                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                           Nos. 04-12042 & 04-13262            September 16, 2005
                          ________________________            THOMAS K. KAHN
                                                                    CLERK
                     D. C. Docket No. 00-07327 CV-DMM


EMMANUEL JOSEPH,

                                                  Plaintiff-Appellee,

                                      versus

PUBLIX SUPER MARKETS, INC.,

                                                  Defendant-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________
                             (September 16, 2005)

Before TJOFLAT, PRYOR and ALARCÓN*, Circuit Judges.

PER CURIAM:

      Publix Super Markets, Inc. (“Publix”) appeals from the denial of its motion

for judgment as a matter of law pursuant to Rule 50(b)(2)(B) of the Federal Rules
of Civil Procedure1, and the final judgment entered by the District Court. The jury

found that Emmanuel Joseph’s race and color were substantial or motivating

factors in denying him a transfer to a higher volume store that would increase his

compensation. Publix also seeks reversal of the orders granting back pay and front

pay, attorney’s fees and costs, as well as prejudgment interest.

      Publix contends that the evidence presented at trial was not legally

sufficient for a reasonable jury to find that Mr. Joseph was not transferred to a

higher volume store because of his race. Publix also seeks reversal of the District

Court’s final judgment based on the prejudicial impact of its erroneous evidentiary

rulings.

      We affirm the order denying the motion for judgment as a matter of law


      1
           Fed. R. Civ. P 50(b) states:
                 Renewing Motion for Judgment After Trial; Alternative Motion for
                 New Trial. If, for any reason, the court does not grant a motion for
                 judgment as a matter of law made at the close of all the evidence, the
                 court is considered to have submitted the action to the jury subject to
                 the court's later deciding the legal questions raised by the motion. The
                 movant may renew its request for judgment as a matter of law by
                 filing a motion no later than 10 days after entry of judgment--and may
                 alternatively request a new trial or join a motion for a new trial under
                 Rule 59. In ruling on a renewed motion, the court may:
                 (1) if a verdict was returned:
                   (A) allow the judgment to stand,
                   (B) order a new trial, or
                   ©) direct entry of judgment as a matter of law; or
                 (2) if no verdict was returned:
                   (A) order a new trial, or
                  (B) direct entry of judgment as a matter of law.

                                                    2
because we conclude that a reasonable jury could have found, based on sufficient

relevant and admissible evidence, that Publix discriminated against him because

he is an African-American. We reverse the District Court’s final judgment and

remand for a new trial, however, because it abused its discretion in admitting

evidence whose prejudicial effect substantially outweighed its probative value.

                                          I

      Mr. Joseph was promoted to the position of produce manager for Publix in

November 1993. He was assigned to a “no-chart store.” Publix rates its stores on

sales volume and determined the monetary bonuses a manager was eligible to

receive on the store’s earnings and profitability. No-Chart Stores were stores that

had less than $20,000 in sales volume. Category C Stores were stores that had

between $20,000 and $40,000 in sales volume. Category A stores were stores that

had over $80,000 in sales volume.

      Mr. Joseph filed this action in the District Court on December 8, 2000

pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

20000 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1981. He alleged that

he had been repeatedly denied a transfer to a Category A Store because of his race

and color. In his complaint he requested compensatory damages, payment for

emotional distress and mental anguish, back pay and front pay, prejudgment

                                         3
interest, as well as attorney’s fees and costs.

      Prior to the filing of this action, the Equal Employment Opportunities

Commission (“EEOC”) filed a claim against Publix for pattern and practice

discrimination. The EEOC claim was settled. Over Publix’s objection, Mr. Joseph

offered into evidence a document referred to at trial as the “Kemp Notice.” It was

written by Mr. Howard Jenkins, Publix’s Chief Executive Officer. The Kemp

Notice summarized the terms and conditions of the settlement agreement.

      The district court allowed Mr. Joseph to enter the following quotation from

Mr. Howard’s letter into evidence:

             So, as the EEOC investigation progressed, the EEOC
             focused upon the rate of promotions of blacks from full-
             time employment into retail management jobs. Based upon
             their analyses, EEOC contended that in some years, and in
             some locations, promotions of full time black associates to
             or within management lagged behind the rate of promotion
             of non-black associates.

