FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10229

Non-Argument Calendar

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D. C. Docket No. 05-00904-CV-LSC

SHIRLEY A. TOLBERT,

Plaintiff-Appellant,

versus

JEFFERSON COUNTY COMMISSION,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Alabama

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(October 22, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

Shirley A. Tolbert appeals the district court’s denial of her motion for a new
trial in her employment discrimination lawsuit, filed pursuant to the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Tolbert, who was

then a 61-year-old budget analyst, alleged that her former employer, Jefferson

County Commission, violated the ADEA by disciplining and ultimately

discharging her, despite her compliance with the County’s policies. In this appeal,

Tolbert argues that the district court abused its discretion by not granting her

motion for a new trial because she presented evidence of age discrimination that

was insufficiently or entirely unrebutted at trial by the County. Finding no abuse

of discretion, we affirm.

STANDARD OF REVIEW

We review a district court’s denial of a motion for a new trial pursuant to

FED. R. CIV. P. 59 for an abuse of discretion. Lambert v. Fulton County, 253 F.3d

588, 595 (11th Cir. 2001). Our broad deference is warranted because “the trial

court[] [had] first-hand experience of the witnesses, their demeanor, and a context

of the trial. This level of deference is particularly appropriate where a new trial is

denied and the jury’s verdict is left undisturbed.” Rosenfield v. Wellington Leisure

Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987) (citation omitted). “[N]ew trials

should not be granted on evidentiary grounds unless, at a minimum, the verdict is

against the great – not merely the greater – weight of the evidence.” Lipphardt v.

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Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)

(citation and internal quotation marks omitted).

DISCUSSION

The district court did not abuse its discretion by denying Tolbert’s motion

for a new trial. The ADEA makes it “unlawful for an employer . . . to discharge

any individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate

treatment, liability depends on whether the protected trait (under the ADEA, age)

actually motivated the employer’s decision.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d 105 (2000)

(citation and internal quotation marks omitted). “Although intermediate

evidentiary burdens shift back and forth [when the plaintiff establishes a prima

facie case of discrimination], ‘[t]he ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff remains at all

times with the plaintiff.’” Id. at 143, 120 S. Ct. at 2106 (quoting Texas Dep’t of

Comm. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d

207 (1981)) (alteration in original).

Tolbert argues that the district court abused its discretion by not granting her

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motion for a new trial because her evidence of age discrimination was

insufficiently or entirely unrebutted at trial by the County. Tolbert contends that

the County’s proffered reasons for discharging her were pretextual because she

would have had to violate county policies to comply with her supervisor’s

instructions. She further contends that she would have been evaluated negatively if

she had disobeyed those regulations. She points to her own trial testimony to

establish the County’s discriminatory animus.

The County responds that the district court did not abuse its discretion

because the verdict was not against the great weight of the evidence. The County

recognizes that Tolbert established a prima facie case of age discrimination. But

the County notes that it met its burden of producing legitimate, non-discriminatory

reasons for her dismissal, namely her non-compliance and unprofessional conduct.

Thus, Tolbert bore the burden of persuading the jury that her discharge was the

direct result of intentional age discrimination.

The County argues that the jury’s verdict was not against the great weight of

the evidence because Tolbert’s only proof of intentional age discrimination was her

own uncorroborated testimony. The County also notes that the jury observed the

witnesses’ demeanor, including Tolbert’s unresponsive and elusive answers to

questions posed at trial. Thus, the County argues that we should defer to the jury’s

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credibility determinations and weighing of the evidence.

We agree with the County. In reaching its verdict, the jury was free to

weigh the evidence and make credibility determinations. All of Tolbert’s evidence

tending to establish discriminatory animus was contradicted by the testimony of

several witnesses that tended to discredit her evidence. Therefore, the jury’s

verdict for the County was not against the great weight of the evidence, and the

district court did not abuse its discretion by denying Tolbert’s motion for a new

trial.

AFFIRMED.

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