1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-1995

Barber v CSX Distribution

Precedential or Non-Precedential:

Docket 94-3604

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Recommended Citation

"Barber v CSX Distribution" (1995). 1995 Decisions. Paper 268.

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1 

3551 

58102 

 

109153 . 

160204 . 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 94-3604 and 94-3653 

 

SIMON A. BARBER 

 Appellant No. 94-3604 

v. 

CSX DISTRIBUTION SERVICES, 

a UNIT OF CSX TRANSPORTATION, INC,; 

CSX TRANSPORTATION, INC. 

 Appellants No. 94-3653 

 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil No. 92-cv-01241) 

 

Argued July 28, 1995 

Before: NYGAARD and McKEE, Circuit Judges and 

FULLAM, District Judge2

(Opinion filed October 16, 1995) 

 

THEODORE J. KUKUNAS, ESQUIRE (ARGUED) 

419 Frick Building 

437 Grant Street 

Pittsburgh, PA 15219 

 Attorney for Simon A. Barber

 

2

Honorable John P. Fullam, Senior United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation. 
2 

FREDERICK W. BODE, III, ESQUIRE (ARGUED) 

Dickie, McCamey & Chilcote 

Two PPG Place, Suite 400 

Pittsburgh, PA 15222-5402 

 Attorney for CSX Distribution Services

 and CSX Transportation, Inc.

OPINION OF THE COURT

McKEE, Circuit Judge. 

 Simon A. Barber appeals from the district court's entry of 

judgment in favor of his employer, CSX Transportation, Inc., 

following a jury verdict in favor of Barber. Barber sued under 

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(1988) ("ADEA"), alleging discriminatory failure to promote and 

retaliation for his assertion of his discrimination claim. 

Although we agree that defendants3 were entitled to judgment as a 

matter of law on Barber's retaliation claim, we hold that the 

district court improperly overturned the jury's finding that 

defendants' failure to promote Barber was in violation of the 

ADEA. Therefore, we will reverse in part and remand to the 

district court for proceedings consistent with this opinion. 

I. BACKGROUND

 Simon Barber has been employed by CSX Transportation or its 

predecessors for the last thirty-eight years. During his tenure 

with CSX, Barber has served in various capacities of increasing 

responsibility and has received numerous merit or performance 

 

3

 Although in substance Barber's claims appear to involve 

only his employer as the sole defendant, hereinafter we refer to 

"defendants" to be consistent with the district court's opinion, 

the language in Barber's brief and the caption in this matter. 
3 

salary increases and letters of commendation. In February of 

1987, Barber took the position of Chief Clerk essentially serving 

as the office manager in defendants' Pittsburgh sales office. The 

position of Territorial Account Executive became available in 

that office in March of 1990, and was posted on the company wide 

computer system. The Territorial Account Executive was 

responsible for the design, marketing and sale of CSX services. 

 Eight applications were submitted for the Territorial 

Account Executive position. CSX's Human Resources Department 

screened the applications and determined that only four of the 

applicants met the minimum qualifications. Those four were: 

 (1) Scott Delasandro, age 37 -- one year of 

railroad experience and no sales experience. 

 (2) Kathy Ball, age 44 -- twenty years of 

railroad experience, fifteen of which were in 

accounting and five of which were in telemarketing. 

 (3) Andrew Kelly, age 53 -- thirty-four years of 

railroad experience including his position as Sales 

Representative in the Pittsburgh sales office at the 

time he applied for the Territorial Account Executive 

position. 

 (4) Plaintiff, Simon Barber, then age 52 --

thirty-four years of railroad experience, including 

fourteen years of railroad sales experience and seven 

years of customer service experience. 

 Robert Edmonds, Director of Sales in the Pittsburgh sales 

office, was Barber's supervisor at the time, and was responsible 

for selecting the Territorial Account Executive whom Edmonds 

would also supervise. Edmonds interviewed the two younger 

applicants, Scott Delasandro and Kathy Ball, both of whom worked 

in the Baltimore regional office. Although he did not interview 

Andrew Kelly, Edmonds informally discussed the position with 
4 

Kelly after Kelly submitted his application. However, Kelly 

withdrew his application after learning the salary. Edmonds did 

not interview or discuss the position with Barber. 

 Even though Edmonds did not formally interview either Kelly 

or Barber, Edmonds filled out an "Interview Report Form" for both 

of those applicants as well as for the two applicants whom he did 

interview. That interview report, dated April 5, 1990, stated 

that Barber was "qualified but [did] not possess the credentials 

of Kathy Ball" who was selected. Interestingly, Kathy Ball's 

interview report was dated May 2, 1990, nearly a month after she 

was actually selected. 