      At trial, Mr. Joseph testified that he overheard former Publix district

manager Richard Cabel refer to Mr. Joseph as a “nigger.” Specifically, Mr. Joseph

testified that when he asked Mr. Cabel about a transfer to a new store, his reaction

was “this nigger keep on bugging them about a promotion and he will never

amount to be nothing.” Publix objected to this testimony on the grounds that it was

hearsay, elicited by someone who was not a decision maker. Mr. Cabel was Mr.

                                           4
Joseph’s district manager in 1992 or 1993. Mr. Cabel retired from working for

Publix prior to the rejection of Mr. Joseph’s requests for a transfer at issue in this

case.

        In response to a special verdict form, the jury found by a preponderance of

the evidence that race was a substantial and motivating factor in the denial of Mr.

Joseph’s request for a transfer to a higher volume store. The jury did not award

Mr. Joseph any damages for emotional pain and mental anguish. The District

Court awarded Mr. Joseph back and front pay, attorney’s fees and costs, as well as

prejudgment interest.

        Publix has timely appealed the final judgment of the District Court. This

Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                           II

        We first consider Publix’s contention that the District Court erred in

denying its motion for judgment as a matter of law. Were we to agree with Publix

regarding this issue, we would be required to reverse the judgment and instruct the

District Court to enter a final judgment in favor of Publix without deciding

whether it erred in its evidentiary rulings and in its award of back pay, front pay,

attorney’s fees and costs, as well as prejudgment interest.

        Publix contends, based on discrete theories, that the District Court erred in

                                           5
denying its motion for judgment as a matter of law. First, it argues that Mr. Joseph

offered evidence of job discrimination based on a pattern and practice instead of

an individual disparate discriminatory treatment claim. Second, Publix maintains

that Mr. Joseph failed to present sufficient evidence to establish a prima facie case

of individual employment discrimination for failure to transfer him to a store

where he would receive higher pay. Finally, Publix asserts that Mr. Joseph failed

to demonstrate that its reasons for failing to transfer Mr. Joseph were pretextual.

                                         A

      Publix contends that “[w]ith the court’s approval, Plaintiff tried a pattern-

and-practice case, all but ignoring his own individual claim.” Appellant’s Initial

Brief at 27 n.10 (emphasis added). Publix presented a similar contention in

attacking the allegations of the complaint in its unsuccessful motion for summary

judgment.

      Mr. Joseph alleged in his complaint that he was denied a transfer to a

Category A Store based on his race and color. At trial, he presented evidence that

his repeated requests for a transfer were not granted, notwithstanding the fact that

he had more experience and was better qualified than non-African-Americans who

were transferred to Category A Stores as produce managers.

      Publix appears to contend that the fact that Mr. Joseph presented the

                                          6
testimony of three other employees to demonstrate that Publix had a pattern and

practice of discriminating against African-Americans converted his individual

disparate treatment claim into a disparate impact claim. We disagree.

      Pattern and practice evidence is admissible to demonstrate that an

employer’s employment decision conformed to a general policy of discrimination

against African-Americans and that “the presumptively valid reasons for [an

employee’s] rejection were in fact a coverup for a racially discriminatory

decision.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973). As we

explain below, Mr. Joseph presented sufficient evidence to persuade a reasonable

jury that his requests for a transfer were denied because of his race and color.

Evidence of Publix’s general policy and practice with respect to requests for a

transfer to Category A Stores was admissible to demonstrate that Publix’s reasons

for denying Mr. Joseph’s requests were pretextual. Publix has failed to

demonstrate that Mr. Joseph abandoned his disparate treatment claim by offering

evidence of Publix’s discriminatory pattern and practice to rebut Publix’s evidence

of a legitimate business reason for declining to transfer Mr. Joseph.

                                          B

      Publix further maintains that Mr. Joseph failed to present sufficient

evidence to demonstrate a prima facie case of employment discrimination of

                                          7
disparate treatment because of his race and color. In their presentations to this

Court, both parties have ignored the rule announced in United States Postal

Service Board of Governors v. Aikins, 460 U.S. 711 (1983), that the question

whether a plaintiff has failed to establish a prima facie case is not relevant “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[.] [T]he factfinder must then decide whether the

rejection was discriminatory within the meaning of Title VII. At this stage, the

McDonnell-Douglas presumption drops from the case.” Id. at 714-15 (internal

quotations and footnote omitted); see also Cleveland v. Home Shopping Network,

Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (holding that, in a suit brought under

the Americans with Disabilities Act, “[a]fter a trial on the merits, an appeals court

should not revisit whether the plaintiff established a prima facie case. . . . The only

relevant question becomes whether the [employee’s] termination was motivated by

her disability.”).

