PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 97-6729 FILED U.S. COURT OF APPEALS D. C. Docket No.95-CV-2380 ELEVENTH CIRCUIT 07/20/98 THOMAS K. KAHN CLERK ARTHUR ROSS, Plaintiff-Appellant,
versus
RHODES FURNITURE, INCORPORATED, an Alabama Corporation, d.b.a. Marks Fitzgerald,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Alabama
(July 20, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.
_________________ *Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
PAINE, Senior District Judge:
Arthur Ross appeals the district court’s setting aside a jury
verdict that awarded him more than thirty seven thousand dollars in
back pay. We reverse and remand with instructions to the district court to reinstate and enter judgment on the jury’s verdict.
First, the record on appeal is insufficient to permit an evaluation
of whether the trial court erred when it granted the defendant’s
renewed motion for judgment as a matter of law. Second, our de
novo review of the trial testimony convinces us that the jury could
have reasonably disbelieved the defendant’s proffered reasons for
firing Ross.
In 1987, Ross, who is an African-American, was hired by Marks
Fitzgerald to help deliver furniture. In 1990, Ross began working
for Rhodes Furniture when that company acquired Marks Fitzgerald.
Ross performed well and climbed the company ladder at Rhodes,
ultimately rising to the position of delivery manager. R. 2-26-27.
Ross was never disciplined before he was accused of and fired for
soliciting tips. R. 2-30.
On December 23, 1993, Ross was supervising the loading dock at
Rhodes’s warehouse. He noticed that customers’ tipping of
employees for loading furniture was slowing down operations. Ross
testified that, to remedy the situation, he made a tip box and
placed it near the loading dock. R. 2-31-33. Ross further
testified that he immediately removed the box from its perch
outside the loading dock when the receptionist informed him that a
customer had complained about the tip box. R. 2-35.
2 Ross finished work on December 23rd and went on Christmas
vacation. When he returned a week later to pick up his paycheck,
Ross noticed that Ricky Mann (Mann), a white male, was serving as
the delivery manager. Until that time, Mann had been a driver for
Rhodes and, at times, under Ross’s supervision. On January 5,
1994, Ross returned from vacation to find that he was fired and
that Mann had replaced him. R.2-37, 39.
Upon being fired, Ross filed a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC). Ross claimed
that he was fired because he is black. He also charged that tip
solicitation was Rhodes’s pretext for discriminatory discharge.
Pl.’s Trial Ex. 2 (Ross’s EEOC charge). The EEOC issued Ross a
right to sue letter. Ross then filed suit in the United States
District Court for the Northern District of Alabama, seeking relief
under Title VII and Section 1981.
Ross alleged that “[t]he defendant discriminated on the basis
of race against the plaintiff with respect to discharge,
discipline[,] and other terms of employment.” Pl.’s Compl. at 2,
¶6. The trial judge denied Rhodes’s motion for summary judgment,
and the case went to trial. Upon deliberation, the jury awarded
Ross $37,341.85 in back pay.
After moving for and receiving an extension of time, Rhodes
filed a renewed motion for judgment as a matter of law under Rule
3 50(b). Rhodes also moved for a new trial. Apparently, Ross
opposed neither motion. See Trial Docket. Chief Judge Pointer
granted Rhodes’s renewed motion for judgment as a matter of law,
set aside the jury’s verdict, and entered judgment for Rhodes. He
denied as moot Rhodes’s motion for a new trial. See Trial Docket
No. 54. Ross appealed.
