Isenbergh v. Knight-Ridder Newspaper Sales, Inc.

• Decision Date: 11 June 1996
• Docket Number: KNIGHT-RIDDER,No. 94-4769,94-4769
• Citation: 84 F.3d 1380
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1484, 69 Empl. Prac. Dec. P 44,278 Paul ISENBERGH, Plaintiff-Appellant, v.NEWSPAPER SALES, INCORPORATED, a/k/a Newspapers First, Inc., Knight-Ridder, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1380

84 F.3d 1380

71 Fair Empl.Prac.Cas. (BNA) 1484,

69 Empl. Prac. Dec. P 44,278

Paul ISENBERGH, Plaintiff-Appellant, v. KNIGHT-RIDDER NEWSPAPER SALES, INCORPORATED, a/k/a Newspapers First, Inc., Knight-Ridder, Inc. Defendants-Appellees.

No. 94-4769.

United States Court of Appeals Eleventh Circuit.

June 11, 1996.

William R. Amlong, Amlong & Amlong, P.A., Ft. Lauderdale, FL, for appellant.

Robert J. Gregory, E.E.O.C., Office of General Counsel, Washington, D.C., for amicus E.E.O.C.

John-Edward Alley, Robert D. Hall, Jr., Alley and Alley, Chartered, Tampa, FL, Charles A. Shanor, Kelly J. Koelker, Paul, Hastings, Janofsky & Walker, Atlanta, GA, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL, ^* Senior Circuit Judge.

ENGEL, Senior Circuit Judge:

Plaintiff Paul Isenbergh appeals the district court's grant of judgment as a matter of law for defendant Knight-Ridder Newspaper Sales, Inc. ("KRNS"), a/k/a Newspapers First, Inc. ("Newspapers First"), in Isenbergh's suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Isenbergh claims that Newspapers First discriminated against him because of his age in selecting the manager for the company's Miami sales office. After trial, a jury returned a verdict in favor of Isenbergh and awarded him $250,000 in damages. Newspapers First, which earlier had submitted a motion for judgment as a matter of law that the district court denied, renewed its motion under Rule 50(b) of the Federal Rules of Civil Procedure. The district court granted the motion. Because we agree that Isenbergh did not produce evidence from which the jury could reasonably infer intentional discrimination based on age, we affirm.

I.

In 1990, KRNS merged with Million Market Newspapers/Times Mirror National Marketing, Inc. ("MMTM") to form Newspapers First. At the time of the merger, Isenbergh, sixty years old, was the manager of KRNS's Miami sales office. Larry Malloy, forty-four years old, was the manager of MMTM's Miami sales office. Both were candidates, along with eight other KRNS and MMTM managers from around the country, for the new position of manager of Newspapers First's Miami sales office. To select the new manager, King Anthony, the former president of MMTM and current president of Newspapers First, and John Kosanke, the former president of KRNS and current executive vice-president of Newspapers First, interviewed the ten candidates. The only real competition for the new position, however, was apparently between Isenbergh and Malloy, because Newspapers First did not want to move a manager from another part of the country to Miami. In conjunction with the interviews, Anthony and Kosanke used an "alternation ranking system" to rate the candidates. KRNS had never used this system before to make personnel decisions. Under the system, each candidate received two ordinal rankings: one based on past management performance and one based on the interview. The two rankings were averaged to obtain each candidate's overall score.

When the nine candidates who had worked at KRNS or MMTM for more than six months were ranked according to this system Isenbergh finished eighth. Malloy finished second. Three managers over age fifty--including one who was sixty-three years old--finished higher than Isenbergh. Malloy got the job, and Isenbergh was offered the chance to interview for a sales position in Miami. He chose to take early retirement instead.

Isenbergh testified that the atmosphere at his interview was "cold" and that Anthony was on the phone most of the time. His interview allegedly lasted only a half-hour, whereas Malloy's was a full hour, as all of the interviews were planned to be. Newspapers First presented evidence challenging Isenbergh's version of what happened at the interview.

