            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT


                               No. 96-9004

                     D.C. Docket No. 5:95-CV-112-HL

ARIC EVANS,                                        Plaintiff-Appellant,

                                 versus

McCLAIN OF GEORGIA, INC.
McCLAIN INDUSTRIES, INC.,
                                             Defendants-Appellees.




               Appeal from the United States District Court
                   for the Middle District of Georgia


                           (December 18, 1997)


Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior
District Judge.




*Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern
District of Missouri, sitting by designation
PER CURIAM:

       Plaintiff-Appellant Aric Evans (“Appellant”) appeals from the district court’s

grant of summary judgment on his claims of race discrimination under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and 42 U.S.C. §

1981 (“§ 1981") and for overtime compensation under the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. § 201 et seq. For the reasons set forth, we reverse and remand.

                        Facts and Procedural Background

       Defendants-Appellees McClain of Georgia, Inc. and McClain Industries, Inc.

(collectively “Appellees”) own and operate an industrial plant in Macon, Georgia, and

fabricate there large steel trash bins and compactors. Prior to his discharge, Appellant

had worked at Appellees’ Macon plant for approximately eight years.

       In July of 1994, the plant manager, Ken Graham, resigned. He was replaced on

a temporary basis by the assistant plant manager, Al Buckalew. There appears to be

no dispute that Appellant, in assisting Buckalew, was second in command. He

contends that he was running the plant.

       On October 3, 1994, Kenneth McClain, chairman of the board and president of

McClain Industries, Inc., named Ken Cole as the new plant manager. Buckalew

remained as an unofficial assistant plant manager and Appellant was, purportedly,

next in line.


                                           2
      During this time there was an incident involving one of the leadmen at the

plant, Tim Hall. Appellant contends that when Buckalew told Hall that Appellant was

next in line to be the plant manager, Hall stormed out of the plant saying that he would

not work for a “nigger.” McClain, who was upset by the prospect of losing Hall, sent

another employee to find him and, upon his return, allegedly promised Hall that he

would be trained as the next plant manager at Appellees’ Texas plant. After this

incident, Appellant claims Hall was placed over him in the plant’s managerial

hierarchy.

      Cole proved to be an incompetent manager and was terminated on November

22, 1994. He was replaced by Neal Flowers, a manager from one of Appellees’

Oklahoma plants. Appellees claim Flowers was brought in to assist in the plant’s

conversion to a new product line.

      Contemporaneous with all of these events was a campaign to organize a union

at the plant. Whether or not Appellant was a management level employee, he was

perceived by everyone as an integral part of the union’s effort. In fact, Appellees’

counsel, Thomas H. Williams, met with Appellant and informed him that he was not

to engage in any further union activity because he was an assistant plant manager.

Appellant denied his management status, noting that he was employed as an hourly

wage earner.


                                           3
      Shortly thereafter, Appellant became a salaried employee. Although he admits

being charged with supervisory responsibility, he contends that he was still treated as

an hourly employee. To support his position, Appellant claims that he was not

included in the plant’s management meetings, did not make work assignments, and

still had to report at 6:00 am with the hourly employees. Appellant maintains that he

was only given a salary to remove him from the bargaining unit in an attempt to

thwart the union's organization effort.

      On February 22, 1995, the day before the union election, McClain asked for

Appellant’s keys, told him that he was fired, and even accused Appellant of

threatening to shoot someone at the plant. Appellees now contend, however, that

Appellant was not actually fired until February 24, 1995, the day after the union

election.

      Appellees claim that McClain fired Appellant because he had become a

disruptive force in the plant and was intentionally creating racial tensions among the

lower level employees. They further contend that Appellant was negligent in

performing his duties and had threatened certain white employees.

      Appellant claims that after the incident with Tim Hall, McClain began to harass

him in an attempt to force him to resign. He explains that McClain continually

changed his job duties and reduced his responsibilities. He insists that he was denied


                                          4
promotions and ultimately terminated because of his race. He also maintains that he

was wrongfully denied overtime compensation in violation of the FLSA.

      The district court granted summary judgment against Appellant on both claims.

Evans v. McClain of Georgia, Inc., 934 F.Supp. 1383 (M.D. Ga. 1996).