At oral argument to the appellate panel, counsel agreed that
Rhodes moved for judgment as a matter of law both at the close of
Ross’s case and at the close of all the evidence.1 The parties did
not, however, identify what grounds Rhodes offered in support of
its pre-verdict motions under Rule 50(a). The record on appeal is 2 also silent on this point. The abbreviated record prevents any
1 In the present case, the Plaintiff challenges the entry of jnov on the merits. Accordingly, whether the Plaintiff’s failure to object to Defendant’s Rule 50(b) motion on the ground that the basis of Defendant’s Rule 50(b) motion was waived by Defendant’s inadequate Rule 50(a) motion, constitutes waiver of Plaintiff’s right to challenge the district court’s entry of jnov pursuant to Defendant’s Rule 50(b) motion, is not before this court because the Plaintiff has not raised the waiver issue on appeal. Cf. Williams v. Runyon, 130 F.3d 568 (3d Cir. 1997) (holding that where a party did not object to a movant’s Rule 50(b)motion specifically on the grounds that the issue was waived by an inadequate Rule 50(a) motion, the party’s right to object on that basis is itself waived); Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995) (holding that failure to assert an objection to a Rule 50(b) motion constitutes waiver of the objection). 2 At the close of Ross’s evidence, defense counsel said, “Your Honor, I think we have a motion ready.” R. 2-155. A discussion was then held off the record. Id. Rule 50(a)(2) provides: Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall
4 meaningful appellate review of whether Ross was afforded his
Seventh Amendment right to cure evidentiary deficiencies before his
case went to the jury. Rule 50 was designed to protect that right,
and therefore, we adhere to its procedural mandates. See Crawford
v. Andrew Sys., Inc., 39 F.3d 1151, 1154 (11th Cir. 1994)(holding
that a district judge has no authority to grant a Rule 50(b) motion
when no Rule 50(a) is made) and see also Sims’ Crane Serv., Inc. v.
Ideal Steel Prods., 800 F.2d 1553, 1557 (11th Cir.1986) (noting our
attention to both the purpose and the wording of Rule 50(b)).
Rule 50 motions must made on the record. That rule is not
unique to this circuit. See Keith v. Truck Stops Corp. of Am., 909
F.2d 743, 744 (3rd Cir. 1990) (“the better practice would be for
such motions to be made on the record”). An adequate record may
allow us to excuse technical non-compliance with Rule 50. See
MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 898 (5th
Cir. 1995). More importantly, an adequate record on appeal reveals
whether a plaintiff’s Seventh Amendment rights have been ambushed. It also controls the evidentiary standard we apply when reviewing
a district court’s decision to set aside a jury verdict. The
specify the judgment sought and the law and facts on which the moving party is entitled to the judgment.
In this case, the record on appeal does not specify the judgment sought and the law and facts on which Rhodes should have been entitled to the judgment.
5 standard of review is de novo. General American Life Insurance
Company v. AmSouth Bank, 100 F.3d 893, 899 (11th Cir. 1996);
Bateman v. Mnemonics, 79 F.3d 1532 (11th Cir. 1996)(district
judge’s resolution of post trial motions renewed de novo). When reviewing a trial court’s resolution of a Rule 50(b)
motion, we compare the grounds originally argued by the movant in
its Rule 50(a) motion with those cited by the trial court in
granting a renewed motion for judgment as a matter of law. See
National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545(11th
Cir. 1986); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 845-46 (5th
Cir. 1975). If the grounds argued in a motion under Rule 50(a) are
“closely related” to those argued in a Rule 50(b) motion, then
setting aside a jury’s verdict is no surprise to the non-movant. No
Seventh Amendment right is ambushed. National Indus., Inc. v.
Sharon Steel Corp., 781 F.2d at 1549-50. But if the new and old
grounds vary greatly, then a trial judge may not rely on the new
grounds to set aside the jury’s verdict. See Sulmeyer v. Coca Cola
Co., 515 F.2d at 845-46. If they do vary greatly and the trial
court relies upon the new grounds to set aside the jury’s verdict,
we will reverse. See id.
In National Industries, the record on appeal enabled us to
conclude that the new grounds in the Rule 50(b) motion constituted
no surprise to the non-movant because the new and old grounds were
“closely related.” See National Indus., Inc. v. Sharon Steel
6 Corp., 781 F.2d at 1549. In this case, however, we are unable to
evaluate whether the grounds in Rhodes’s Rule 50(a) motions were
substantially different from those asserted in its Rule 50(b)
motion. Hence, we cannot ascertain if this appeal is more like
National Industries, where “[t]he difference . . . between the
matters raised in the motion for judgment n.o.v. and the earlier
motion is not so great[,]” or whether it is akin to Sulmeyer v.
Coca Cola Company and Wilson v. Attaway, 757 F.2d 1227 (11th Cir.
1985), where the matters varied greatly and required reversal.
We see no difference between a record that omits any mention
of a Rule 50(a) motion and one that is mute concerning the grounds
argued in support of the Rule 50(a) motion. Both deficiencies go
to the heart of our concerns that a plaintiff’s Seventh Amendment
rights not be ambushed and that a plaintiff be allowed to cure
evidentiary deficiencies before the jury retires.