 On May 23, 1990, Barber wrote a letter to defendants' Human 

Resources Department questioning Edmonds' decision to award the 

position to Ball whom Barber felt was less experienced and less 

qualified than he was. Specifically, Barber's letter stated: 

 I recently submitted a Job Application 

Form for the position of Territorial Account 

Executive (Job Vacancy No. 199) at 

Pittsburgh, PA. 

 Mr. Robert W. Edmonds, Jr., DirectorSales, Pittsburgh, has informed me the 

position has been awarded to Ms. Kathy Ball 

from Telemarketing at Baltimore. In view of 

my 21 years of experience in this field (14 

years direct sales and 7 years customer 

service), I am quite puzzled as to why the 

position was awarded to a less qualified 

individual. 

 I would greatly appreciate your response 

as to why I was not awarded this job. 

 

App. at 363. Shortly thereafter, Edmonds called Barber into his 

office and expressed disappointment over that complaint. On 
5 

November 28, 1990, Barber received notification that, as of 

December 5, 1990, his position as Chief Clerk was being 

eliminated as a result of a company wide reduction in force. 

Edmonds made the decision to eliminate Barber's position of Chief 

Clerk after receiving a mandate from management to eliminate one 

of three clerical positions in the Pittsburgh sales office.4 

 On May 13, 1992, Barber filed this action in the United 

States District Court for the Western District of Pennsylvania. 

Barber's complaint alleged violations of the ADEA, gender 

discrimination under the Civil Rights Act of 1964, 42 U.S.C. 

§2000 et seq. (1988) ("Title VII"), and unlawful retaliation 

under both the ADEA and Title VII. The resulting trial was 

bifurcated and issues of liability were severed from any 

determination of damages. Barber's age discrimination claims 

were tried to a jury while his Title VII sex discrimination and 

retaliation claims were tried to the court. The court found in 

favor of CSX on Barber's Title VII claims and Barber does not 

appeal that ruling. However, the jury found that CSX violated the 

ADEA by failing to promote Barber because of age discrimination 

and by retaliating against him when he voiced his displeasure at 

not being promoted. Following trial, the court granted a defense 

motion for judgment as a matter of law on both the age 

discrimination and retaliation claims, notwithstanding the jury's 

 

4

 The three clerical positions in the Pittsburgh sales 

office consisted of two Secretary-Typists and one Chief Clerk. 
6 

special verdicts in favor of Barber. Barber now appeals that 

ruling.5

II. DISCUSSION

 We exercise plenary review of the district court's entry of 

an order granting CSX's motion for judgment as a matter of law. 

See Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892 

(3d Cir. 1994); Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 

259 (3d Cir. 1987), cert. denied, 488 U.S. 1004 (1989) (motion 

for judgment notwithstanding the verdict). Therefore, we must 

apply the same standard to this record as the district court. See

Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253 (3d 

Cir. 1986). We afford de novo review to the district court's 

conclusions of law, but review factual findings to "determine 

whether the evidence and justifiable inferences most favorable to 

[Barber] afford any rational basis for the verdict." Bhaya, 832 

F.2d at 259. 

 A. AGE DISCRIMINATION CLAIM

 The ADEA prohibits age discrimination in employment against 

an individual over age 40. 29 U.S.C. § 623 (a)(1). Because the 

prohibition against age discrimination contained in the ADEA is 

similar in text, tone, and purpose to the prohibition against 

discrimination contained in Title VII, courts routinely look to 

 

5

 In their cross-appeal, defendants seek review of the 

district court's conditional ruling denying their motion for a 

new trial under Rule 59. Because we are affirming the district 

court's judgment as a matter of law in favor of the defendants on 

Barber's retaliation claim, we need not address the issues raised 

in the cross appeal. 
7 

law developed under Title VII to guide an inquiry under the ADEA. 

See, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir. 

1985), cert. denied, 474 U.S. 1057 (1986). Thus, we follow the 

evidentiary framework first set forth by the Supreme Court in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

subsequently refined in Texas Dep't of Community Affairs v. 

Burdine, 450 U.S. 248 (1981), and recently clarified in St. 

Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993). 