      In concluding that Appellant could not establish a prima facie case of

discriminatory failure to promote, the district court completely discounted the

probative value of the incident involving Tim Hall. The court stated:

             Whether or not Tim Hall made the racially offensive
             statement attributed to him, nothing in the record suggests
             that Hall received a preferential promotion or that Hall was
             placed in a position of greater responsibility or prestige
             than Plaintiff enjoyed. While the record fails to describe
             the nature of Hall’s position or the scope of his authority,
             it does not suggest that he was in a position above the
             Plaintiff, but rather shows that Plaintiff and Hall each had
             responsibility for a separate phase of the plant’s operations,
             and were assistant managers of approximately equal status.


Evans, 934 F.Supp. at 1388.

      Although the district court concluded that Appellant could establish a prima

facie case of discriminatory discharge, it held that he made no showing of pretext to

overcome Appellees’ legitimate, non-discriminatory reasons for his termination.

      Finally, the district court concluded that Appellant was ineligible for overtime

compensation under the FLSA because he was working in an executive capacity and


                                           5
was a salaried employee.

      Appellant raises four points on appeal: 1) the district court erred in analyzing

his discrimination claims under the standard announced in McDonnell Douglas v.

Green, 411 U.S. 792 (1973), because he presented direct evidence of discrimination;

2) the district court erred in concluding that his circumstantial evidence was

insufficient as a matter of law on the issues of failure to promote and discriminatory

discharge; 3) the district court erred in concluding that no reasonable trier of fact

could conclude that he had established failure to promote and discriminatory discharge

in light of the subsequent decision of the National Labor Relations Board (“NLRB”)

in a related case; and 4) the district court erred in concluding that he was exempt from

the overtime requirements of the FLSA.

                                Standard of Review

       This Court reviews de novo a district court’s grant of summary judgment,

applying the same legal standards that bound the district court, and viewing all facts

and any reasonable inferences therefrom in the light most favorable to the non-moving

party. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995); McGuire Oil

Co. v. Mapco, Inc., 958 F.2d 1552, 1557 (11th Cir. 1992). Summary judgment is

appropriate only when “there is no genuine issue of material fact and . . . the moving

party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).


                                           6
                                  Direct Evidence

      “When there is direct evidence that discrimination was a motivating factor in

the challenged employment decision, the appropriate analysis is different from that

employed in a case where only circumstantial evidence is available.” Trotter v. Board

of Trustees of University of Alabama, 91 F.3d 1449, 1453 (11th Cir. 1996); Bell v.

Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.), cert. denied, 467 U.S.

1204 (1984). The basis for the analysis is that once a plaintiff produces direct

evidence of a discriminatory motive, “the ultimate issue of discrimination is proved.”

Bell, 715 F.2d at 1556. As such, “the defendant may avoid a finding of liability only

by proving by a preponderance of the evidence that it would have made the same

decision even if it had not taken the [illegitimate criterion] into account.” Price

Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).

      Appellant argues that McClain’s statements, conduct, and attitudes are direct

evidence of his discriminatory motive. See EEOC v. Alton Packaging Corp., 901 F.2d

920 (11th Cir. 1990) (general racially discriminatory remarks constitute direct

evidence of decisionmakers’ failure to promote black employees for discriminatory

reasons). At his deposition, McClain testified that Appellant intimidated white

employees by his “strut.” He further testified that Appellant, “a very large, very

strong, very muscular black man,” was attempting to intimidate “three smaller or


                                          7
overweight white men.”

       These statements and others in Appellees’ brief, however inappropriate they

may be, are not direct evidence of a discriminatory motive with respect to Appellant’s

claims of failure to promote or discriminatory discharge. See Burrell v. Board of

Trustees of Georgia Military College, 125 F.3d 1390, 1393 (11th Cir. 1997)(“Direct

evidence is evidence, which if believed, proves [the] existence of fact in issue without

inference or presumption.”)(internal quotation omitted). At best, these statements

merely suggest a discriminatory motive which, by definition, makes them

circumstantial evidence.1 Id. at 1393-94.

       Similarly, the incident involving Tim Hall is not direct evidence of a

discriminatory motive with respect to Appellant’s claims of failure to promote or

discriminatory discharge. As Hall was not a decisionmaker with respect to either of

these employment decisions, his discriminatory comment cannot satisfy Appellant’s

burden in this regard. See Price Waterhouse, 490 U.S. at 277 (O’Connor, J.,

concurring)(“Thus, stray remarks in the workplace . . . cannot justify requiring the

employer to prove that its hiring or promotion decisions were based on legitimate

criteria. Nor can statements by nondecisionmakers . . . .”); Trotter, 91 F.3d 1453-54


       1
          Implicit in this finding is our conclusion that these comments are narrowly tailored to a
specific event and, therefore, are distinguishable from the comments made in Alton Packaging. See
Burrell, 125 F.3d at 1393, n.7.