The record before us makes it impossible to determine whether
the trial court should be affirmed under the “flexible approach” we
took in National Industries or whether we should follow a stricter approach as we did in Sulmeyer and Wilson. Accordingly, we must
act in an abundance of caution towards preserving the sanctity of
a jury’s verdict and vacate the trial judge’s decision. Cf. Dunn
v. H.K. Porter Co., Inc., 602 F.2d 1105, 1113 (3rd Cir. 1979)
(vacating judgment of district court because “[t]he record before
7 us is not sufficiently complete to permit adequate appellate review
of the district court’s action.”). Instead of culling the record
for substantial evidence to support the verdict (as we would
normally do), we will look for any evidence that would sustain the jury’s decision. We employ the “any evidence” standard because we
are unable to ascertain whether Ross was sandbagged by new
arguments in Rhodes’s motion under Rule 50(b). Cf. Wilson v.
Attaway, 757 F.2d at 1237 (applying the “any evidence” standard
when no Rule 50(a) motion was made).
Applying this “any evidence” standard, we conclude that the
jury verdict was supported by the evidence, and therefore, it must
be reinstated. We review de novo a district court’s determination
of a Rule 50 (b) motion. See, e.g., Combs v. Plantation Patterns,
106 F.3d 1519, 1526 (11th Cir. 1997). In doing so, “we must
consider all the evidence in the light most favorable to [the
nonmovant] and determine ‘whether or not reasonable jurors could
have concluded as this jury did based on the evidence presented.’”
Id. (quoting Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir. 1993)).
In his quest for relief, Ross must clear several evidentiary
hurdles. He must make a prima facie case. Id. at 1528. Ross made
a prima facie case for discriminatory discharge. As an African-
American, he is a member of a protected class. Given the glowing
8 evaluations Ross received prior to being discharged, he was
certainly qualified to serve as Rhodes’s delivery manager. Rhodes
fired Ross and replaced him with a non-minority, Ricky Mann. That
is a prima facie case. See Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982)(iterating the elements of
discriminatory discharge).
Second, once Rhodes produced legitimate non-discriminatory
reasons for its adverse employment action, Ross must prove his
case. Combs v. Plantation Patterns, 106 F.3d at 1528. Rhodes
satisfied its intermediate burden of production when it claimed
that Ross was fired for soliciting tips. Ross then had to produce
evidence from which the jury could have reasonably inferred that
Ross was fired because he is black. See id.
Ross could employ either of two methods to carry his ultimate
burden of proof. He could adduce evidence that might directly
establish discrimination. Alternatively, he could point to enough
evidence to permit the jury to reasonably disbelieve Rhodes’s
proffered reason that it fired Ross for soliciting tips. See Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S.
Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). We must determine if Ross
succeeded under either method.
9 Reviewing the first “direct” method--whether Ross’s evidence
could have persuaded the jury that discrimination motivated his
firing--the court examines whether Ross produced any evidence
beyond his prima facie case. Ross’s prima facie case may certainly
be considered in determining whether he carried his ultimate
burden. See Combs v. Plantation Patterns, 106 F.3d at 1528 (citing
Burdine). Although a plaintiff must both present a prima facie
case and show pretext, the showing of pretext need not necessarily
involve further evidence; the evidence in a prima facie case might
be strong enough to also show pretext. See id. at 1530. In this
case, however, Ross needed additional evidence beyond that which
established his prima facie case. He needed trial testimony if he
was to carry his burden and survive Rhodes’s Rule 50 motions.
Ross could carry his burden via the second method by producing
“any evidence that, if believed, sustains his burden of proof[,]”
Swanson v. General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir.
1997), “to demonstrate the existence of a genuine issue of fact as
to the truth of” Rhodes’s explanation that it fired him for
soliciting tips. Combs v. Plantation Patterns, 106 F.3d at 1529. If Ross succeeded, he was entitled to survive Rhodes’s Rule 50
motions. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.
1989). Applying the “any evidence” standard required by Wilson v.
Attaway, we conclude that Ross succeeded via the second method: he
10 presented evidence which permitted the jury to reasonably
disbelieve Rhodes’s proffered reason.
