contentions by

Tidwell are disagreements about the wisdom of Carter’s decision

to retain Booth and the Miami territory, rather than disbelief

in the RIF and its application to Tidwell.         “[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.”     Combs, 106 F.3d at 1543.

       III. “Inconsistent” Remarks



                                 10
      Tidwell maintains that certain alleged inconsistencies as

to the reason given for Tidwell’s termination allow an inference

of pretext.         Carter maintains that the reason for its decision

was   based    on    its     reorganization     and    an     evaluation      of    its

territorial needs.           Tidwell points to several instances to show

Carter’s inconsistency.

      A few days before his termination, Tidwell was asked to

meet with a supervisor in Atlanta, Tim Cleary, and the head of

Carter’s    personnel        department,      Denise       Duca.     At   this     time

Tidwell was told that he had done a great job but that his

position      was    being    terminated       due    to    the    realignment       of

territory.     When Tidwell asked Cleary who was going to take over

the Tampa market, Cleary responded that he did not know.

      Kenneth Geissler, Carter’s vice-president of field sales,

wrote a memo regarding the positions which he anticipated would

be affected by the territory realignments.                    The memo notes two

criteria: (1) whether they are in a market with other Carter

personnel     and,     (2)    if   so,   how    they       were    selected   to     be

terminated verses others in their marketplace.                      As to Tidwell,

the memo notes: “Tampa.             Total volume $900,000.                Only 7% of

volume done in food.            Five accounts make up 80% of business.

Performance issue.           Accounts would be covered by telemarketing

or by J. Booth, Angel Martinez.”               DX 7.

      Tidwell placed great importance on the EEOC “no cause”

determination which noted that performance was a factor along

with Carter’s other reasons for terminating Tidwell.                          Carter


                                         11
argues that the EEOC “no cause” determination did not reflect

any inconsistent statements made by Carter but simply reflected

a   conclusion    made    by    the   EEOC   after        reviewing    Tidwell’s

performance evaluations.

      Although    the    identification       of    inconsistencies       in    an

employer’s testimony can be evidence of pretext,                     see Bechtel

Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir. 1995),

and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.

1994),   the   examples    in    this   case       do   not   present    such    a

situation.     At most, the jury could find that performance was an

additional,     but   undisclosed,      reason      for    the   decision;     the

existence of a possible additional non-discriminatory basis for

Tidwell’s termination does not, however, prove pretext.                        See

Zaben, 129 F.3d at 1458-59 (“Although the company gave differing
explanations for the selection of employees to be discharged,

saying on the one hand that seniority played no role in the

process and that only an employee’s performance was considered

while, on the other hand, asserting that [the employee] was

discharged because he had the least seniority, its reasons are

not ... necessarily inconsistent.”).
                                 Conclusion

      Tidwell failed to produce evidence adequate to permit a

reasonable     factfinder       to    disbelieve          Carter’s     proffered

nondiscriminatory explanation that it terminated Tidwell as                      a

part of its reduction-in-force.            Therefore, Carter was entitled



                                      12
to judgment as a matter of law, and the district court should

not   have permitted the case to go to the jury.

      Accordingly, we REVERSE the entry of judgment in favor of

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

of Carter.




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