                                                8
(same). Moreover, assuming for the sake of argument that Hall’s outburst resulted in

his promotion and/or Appellant’s demotion, there is no evidence which directly proves

that McClain acted with a discriminatory motive. Price Waterhouse, 490 U.S. at 277

(O’Connor, J., concurring)(“What is required is . . . direct evidence that

decisionmakers placed substantial negative reliance on an illegitimate criterion in

reaching their decision.”)(emphasis added).

      Appellant further argues that he presented undisputed evidence that McClain

would talk to white employees but ignore black employees, that he laid off black

employees with more experience than comparable white employees, that he promoted

white employees with less seniority than comparable black employees and that he

would give white employees privileges, such as loans, that were not given to black

employees. Additionally, Appellant contends that one of the local temporary agencies

indicated that it would not send black applicants to the plant because McClain did not

want black employees in office positions.

      The district court correctly dismissed this evidence as “not significantly

probative” because it was based on gossip, common knowledge, and the hearsay

statement of an unidentified representative. There is no indication that any of this

evidence can be reduced to admissible evidence at trial. See Pritchard v. Southern Co.

Services, 92 F.3d 1130, 1135 (11th Cir.)(inadmissible hearsay cannot defeat a motion


                                          9
for summary judgment when it is not reducible to admissible form at trial), amended

on reh’g, 102 F.3d 1118 (11th Cir. 1996).

      Finally, Appellant argues that in the history of Appellees’ operations (650

employees in eight plants), there have only been three black supervisory employees.

Appellees argue, however, that Appellant has provided no other information (i.e.,

whether any black employees ever applied for supervisory positions) to make this

otherwise anecdotal information significant. See e.g., Howard v. BP Oil Co., Inc., 32

F.3d 520, 524 (11th Cir. 1994)(“ . . . for this fact to be relevant, plaintiff would have

had to present evidence as to how many blacks applied and were rejected and evidence

of the success rate of equally qualified white applicants.”). We agree. Statistics

without an analytic foundation are “virtually meaningless.” Brown v. American

Honda Motor Co., 939 F.2d 946, 952-53 (11th Cir.), cert. denied, 502 U.S. 1058

(1992).

      Accordingly,     the   district   court   appropriately   analyzed    Appellant’s

discrimination claims under the McDonnell Douglas standard.

                         The McDonnell Douglas Standard

      Under the McDonnell Douglas standard, the plaintiff has the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at

802; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54 &


                                           10
n.6; Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997), petition

for cert. filed, 66 U.S.L.W. 3171 (U.S. July 28, 1997)(No. 97-361). If the plaintiff

successfully establishes a prima facie case, a legal presumption of unlawful

discrimination arises and the burden shifts to the defendant employer to articulate a

legitimate, nondiscriminatory reason for the challenged employment action.

McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254; Combs, 106 F.3d at

1528. “To satisfy that burden of production, ‘[t]he defendant need not persuade the

court that it was actually motivated by the proffered reasons. It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to whether it discriminated

against the plaintiff.’” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at

254-55).

      If the employer meets this burden of production, “[t]he presumption, having

fulfilled its role of forcing the defendant to come forward with some response, simply

drops out of the picture.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11

(1993); see also Burdine, 450 U.S. at 255 & n.10. Still, the elements of the prima

facie case remain. Combs, 106 F.3d at 1528. Moreover, when accompanied by

evidence of pretext or disbelief of the defendant’s proffered explanation, in some

instances, they may permit a finding for the plaintiff. Id. at 1529; see also Hicks, 509

U.S. at 511. The plaintiff employee, however, always retains the ultimate burden of


                                          11
proving that he was the victim of intentional discrimination. Hicks, 509 U.S. at 508;

Burdine, 450 U.S. at 253.