One segment of Ross’s trial testimony is especially
compelling. Ross testified that Ron Kirkpatrick--the supervisor
who was instrumental in Rhodes’s decision to fire Ross for
soliciting tips--had himself received tips. R. 2-48 at ¶¶ 15-17.
Yet Kirkland decided to fire Ross, an African-American, and replace
him with a non-minority. The jury could have chosen to reject
Kirkland and Sweeney’s testimony, i.e., that they decided to fire
Ross for soliciting tips, as untrue. Although we hold that this
testimony satisfies Wilson v. Attaway’s “any evidence” standard,
Ross presented additional evidence, which satisfies the more
demanding “substantial evidence” standard. Ross further testified
that sometime prior to his being fired, Kirkland pointed to Ross
and said “You see that one over there, I am going to get rid of
him.” R. 2-55 at ¶¶ 21-23. Kirkland made that statement to a
white man. Id. at ¶¶ 24, 25. Ross contends that Kirkland’s
reference to “that one over there” evinced racial animus by a
decision maker who would ultimately fire him.
Ross also testified that sometime in 1990, Kevin Sweeney said
“I never seen as many blacks in this building except in a Tarzan
movie.” R. 2-117, at ¶¶ 4-7. Even though Kirkland and Sweeney
made their comments long before they fired Ross, that did not
11 prevent Ross from using these statements as evidence to persuade
the jury that it should disbelieve Rhodes’s proffered reason. See
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 (11th Cir.
1998) (citing Allen v. County of Montgomery, 788 F.2d 1485, 1488 (11th Cir. 1986)).
The district judge rejected the Tarzan remark as an “isolated
general racial remark,” unable to aid Ross in proving his case.
The trial judge erred. Although we have repeatedly held that such
comments are not direct evidence of discrimination because they are
either too remote in time or too attenuated because they were not
directed at the plaintiff, see, e.g., Evans v. McClain of Ga.,
Inc., 131 F.3d 957 (11th Cir.1997), we have not held that such
comments can never constitute circumstantial evidence of
discrimination. Other Courts of Appeals have indicated that such
comments may provide circumstantial evidence to support an
inference of discrimination. E.g., Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 521 (3rd Cir. 1997) (“Although stray remarks
by non-decisionmakers alone are insufficient to establish
discriminatory intent, we have held that such remarks can still
constitute evidence of the atmosphere in which the employment
decision was carried out.”).
Ross’s case relied on circumstantial evidence. Even the
district judge so concluded. That is clear from the trial court’s
12 use of McDonnell Douglas’s burden-shifting analysis, which does not
apply in direct evidence cases. See Massaro v. Mainlands Sects. 1&2
Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993). Because
Ross’s case turned on circumstantial evidence, the proper inquiry
is whether Sweeney’s “Tarzan” remark and Kirkland’s remark, when
read in conjunction with the entire record, are circumstantial
evidence of those decisionmakers’ discriminatory attitude. If so,
the court must then determine whether such circumstantial evidence,
along with other evidence (including Ross’s prima facie case),
might lead a reasonable jury to disbelieve Rhodes’s proffered
reason for firing Ross. We conclude that these comments,
considered together with the fact that Kirkland had received tips,
support the jury’s rejecting Rhodes’s proffered explanation for
In our view, Ross’s evidence created a genuine issue of fact
concerning the truth of Rhodes’s proffered reason. The jury could
have found that the tipping episode was a pretext for firing Ross.
That is enough because, consistent with Combs, once Ross was able to present evidence from which a jury reasonably could have
disbelieved Rhodes’ proffered explanation for its action, it is the
jury’s job (not ours) to decide whether Rhodes acted with
discriminatory intent. See Combs v. Plantation Patterns, 106 F.3d
at 153 (“[O]ne way a plaintiff may succeed in establishing
discrimination is by showing that the employer’s proffered
13 explanations are not credible. When that happens, the plaintiff
may or may not ultimately prevail in the litigation, because the
factfinder may or may not choose to make the permissible inference
of discrimination.”). Here, the jury made that inference, and it
was a permissible one. Because Ross presented enough evidence from
which the jury could find pretext, the jury’s final, permissible
inference as to the question of Rhodes’s intent should be left
undisturbed. Therefore, the judgment of the district court is
REVERSED and the case is REMANDED to the district court with
instructions to reinstate the jury verdict and to enter judgment in
accordance therewith, with allowance of interest from the date the
jury rendered its verdict.