Isenbergh v. Knight-Ridder Newspaper Sales, Inc.

• Decision Date: 19 September 1996
• Docket Number: No. 94-4769,KNIGHT-RIDDER,94-4769
• Citation: 97 F.3d 436
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 735, 69 Empl. Prac. Dec. P 44,384 Paul ISENBERGH, Plaintiff-Appellant, v.NEWSPAPER SALES, INC., n.k.a. Newspapers First, Inc., Knight-Ridder, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 436

97 F.3d 436

72 Fair Empl.Prac.Cas. (BNA) 735,

69 Empl. Prac. Dec. P 44,384

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

No. 94-4769.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1996.

William R. Amlong and Walter W. Palmer, Amlong & Amlong, P.A., Ft. Lauderdale, FL, for Plaintiff-Appellant.

Robert J. Gregory, EEOC, Office of General Counsel, Washington, D.C., for Amicus EEOC.

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

PER CURIAM:

We withdraw altogether our earlier opinion dated June 11, 1996, and published at 84 F.3d 1380. Our decision for the case remains the same. We think today's opinion may in some ways better explain our thoughts, however.

Plaintiff Paul Isenbergh appeals the district court's grant of judgment as a matter of law for defendant Knight-Ridder Newspaper Sales, Inc. ("KRNS"), n/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 renewed its motion for judgment as a matter of law 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, --- U.S. ----, 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.

We look first to see whether Isenbergh has presented a prima facie case of discrimination. A plaintiff alleging age discrimination under the ADEA may choose one of three ways to establish a prima facie case: (1) direct evidence of discriminatory intent; (2) statistical proof of disparate treatment; or (3) meeting a test such as that set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). Plaintiff's burden in proving a prima facie case is light. See Brown v. American Honda Motor Co., 939 F.2d 946, 949 (11th Cir.1991).

In McDonnell Douglas, the Supreme Court articulated the four elements a plaintiff must show in order to establish a prima facie case of employment discrimination:

(i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The Supreme Court intended this framework to be flexible, see id. at 802 n. 13, 93 S.Ct. at 1824 n. 13, rather than "mechanized, or ritualistic," United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)). This court has enunciated various reformulations of the McDonnell Douglas test. For example, in Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir.1990), we set forth a slightly different variation of the McDonnell Douglas test in an ADEA case involving a "reduction in force." The plaintiff had to show

(1) that he was in a protected age group and was adversely affected by an employment decision; (2) that he was qualified for his current position or to assume another position at the time of discharge or demotion; and (3) evidence by which a fact finder might reasonably conclude that the employer intended to discriminate on the basis of age in reaching the decision at issue.

Earley, 907 F.2d at 1082.

The district court treated this case as a "failure to hire" case, as opposed to a "reduction in force" case. Although, as discussed above, case law suggests that the standard for establishing a prima facie case depends on whether the case concerns a reduction in force as opposed to a termination or a failure to hire, compare Earley, 907 F.2d at 1082 (listing prima facie case criteria for reduction-in-force cases), with Carter, 870 F.2d at 582 (listing prima facie case criteria for termination and failure-to-hire cases), the instant appeal demonstrates why, as we noted in Pace v. Southern Railway System, 701 F.2d 1383 (11th Cir.1983), employment discrimination cases are not easily...