                                     Discussion

A.    Failure to Promote

      A prima facie case of discriminatory failure to promote requires the plaintiff to

show that he is a member of a protected class; he was qualified for and applied for the

promotion; he was rejected; and 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 district court concluded that Appellant could not establish a prima facie

case of discriminatory failure to promote because the record did not indicate that he

was actually denied a promotion. Evans, 934 F.Supp. at 1388 (“The record shows that

Plaintiff was given a salary and the title of assistant manager or stock manager, and,

despite his argument that the promotion was in name only, the Plaintiff’s own

deposition states that in the shakeup after the firing of Ken Cole, Plaintiff acquired

new managerial responsibilities beyond those of his previous job.”). The district court

also concluded that nothing in the record suggested that Tim Hall “received a

preferential promotion or that [he] was placed in a position of greater responsibility

or prestige than [Appellant] enjoyed.” Id. Accordingly, the district court granted

summary judgment in favor of Appellees.


                                          12
      Our review of the record, however, reveals additional facts concerning the

Appellant’s lack of promotion. Three of Appellant’s nephews, who also worked at

the plant, testified that McClain held a meeting with certain employees shortly after

the incident involving Hall occurred. All three testified that McClain announced that

he was putting Hall over Appellant. They further testified that McClain proceeded to

tell an off-color joke in which he compared certain employees at the plant to various

body parts, concluding with Appellant being compared to an anus.

      Additionally, Appellant testified that in the months following the incident

involving Hall, his job assignments changed almost weekly. He contends that he was

frequently given demeaning and menial tasks. See e.g., McCabe v. Sharrett, 12 F.3d

1558, 1564 (11th Cir.1994)(employee who was given fewer responsibilities and was

made to perform more menial tasks suffered adverse employment action).

      Finally, Appellant maintains that he was only given a salary to remove him

from the bargaining unit in an attempt to thwart the union’s organization effort. The

evidence on this point is at best inconclusive. Certainly the discrepancies between

Appellants assignments and those of the other managers, as well as the delayed

manner in which he became a salaried employee, could support such a finding.

      Accordingly, we conclude that Appellant met his preliminary burden of

establishing a prima facie case of discriminatory failure to promote. As this was the


                                         13
sole basis for the district court’s grant of summary judgment, its decision must be

reversed.2

B.      Discriminatory Discharge

       A prima facie case of discriminatory discharge requires a plaintiff to show that

he was a member of a protected class; he was qualified for the job; he was terminated

despite his qualifications; and after his termination the position remained open and the

employer continued to seek applicants of similar qualifications. Mayfield v. Patterson

Pump Co., 101 F.3d 1371, 1375 (11th Cir. 1996).

       There is no dispute that Appellant established a prima facie case of

discriminatory discharge. Accordingly, the district court considered Appellees’

legitimate, nondiscriminatory reasons. It found several, including that Appellant was

fired for “intimidating employees, telling employees they were targeted to be fired,



       2
           Although the district court chose not to address the issue of whether Appellant’s Complaint
properly asserted a claim of discriminatory failure to promote, we will consider it because it was
properly raised by the parties and it involves a pure question of law. See Narey v. Dean, 32 F.3d
1521, 1526 (11th Cir. 1994).
          The Federal Rules of Civil Procedure require only that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled to relief, and a demand for judgment
for the relief the pleader seeks.” Fed.R.Civ.P. 8(a). “A complaint need not specify in detail the
precise theory giving rise to recovery. All that is required is that the defendant be on notice as to
the claim being asserted against him and the grounds on which it rests.” Sams v. United Food &
Comm’l Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir. 1989); see also Dussouy v. Gulf Coast
Investment Corp., 660 F.2d 594, 604 (5th Cir. 1981)(“The form of the complaint is not significant
if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal
theory giving rise to the claim.”). We conclude that Appellant’s Complaint satisfies these liberal
standards.

                                                  14
failing to order parts on time, insubordination, and making threats.” Evans, 934

F.Supp. at 1389. The district court properly determined that Appellees met their

burden of production.

      The district court then looked to the issue of pretext. It concluded that although

there may have been some dispute as to the credibility of Appellees’ legitimate,

nondiscriminatory reasons, Appellant could not prevail unless the evidence presented

also indicated that intentional race discrimination was the true reason for his

discharge. Evans, 934 F.Supp. at 1389 (citing Hicks, 509 U.S. at 515).

      In this respect, the district court was in error. Under the established rule of law

in this Circuit, a plaintiff can survive a motion for summary judgment or for judgment

as a matter of law simply by presenting evidence sufficient to demonstrate a genuine

issue of material fact as to the truth or falsity of the employer’s legitimate,

nondiscriminatory reasons. Combs, 106 F.3d at 1530-32; Howard, 32 F.3d at 527-28;

Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir. 1993).