                                          C

       Thus, in a disparate treatment case fully tried on the merits, our review of

the validity of a judgment as a matter of law is limited to the question whether the

plaintiff presented sufficient evidence to prove each element of his or her claim.

                                           8
Collado v. United Parcel Service Co., No. 04-11297, 2005 U.S. App. LEXIS

15850, at *18 (11th Cir. August 2, 2005). Publix maintains that the district court

erred in denying his motion for judgment as a matter of law because Mr. Joseph

failed to present sufficient evidence to persuade a reasonable jury that it failed to

transfer Mr. Joseph to a Category A Store because of his race and color.

      After the jury returned its verdict, Publix renewed its motion for judgment

as a matter of law pursuant to Rule 50(b)(2)(B). The District Court denied the

motion on February 12, 2003. A judgment as a matter of law may be issued by a

district court if “there is no legally sufficient evidentiary basis for a reasonable

jury” to find for the non-moving party or any element of the cause of action. Fed.

R. Civ. P. 50(a)(1).

             If, for any reason, the court does not grant a motion for
             judgment as a matter of law made at the close of all the
             evidence, the court is considered to have submitted the
             action to the jury subject to the court’s later deciding the
             legal questions raised by the motion.

Fed. R. Civ. P. 50(b).

             A district court may enter judgment as a matter of law if a
             party has been fully heard on an issue and there is no
             legally sufficient basis for a reasonable jury to find in favor
             of that party on that issue. When considering such a
             motion, the court must evaluate all of the evidence,
             together with any logical inferences therefrom, in the lights
             most favorable to the nonmoving party.

                                           9
Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997).

      In this matter, the District Court correctly instructed the jury regarding the

elements of a Title VII claim. Jury Instruction No. 6 reads as follows:

                    In this case the Plaintiff makes a claim under the
             Federal Civil Rights statutes that prohibit employers from
             discriminating against employees in the terms and
             conditions of their employment because of the employee’s
             race.
                    More specifically, the Plaintiff claims that he was
             denied a transfer to a higher volume store by the Defendant
             because of the Plaintiff’s race.
                    The Defendant denies that the Plaintiff was
             discriminated against in any way and asserts that the
             Plaintiff was transferred to a higher volume store and was
             offered a second transfer to an even higher volume store.
                    In order to prevail on this claim, the Plaintiff must
             prove each of the following facts by a preponderance of the
             evidence:

             First:       That the Plaintiff was denied a
                          transfer to a higher volume store
                          by the Defendant; and

             Second:      That the Plaintiff’s race was a
                          substantial or motivating factor
                          that prompted the Defendant to
                          take that action.

      In Collado, this Court noted that the first step of the McDonnell-Douglas

burden-shifting framework of a prima facie claim of employment discrimination

includes components that are not elements of a Title VII claim. Collado, 2005 U.S.

                                         10
App. LEXIS 15850, at *28. “At the end of a trial . . . the question whether the

plaintiff properly made out a prima facie case . . . is no longer relevant.” Id.

(citation and quotation marks omitted). This rule “serves as a bar, prevents a look

back, where a component of the prima facie case that is not an element of the

claim is concerned.” Id. In Collado, this Court illustrated the difference between

the circumstantial evidence – evidence that creates a rebuttable presumption of

discriminatory motive under McDonnell-Douglas – and the elements of a Title VII

claim, as follows:

                    An example that comes to mind is a Title VII
             discriminatory failure to promote claim. The components
             of the prima facie case are: (1) that the plaintiff is a
             member of a protected class; (2) that he was qualified for
             and applied for the promotion; (3) that he was rejected; and
             (4) that other equally or less qualified employees who were
             not members of the protected class were promoted. Combs,
             106 F.3d at 1539 n.11. The fourth component, the one
             requiring outside-the-class comparators, is not an element
             of the claim itself. Once a district court has denied a Rule
             50(a) motion for failure to show a prima facie case, neither
             that court nor this one may conclude that judgment as a
             matter of law should be granted under Rule 50(b) solely
             because no outside-the-class comparators were shown.
             Although the absence of comparators may be relevant to
             whether the plaintiff has proven that his failure to be
             promoted was the result of discrimination, it is not
             necessarily a claim-killing fact at the post-Rule 50(b) stage.
             Difficult as it might be to prove, a promotion could be
             denied for discriminatory reasons even though no one
             outside the protected class was promoted – even though

                                          11
             there were no comparators and therefore no prima facie
             case.