In addition, Barber's failure to promote claim is analogous to a 

claim of failure to hire. Thus, in order to make out a prima 

facie case, Barber must show "1) that he belongs to the protected 

class, 2) that he applied for and was qualified for the job, 3) 

that despite his qualifications he was rejected, and 4) that the 

employer either ultimately filled the position with someone 

sufficiently younger to permit an inference of age discrimination 

or continued to seek applicants from among those having 

plaintiff's qualifications." Fowle v. C & C Cola, 868 F.2d 59, 

61 (3d Cir. 1989) (citations omitted). 

 Once a plaintiff establishes a prima facie case the law 

creates a presumption of unlawful discrimination, and the 

defendant employer must articulate a "legitimate 

nondiscriminatory explanation for the employer's adverse 

employment action." Seman v. Coplay Cement Co., 26 F.3d 428, 432 

(3d Cir. 1994). If the employer puts forth a legitimate business 

explanation, "then the presumption of discriminatory intent 

created by the employee's prima facie case is rebutted and the 

presumption simply `drops out of the picture.'" Id. (quoting 
8 

Hicks, U.S. at , 113 S. Ct. at 2749). The plaintiff then 

has an opportunity to show that the reasons proffered by the 

employer were a pretext for what, in reality, was a 

discriminatory motivation. See id. Of course, the ultimate 

burden to prove discrimination on the basis of age (burden of 

persuasion) remains with the plaintiff at all times. Hicks, 

U.S. at , 113 S. Ct. at 2749; Burdine, 450 U.S. at 256; Bhaya, 

832 F.2d at 260. 

 The district court found that Barber established a prima 

facie case from which an inference of age discrimination could be 

drawn. Barber v. CSX Distribution Servs., No. 92-1241, slip op. 

at 2 (W.D. Pa. Oct. 6, 1994). Defendants contest that ruling 

arguing that Barber failed to establish the fourth element of a 

prima facie case -- that the employer filled the position with 

someone sufficiently younger to permit an inference of age 

discrimination. We agree with the district court's conclusion 

that Barber established a prima facie case. It is undisputed 

that Barber was 52 years of age when he was rejected for the 

position of Territorial Account Executive, and the successful 

candidate was 44. Defendants, without citation to supporting 

authority, assert that this "eight year age difference is not 

sufficient to establish the fourth element of a prima face case." 

Brief of Appellees/Cross Appellants at 25. 

 A plaintiff under the ADEA need not show that the successful 

candidate was someone who was not in the protected class, i.e. 

below age 40. All that need be shown is that the beneficiary of 

the alleged discrimination is "sufficiently younger" to permit an 
9 

inference of age discrimination. Maxfield, 766 F.2d at 792 

("Courts that have addressed this issue squarely have universally 

permitted a prima facie case to be shown through proof that the 

favored person was younger than plaintiff. All have held that 

the replacement need not be younger than 40, the age at which 

ADEA protection begins.") (collecting cases). There is no 

magical formula to measure a particular age gap and determine if 

it is sufficiently wide to give rise to an inference of 

discrimination, however, case law assists our inquiry. In Healy 

v. New York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988), we 

concluded that nine years difference was sufficient to establish 

a prima facie case of age discrimination even though the 

favorably treated employee was also within the protected class, 

id. at 1214.6 In Douglas v. Anderson, 656 F.2d 528 (9th Cir. 

1981), the Court of Appeals for the Ninth Circuit held that five 

years difference, in addition to substantial evidence of 

plaintiff's qualifications for the position, was sufficient to 

establish a prima facie case of age discrimination, id. at 533.7

 It is clear that here, the eight year difference between 

Barber and the successful candidate, Kathy Ball, could support a 

finding that Ball was "sufficiently younger" than Barber to 

permit an inference of age discrimination. That difference, 

 

6

 In Healy, the employer ultimately prevailed because the 

employee was unable to show that the employer's proffered reason 

for the allegedly discriminatory treatment was a pretext for 

illegal discrimination. Id. at 1220. 

7

 In Douglas, as in Healy, the employer ultimately prevailed 

because the nondiscriminatory justifications proffered for the 

employer's actions were credible. Id. at 535. 
10 

together with the undisputed existence of the remaining elements 

of Barber's prima facie case, were clearly sufficient to shift 

the burden of production to the defendants and require them to 

articulate a legitimate, non-discriminatory motivation for their 

failure to promote Barber. Thus, the district court properly 

ruled that Barber had established a prima facie case of age 

discrimination. 