      On our review it appears that Appellant presented sufficient evidence to create

a genuine issue of material fact with respect to the truth or falsity of each of

Appellees’ legitimate, nondiscriminatory reasons. Accepting Appellant’s version of

the facts as true, we must conclude that he was fired on February 22, 1995. The

record indicates that, as of that date, McClain had not yet been informed by anyone


                                          15
that Appellant was attempting to stir up racial tensions at the plant. Nor is there any

indication that Appellant had been negligent or insubordinate in performing his duties.

On the contrary, it appears that Appellant was a capable employee who was frequently

relied upon to assist in the day to day operations of the plant. Appellees’ ad hoc

explanations and arguments regarding Appellant’s actual date of termination are

simply insufficient at this stage of the proceedings.

       Appellees’ assertions concerning Appellant’s “veiled threats” are similarly

insufficient. Even the district court recognized that these “were subject to question

by a trier of fact.” Evans, 934 F.Supp. at 1389.

       Accordingly, the district court’s grant of summary judgment on Appellant’s

claim of discriminatory discharge must be reversed.3

                                  Overtime Compensation

       The FLSA exempts from its overtime pay requirements “any employee

employed in a bona fide executive, administrative, or professional capacity” who

receives payment on a salary basis. 29 U.S.C. § 213(a)(1)(1994); see also Avery v.

City of Talladega, 24 F.3d 1337, 1340 (11th Cir. 1994). Exemptions under the FLSA,

however, are to be construed narrowly. Nicholson v. World Business Network, Inc.,


       3
         In light of this conclusion, we deem it unnecessary to consider whether, and to what extent,
the factual findings and credibility determinations of the NLRB in subsequent and collateral
proceeding bind a district court on a motion for reconsideration of its grant of summary judgment.

                                                16
105 F.3d 1361, 1364 (11th Cir.), cert. denied,         S. Ct.     (1997). Indeed, the

employer has the burden of showing that it is entitled to the exemption. Jeffery v.

Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995).

      The district court concluded that Appellant was exempt from the overtime

compensation requirements of the FLSA because he was working in an executive

capacity and was paid an annual salary of $35,000.00. Evans, 934 F.Supp. at 1391

(“29 C.F.R. § 541.1(f) provides ‘that an employee who is compensated [on] a salary

basis at a rate of not less than $250 per week, . . . and whose primary duty consists of

the management of the enterprise in which the employee is employed . . . and includes

the customary and regular discretion of the work of two or more other employees

therein’ meets the requirements of section 213(a) and is exempt from the overtime pay

requirements.”). Accordingly, the district court granted summary judgment on

Appellant’s claim for overtime compensation for the months immediately preceding

his discharge.

      Appellant argues that the district court erred in considering him a salaried

employee because he was only given a salary in an attempt to “obviate the

requirements of the National Labor Relations Act.” He further contends that he was

not endowed with managerial responsibility because he could not hire, fire, promote,

suspend, reward, or even grant time off for other employees.


                                          17
      We do not believe that an employer’s subjective motivations are relevant to the

inquiry of whether or not an employee was compensated on a salary basis. The

regulations speak in purely objective terms. 29 U.S.C. § 213(f)(“The term ‘employee

employed in a bona fide executive * * * capacity’ in section 13(a)(1) of the act shall

mean any employee: . . . [w]ho is compensated for his services on a salary basis . . .

.”)(emphasis added). Nevertheless, we conclude that the district court’s grant of

summary judgment on Appellant’s claim for overtime compensation under the FLSA

was erroneous. It is not at all clear from the record whether Appellant actually acted

in a bona fide executive, administrative, or professional capacity in the months

immediately preceding his discharge.

                                     Conclusion

      For the reasons stated in this opinion, we reverse the district court’s grant of

summary judgment on Appellant’s claims of race discrimination and for overtime

compensation and remand to the district court for further proceedings.

REVERSED and REMANDED.