Id. at *29-30.

      Publix contends that Mr. Joseph failed to identify “a specific position that

he was denied as a result of any alleged discrimination.” Appellant’s Initial Brief

at 31. Clearly, if a plaintiff does not request a transfer to a vacant position, he or

she cannot demonstrate that the failure to transfer was based on race or color.

“Unless the individual plaintiff can point to some specific instance of

discrimination, there is no wrong for the court to remedy.” Carmichael v.

Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984).

      Mr. Joseph presented evidence that would support an inference that non-

African-American’s who had less experience than he had as a produce manager

were transferred to Category A. Stores. He also presented evidence that no

African-American was transferred to serve as a produce manager in a Category A

Store until after he filed a complaint with the EEOC. Because Publix did not

publish a notice of available positions for produce manager, however, Mr. Joseph

could not identify each specific transfer he was denied as a result of racial

discrimination.

      Tanya Piniero Brown was called as witness by Mr. Joseph. She testified that



                                           12
she was a human resources investigator for Publix. She stated that between 1993

and 1997, Publix did not publish a notice to its employees when vacancies in

produce manager positions in existing stores became available. Ms. Brown also

stated that Publix did not have a testing process for transfers to higher volume

stores. She further testified that the only African-American transferred to a

produce manager position at a high volume store was Albert Brown. Mr. Brown

was transferred in March 1999, after Mr. Joseph filed a complaint with the EEOC

in November 1998 alleging discriminatory treatment by Publix against African-

Americans because of their race and color. Prior to Mr. Brown’s transfer to a

Category A store, no African-American produce manager had served as such in a

Category A Store.

      Mr. Joseph testified that he trained Randy Quinn as a produce manager. Mr.

Quinn was thereafter transferred to Store 432, a Category A Store, while Mr.

Joseph was transferred to a Category C Store. Other white employees who were

serving as produce clerks received transfers to higher volume stores while Mr.

Joseph was passed over.

      After Mr. Joseph filed a claim of discriminatory treatment with the EEOC in

November 1998, he was offered a transfer to Store 267, a Category A Store. Mr.

Joseph requested time to speak to his attorney and his wife before he could make a

                                         13
decision. He was given twenty minutes to do so. Mr. Joseph was not able to

contact his attorney. He did contact the produce manager at Store 267 to find out

the volume of business in the produce department. Mr. Joseph was informed that

the volume was good but the bonus he would receive was not much different than

he was receiving in his present position at Store 114. Mr. Joseph was also told that

in about five or six months Publix was going to open a new store about two miles

away which would have a negative impact on the sales volume at Store 267. After

receiving this information, Mr. Joseph declined the transfer to Store 267. On

cross-examination, Mr. Joseph stated he wanted to confer with his attorney about

the transfer offer because it did not include reimbursement for his attorney’s fees

or compensation for all his emotional distress.

      Contrary to Publix’s contention, Mr. Joseph did present evidence of specific

transfers to Category A Stores that he was denied before he filed his claim with the

EEOC. He presented evidence that he was denied a transfer to Category A Store

90 in 1999. Publix offered evidence that it did not offer the position to Mr. Joseph

because “Mr. Joseph had not expressed any interest in a transfer to district

manager Glass until after the vacancy had been filled.” Specifically, Mickey Glass,

who had the authority to make the transfer decision, testified that before he

decided who would fill the opening at Store 90, Mr. Joseph had not made a

                                         14
transfer request. Publix did not offer any evidence to demonstrate that it posted a

notice that there was a vacancy at Store 90.