Isenbergh worked for KRNS from the late 1960s until 1990, mostly as a salesman. He became a vice-president in 1984. In 1986, he won the praise of Kosanke by selling an advertising package to Walt Disney World. Isenbergh's competitors for the account included a newspaper whose sales were handled by Malloy. The parties dispute the significance of this transaction. Isenbergh characterizes it as evidence of his good job performance in the past and of his superior qualification, relative to Malloy, for the managerial job. Newspapers First deems it to be irrelevant, because it involved sales, not management, and because Isenbergh's newspaper was able to offer Walt Disney World a lower advertising rate than was Malloy's newspaper.

There is conflicting evidence about how Isenbergh was viewed within the company and about his qualifications as a manager. Isenbergh points to his annual pay raises and management-by-objective bonuses that were approved by Kosanke, as well as to the lack of a paper trail of criticism, as evidence of his perceived competence. He further points to testimony by Kosanke that Isenbergh was a "seasoned manager" and a "satisfactory manager." Kosanke also testified, however, that Isenbergh was a "lone ranger" and was not a "team player." Isenbergh argues that his experience running newspaper offices of up to five people and commanding a department of about sixty men while he was in the Navy qualified him as a manager. Newspapers First counters that Isenbergh's job at KRNS entailed little management and that for the management Isenbergh did do, he was criticized by Kosanke. It stresses Malloy's extensive management experience and argues that he was better suited for the new job than Isenbergh.

II.

A.

We review de novo the district court's grant of judgment as a matter of law. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th Cir.1994), cert. denied, 515 U.S. 1132, 115 S.Ct. 2557, 132 L.Ed.2d 811 (1995). In other words, we apply the same standard as that applied by the district court. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). In considering a motion for judgment as a matter of law, a court must view all the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Id. The motion should be granted only if upon such consideration, the court finds that reasonable people in the exercise of impartial judgment could not arrive at a contrary verdict. Id. The court may not weigh the evidence or decide the credibility of witnesses. Watts v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 310 (11th Cir.1988) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc)). 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." Carter, 870 F.2d at 581.

Newspapers First argues that judgment as a matter of law is appropriate in age discrimination cases more often than in other cases because in age discrimination cases juries tend to return verdicts based on sympathy rather than law. Certainly it is true that in some age discrimination cases, "sympathy for the plaintiff may present an overriding but impermissible factor in a jury verdict for plaintiff." Chappell v. GTE Prods. Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). If there can be no reasonable dispute as to the facts of the case and the inferences to be drawn from them, judgment as a matter of law is of course applicable to prevent a jury verdict based purely on sympathy. The legal standard for when to grant judgment as a matter of law in age discrimination cases, however, is no different from that in other cases: whether reasonable people could arrive at a contrary verdict. In fact, this court has cautioned against taking employment discrimination cases away from the jury. See Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir.1994) (noting that summary judgment is often inappropriate in employment discrimination cases because the factual inquiry involves an examination of motive and intent); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir.1993) (noting that summary judgment is "generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case").

The fact that the district court judge allowed the question of Newspapers First's liability to go to the jury before granting judgment as a matter of law does not affect our review of the judgment. Before the 1991 amendment to Rule 50, a Rule 50 motion before the verdict was a "motion for directed verdict," and a Rule 50 motion after the verdict was a "motion for judgment notwithstanding the verdict." Now, both are termed "motion for judgment as a matter of law." The Advisory Committee on Rules has explained that one reason for the change in terminology was to express "the common identity of the two motions made at different times in the proceeding." Fed.R.Civ.P. 50(a) advisory committee's note on 1991 amendment. Furthermore, our cases have acknowledged that the standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict. E.g., Lamb v. Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir.1993). The district court's grant of Newspapers First's motion for judgment as a matter of law after the jury verdict under Rule 50(b) was not inconsistent with its denial of Newspapers First's motion for judgment as a matter of law before the verdict under Rule 50(a). As the Advisory Committee has explained,

Often it appears to the court ... that a motion for judgment as a matter of law made at the close of the evidence should be reserved for a post-verdict decision. This is so because a jury verdict for the moving party moots the issue and because a preverdict ruling gambles that a reversal may result in a new trial that might have been avoided. For these reasons, the court may often wisely decline to...