                                         18
LIMBAUGH, Senior District Judge, concurring:

      I concur with both the analysis and the result in this case under established Eleventh
Circuit precedent. As the presiding district judge in the bench trial of the Hicks case,
however, I feel compelled to write separately, and respectfully, to note my disagreement
with the rule of law propounded in Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir.
1997).
      In Hicks the Supreme Court unequivocally stated, “[e]ven though (as we say here)
rejection of the defendant’s proffered reasons is enough at law to sustain a finding of
discrimination, there must be a finding of discrimination.” Hicks, 509 U.S. at 511 n.4
(emphasis in original). The Court explicitly recognized that “trial courts or reviewing
courts should [not] treat discrimination differently from any other ultimate questions of
fact. Nor should they make their inquiry even more difficult by applying legal rules which
were devised to govern the basic allocation of burdens and order of presentation of proof
in deciding this ultimate question.” Id., at 524 (quoting Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 716 (1983)) (internal quotations and citation omitted). Simply
put, the McDonnell Douglas burden shifting framework “is intended progressively to
sharpen the inquiry into the elusive factual question of intentional discrimination,” Burdine,
450 U.S. at 255 n.8, not to raise the bar for defendant employers in the traditional
application of Fed.R.Civ.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986) (the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it); Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (same). In employment discrimination cases,
“the ultimate question is discrimination vel non.” Hicks, 509 U.S. at 518 (quoting Aikens,
460 U.S. at 714).
      A more than plausible reading of the facts of this case amply demonstrates the

                                             19
problem with the analysis offered in Combs. Assume Appellant establishes a prima facie
case of discriminatory discharge.      Assume further that Appellees advance several
legitimate, nondiscriminatory reasons for the employer’s actions, i.e., Appellant had
become a disruptive force in the plant by intentionally creating racial tensions among the
lower level employees, negligently performing his duties, and threatening certain white
employees. Finally, assume Appellant presents evidence sufficient to create a genuine issue
of material fact as to the truth or falsity of Appellees’ legitimate, nondiscriminatory
reasons. Under the existing rule of law in this Circuit, Appellant can survive a motion for
summary judgment or for judgment as a matter of law.
      Suppose, however, that there is virtually no evidence indicating that Appellant’s
discharge was motivated by his race.          On the contrary, suppose the evidence
overwhelmingly suggests that Appellant was discharged for his participation in a union
organization effort at the plant. While this motivation is clearly unlawful under the
National Labor Relations Act, see McClain of Georgia, Inc., 322 N.L.R.B. 367 (1996), it
in no way violates Title VII or § 1981. See 42 U.S.C. 2000e-2(a); 42 U.S.C. 1981(a); see
also Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-14 (1993) (employer does not violate
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., by terminating older
employees in order to prevent their pension benefits from vesting, even though engaging
in such action is unlawful under the Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq.). Absent some evidence indicating that the employer was
motivated by a discriminatory animus, “[w]e have no authority to impose liability . . . for
alleged discriminatory employment practices.” Hicks, 509 U.S. at 514. Accordingly,
judgment as a matter of law must be granted in favor of the employer.


      For these reasons and for the reasons mentioned therein, I find the analysis offered


                                            20
in Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 440-44 (11th Cir.), cert.
denied, 117 S.Ct. 2511 (1997), to be a more persuasive and accurate reading of Hicks. See
also Hidalgo v. Overseas Candado Ins. Agencies, Inc., 120 F.3d 328, 335 (1st Cir. 1997)
(“In the context of a summary judgment proceeding, Hicks requires that once the employer
has advanced a legitimate nondiscriminatory basis for its adverse employment decision, the
plaintiff, before becoming entitled to bring the case before the trier of fact, must show
evidence sufficient for the factfinder reasonably to conclude that the employer’s decision
to discharge him . . . was wrongfully based on [an illegitimate criterion].”) (internal
quotation omitted); Fisher v. Vassar College, 114 F.3d 1332, 1340 (2d Cir. 1997) (en banc)
(“a prima facie case meeting the minimal standard of McDonnell Douglas (even where
elements are acknowledged by the defendant), together with a finding of pretext, do not
necessarily add up to a sustainable case of discrimination”), petition for cert. filed, 66
U.S.L.W. 3178 (U.S. Sept. 2, 1997) (No. 97-404); Rhodes v. Guiberson Oil Tools, 75 F3d
989, 994 (5th Cir. 1996) (en banc) (“The employer, of course, will be entitled to summary
judgment if the evidence taken as a whole would not allow a jury to infer that the actual
reason for the discharge was discriminatory.”); Ryther v. KARE 11, 108 F.3d 832, 848 (8th
Cir.) (Loken, J., in a partial separate concurrence commanding a majority of the Eighth
Circuit en banc), cert denied, 117 S.Ct. 2510 (1997) (“[a] district court may grant summary
judgment or JAML for the employer, even if plaintiff has some evidence of pretext if that
evidence, for one reason or another, falls short of proving intentional discrimination.”).




                                            21