      Mr. Joseph also presented evidence that a vacancy at Store 70, a Category A

Store, was filled in July of 1999 by Shakir Hussein. Mr. Hussein was appointed as

a produce manager in 1995. Thus, he had two years less experience in that position

than Mr. Joseph. A reasonable jury could have concluded that Mr. Joseph was not

transferred to Category A Store 70 because of Publix’s highly informal procedures

for transfers to higher volume stores enabled it to engage in highly subjective and

discriminatory employment decisions. “The failure to establish ‘fixed or

reasonably objective standards and procedures for hiring’ is a discriminatory

practice.” Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir. 1982)

(quoting Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th

Cir. 1972).

      Viewing the evidence in the light most favorable to Mr. Joseph, the record

shows that he repeatedly informed his Publix supervisors, orally and in writing,

that he wanted a transfer to the next available position as a produce manager.

Without notice of vacant positions, or an objective criteria for eligibility for a

transfer to a Category A Store, it was not possible for Mr. Joseph to apply for a

transfer to a specific location before it was filled.

                                           15
      In Carmichael, this Court held that the failure of an employer to use formal

procedures for posting notice of available promotions or for determining who

would be offered a promotion “can lead to racial discrimination, both because

important information may be available only to whites and because such

procedures place no check on individual biases.” Carmichael, 738 F.2d at 1133.

This Court also noted in Carmichael that “when there is not formal notice of the

job’s availability, the plaintiff may have no means within his own knowledge of

showing whether the employer considered him or not.” Id. We are persuaded that

the principles announced in this Court’s Title VII jurisprudence concerning hiring

and promotions also requires employers to post adequate notice of vacant

positions that are available for lateral transfer to better paying jobs, and to

promulgate objective standards for an employer to determine his or her eligibility

and ranking in order to provide an employee with access to facts that may

demonstrate a discriminatory animus. Because Publix failed to post notice of

vacancies for produce managers in higher volume stores, Mr. Joseph was not

required to demonstrate that he asked for a transfer “when he did not know about

and when there was no formal mechanism for expressing his interest.” Id. at 1132-

33.

      Mr. Joseph presented evidence at trial that he had positive performance

                                          16
reviews as a produce manager, that he was equally, if not more, qualified than the

white employees that were promoted to Category A Stores over him, and that three

other black produce managers with similar qualifications to Mr. Joseph had also

been denied transfers to Category A Stores. Mr. Joseph also submitted evidence

that in the twenty-year period prior to the date he filed his claim, Publix never

promoted a black produce manager to a Category A Store and that it had no black

store managers, district managers, regional managers or executives.

      Viewed in the lights most favorable to Mr. Joseph, the evidence presented at

trial of (1) the failure to post notice of vacancies in Category A Stores, (2) the

failure to follow objective procedures in rating the employees who were eligible

for such transfers, (3) the failure to honor Mr. Joseph’s repeated requests for a

transfer, and (4) the failure to offer to any African-American such a position prior

to the initiation of EEOC procedures by Mr. Joseph was sufficient to persuade a

reasonable jury to find that his race was a substantial or motivating factor in

Publix’s failure to transfer him to a Category A Store. The district court did not err

in denying the motion for Rule 50(b)(2)(B) for judgment as a matter of law.

                                          III

      Publix seeks reversal of the judgment in favor of Mr. Joseph on the ground

that the district court committed prejudicial error in admitting portions of the

                                          17
Kemp Notice in violation of 42 U.S.C. § 2000e-5(b), and also receiving evidence

of racial slurs.

       A district court’s evidentiary rulings are reviewed under the abuse of

discretion standard. Piamba Cortes v. American Airlines, 177 F.3d 1272, 1305-06

(11th Cir. 1999). This Court has explained that

                     [w]e review a district court’s ruling on the
              admissibility of evidence for abuse of discretion, and
              evidentiary rulings will be overturned only if the moving
              party establishes that the ruling resulted in a “substantial
              prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341
              (11th Cir.1997). When applying an abuse of discretion
              standard, “we must affirm unless we at least determine that
              the district court has made a ‘clear error of judgment,’ or
              has applied an incorrect legal standard.” SunAmerica Corp.
              v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333
              (11th Cir.1996) (citation omitted).

Id.

       42 U.S.C. §2000e-5(b) provides in part:

              If the Commission determines after [an] investigation that
              there is reasonable cause to believe that the charge [of
              unlawful employment practices] is true, the Commission
              shall endeavor to eliminate any such alleged unlawful
              employment practice by informal methods of conference,
              conciliation, and persuasion. Nothing said or done during
              and as part of such informal endeavors may be made
              public by the Commission, its officers or employees, or
              used as evidence in a subsequent proceeding without the
              consent of the persons concerned.



                                          18
42 U.S.C. §2000e-5(b) (emphasis added). Because the excerpted portion of the

Kemp Notice clearly reiterated something “said or done” by the EEOC, it was

inadmissible “as evidence in a subsequent proceeding.” See Olitsky v. Spencer

Gifts, Inc., 842 F.2d 123, 126 (5th Cir. 1988) (reviewing plaintiff’s age

discrimination case brought under Title VII, and holding that Section 706(b)

“clearly prohibits any use of EEOC conciliation material in subsequent litigation,

even by the parties to the agency proceeding”). In light of this holding, it is

unnecessary for us to determine whether the Kemp notice should not have been

admitted for the additional reasons articulated by Publix.

      Publix maintains that the testimony regarding Mr. Cabel’s reference to Mr.

Joseph as a “nigger” was not relevant because Mr. Cabel was a supervisor who

retired from Publix prior to Publix’s alleged discrimination against Mr. Joseph

between 1996 and 1999. We agree. Because of the temporal remoteness of the

racial slur, and the fact that it was uttered by a person who had no role in

determining whether Mr. Joseph’s requests for a transfer should be honored, the

statement was not relevant to prove any element of Mr. Joseph’s Title VII claim.

Pursuant to Rule 402 of the Federal Rules of Evidence, “[e]vidence which is not

relevant is not admissible.” Furthermore, admission of the racial slur was highly

prejudicial and should have been excluded under Rule 403 even if the District

                                          19
Court concluded in the exercise of its discretion that it was relevant; the

statement’s “probative value, if any, was substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury . . . .”

Fed.R.Evid. 403.

      The cumulative effect of the erroneous admission of the Kemp Notice and

the racial slurs by a person who did not participate in the transfer decisions at

issue in this case had a substantial prejudicial effect. The jury may have viewed

Mr. Howard’s recitation of the EEOC’s contention of discrimination as a

concession of liability to Mr. Joseph by Publix. Mr. Joseph’s counsel argued to the

jury that the excerpt from the Kemp Notice “confirmed the racism of [Publix].”

The admission of the racial slurs may have caused the jury to infer that the

decision makers at Publix were biased against African-Americans. Accordingly,

we conclude that the district court abused its discretion in admitting evidence of

the EEOC’s contention in unrelated settlement proceedings, and allowing the jury

to hear what Publix has properly characterized as noxious racial slurs. Because of

the prejudicial impact of these erroneous rulings, we conclude that we must set

aside the judgment. Since the judgment must fall, we also must vacate the award

of back pay and front pay, attorney’s fees and costs, and prejudgment interest.

      For the guidance of the parties and the district court in the event of a retrial,

                                           20
we address Publix’s contention that the district court abused its discretion in

calculating its award of back pay. The district court based its calculation of back

pay on the difference between Mr. Joseph’s average bonuses at low volume stores

and the 1997 bonus of Chris Teague, which represented the highest bonus of any

produce manager during the 1996-99 period. There is no evidence, however, that

Mr. Joseph would have earned the equivalent of Mr. Teague’s bonus for six

consecutive years if he had not been denied a transfer. An award of back pay is

designed to make a plaintiff whole, not to give the plaintiff a windfall or to punish

the employer. Franks v. Bowman Trans. Co., 424 U.S. 747, 763-66 (1976).

      The district court also erred in awarding Mr. Joseph back pay from the onset

of the limitations period for his § 1981 action and the date of the judgment. Back

pay is designed to “place the injured party in the position he or she would have

been in absent the discriminatory actions.” EEOC v. Smith Pontiac GMC, Inc., 896

F.2d 524, 529 (11th Cir. 1990) (quotations omitted). The district court should have

calculated Mr. Joseph’s back pay with reference to the first discriminatory act

within the limitations period, rather than with reference to the onset of the

limitations period.

      The parties shall bear their own costs.

      AFFIRMED in part, and REVERSED in part.

                                         21
22