 However, the district court erred in concluding that Barber 

did not demonstrate that defendants' proffered business reasons 

were pretextual. Barber v. CSX Distribution Servs., No. 92-1241, 

slip op. at 3-4 (W.D. Pa. Oct. 6, 1994). The district court was 

obligated to review the record before it and determine if the 

evidence and the inferences that reasonably arose from it 

provided "any rational basis for the verdict." Bhaya, 832 F.2d 

at 259 (emphasis added). In Bhaya (a case very similar to this 

one) we reversed the district court's entry of judgment for the 

defendant employer and remanded the case for reinstatement of the 

jury verdict finding age discrimination. Here, as in Bhaya 

 [t]he issue on this appeal is 

straightforward. The jury has told us which 

explanation it believes, and we are bound by 

that finding if there is evidence of record 

to support it. Our only inquiry is whether, 

taking the record as a whole and resolving 

all factual disputes in favor of the 

plaintiffs, the evidence and justifiable 

inferences therefrom reasonably support the 

plaintiffs' explanation. We turn now to 

consider whether a reasonable juror could 

have concluded that the defendant 

intentionally discriminated against the 

plaintiffs because of their age. 

Id. at 260. 
11 

 The facts and reasonable inferences here clearly allow a 

reasonable juror to conclude that Barber's age was a motivating 

factor in his employer's refusal to promote him. Defendants 

maintain that Barber was not awarded the position because "Kathy 

Ball was the best candidate" for the job, and they cite several 

legitimate considerations that they argue factored into the 

determination. See Brief of Appellees/Cross Appellants at 11-12. 

That argument overlooks the procedural posture here. The jury has 

spoken. Although the district court may have found the 

legitimate explanations credible, the jury did not. That 

difference may well be nothing more than a different evaluation 

of the credibility of the various witnesses at trial. 

Nevertheless, this record does not allow the district judge to 

disregard the jury's determination of credibility and substitute 

it with his own. 

 Edmonds testified that he did not formally interview either 

of the two older candidates (Kelly or Barber) because he was 

familiar with their work as he had supervised both of them for 

nine months in the Pittsburgh sales office. Barber notes that 

Edmonds had an opportunity to evaluate Kelly's performance as a 

salesman, but that he (Barber) was a Chief Clerk, and Edmonds had 

no basis to evaluate his abilities in sales. Barber also argued 

that Kelly had an opportunity to informally discuss the position 

with Edmonds and eventually expressed his disinterest in the 

position after learning the proposed salary, whereas Barber was 

given no opportunity to discuss the position with Edmonds. 
12 

 The district court, apparently discredited Barber's 

arguments. The court reasoned: 

It was undisputed, however, that . . . 

[Edmonds] was acquainted with plaintiff and 

the other older applicant because plaintiff 

and the other applicant had worked for the 

official in his department for a nine-month 

period preceding the time the employment 

decision was made. The applicant who was 

promoted, as well as the other younger 

applicant, on the other hand, were unknown to 

[Edmonds], and he explained his desire to 

interview them to learn more about their 

qualifications for the position. 

Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3 

(W.D. Pa. Oct. 6, 1994). 

 The jury was entitled to credit Barber's arguments as more 

credible than the contrary explanations of his employer. This is 

particularly true when we consider the "interview reports" that 

Edmonds completed. The district court's opinion inexplicably 

overlooks the fact that Edmonds completed these reports for all 

candidates even though he only interviewed two of them. The 

court also overlooks the fact that Barber's "interview report" 

dated April 5, 1990 refers to Ball as the candidate who had been

selected for the job, but the jury could conclude from Ball's 

interview report that she had not been interviewed when Edmonds 

declared that she "had been" selected. The district court was 

not free to ignore this testimony nor the inferences that this 

record supports. "In crediting the defendants' explanation, the 

district court effectively reversed the requirement that in 

reviewing a jury verdict we are to draw all inferences in favor 

of the prevailing party." Bhaya, 832 F.2d at 262. "Evaluation 
13 

of witness credibility is the exclusive function of the jury, and 

where the only evidence of intent is oral testimony, a jury could 

always choose to discredit it." Id. See also Dreyer v. Arco 

Chem. Div. of Atl. Richfield, 801 F.2d 651, 655-56 (3d Cir. 

1986), cert. denied, 480 U.S. 906 (1987). 

 The district court also stated that Barber had failed to 

persuade the court that defendants' explanation that it factored 

Barber's unwillingness to move into its decision was pretext. The 

district judge stated: 

In this regard, defendants offered 

uncontradicted evidence that the successful 

applicant was employed in the Baltimore area 

and would have to relocate in order to accept 

the position. Defendants also took the 

position that an employee's willingness to 

relocate is evidence of the employee's 

loyalty and commitment to the employer. 

Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3 

(W.D. Pa. Oct. 6, 1994). Although this testimony persuaded the 

court, it apparently did not persuade the jury. This is 

understandable because there was also testimony that the position 

that Barber sought did not require relocation. Accordingly, the 

record clearly supports the jury's rejection of this explanation. 

In fact, defendants concede that "Plaintiff properly states that 

willingness to relocate was not a job qualification." Brief for 

Appellees/Cross Appellants at 28. 

 Defendants maintain that the district court's entry of 

judgment as a matter of law is consistent with our decision in 

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). In Fuentes, we 

explained that a plaintiff satisfies the requisite quantum of 
14 

proof to rebut a defendant's stated legitimate business reason 

when the plaintiff produces evidence which: 

(1) casts sufficient doubt upon each of the 

legitimate reasons proffered by the defendant 

so that a factfinder could reasonably 

conclude that each reason was a fabrication; 

or

(2) allows the factfinder to infer that 

discrimination was more likely than not a 

motivating or determinative cause of the 

adverse employment action. 

Id. at 762 (emphasis added). Defendants place particular, if not 

exclusive, emphasis on the first of these criteria, arguing that 

Barber's rebuttal evidence must go to each of their proffered 

legitimate business reasons. However, Fuentes also allows a 

plaintiff to more generally submit evidence raising an inference 

of discrimination. Id. 

Hicks teaches . . . that rejection of the 

employer's proffered nondiscriminatory reason 

will permit the trier of fact to infer the 

ultimate fact of intentional discrimination, 

so long as there is a finding of 

discrimination. In other words, `[t]he 

factfinder's disbelief of the reasons put 

forward by the [employer] . . . may, together 

with the elements of the [employee's] prima 

facie case, suffice to show intentional 

discrimination.'" 

Seman, 26 F.3d at 433 (quoting Hicks, U.S. at , 113 S. Ct. 

at 2749 n.4) (citation and footnote omitted) (brackets in 

original). Here, the record contained Defendants' inconsistent 

interview techniques, the pre-dated and inaccurate "interview 

report forms", and differing accounts of the relevance of Ball's 

willingness to relocate, all of which could have factored into a 
15 

jury's decision to discredit defendants' explanation that she was 

promoted over Barber because she was a better candidate than him. 

Therefore, we will reverse and remand for reinstatement of the 

jury's verdict in favor of Barber on his failure to promote 

claim. 

B. RETALIATION CLAIM

 Barber alleged that Edmonds eliminated the position of Chief 

Clerk to retaliate for the letter of complaint that Barber wrote 

to defendants' Human Resources Department, and that this 

retaliation violated the ADEA. The ADEA states in part: 

(d) It shall be unlawful for an employer to 

discriminate against any of his employees or 

applicants for employment . . . because such 

individual, member or applicant for 

membership has opposed any practice made 

unlawful by this section, or because such 

individual, member or applicant for 

membership has made a charge, testified, 

assisted, or participated in any manner in an 

investigation, proceeding, or litigation 

under this chapter. 

29 U.S.C. § 623(d). The procedural framework in ADEA retaliation 

cases also follows that of Title VII disparate treatment cases as 

set forth in McDonnell Douglas, 411 U.S. at 802-05. See Geary v. 

Visitation of Blessed Virgin Mary, 7 F.3d 324, 329 n.4 (3d Cir. 

1993). Thus, to establish a prima facie case of retaliation, a 

plaintiff must show: (1) that he engaged in protected conduct; 

(2) that he was subject to an adverse employment action 

subsequent to such activity; and (3) that a causal link exists 

between the protected activity and the adverse action. See Jalil 
16 

v. Advel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 

403 U.S. 1023 (1990). 

 The district court concluded that Barber failed to establish 

a prima facie case of retaliation because he did not demonstrate 

"that he engaged in protected conduct." Specifically, the court 

concluded "that the letter written by plaintiff to the Department 

of Human Resources was not a complaint opposing a practice made 

unlawful by the ADEA, nor was it a charge against defendants 

under Section 623 of the ADEA." Barber v. CSX Distribution 

Servs., No. 92-1241, slip op. at 5 (W.D. Pa. Oct. 6, 1994). As 

quoted above, Barber's letter to Human Resources complains about 

unfair treatment in general and expresses his dissatisfaction 

with the fact that someone else was awarded the position, but it 

does not specifically complain about age discrimination. 

Accordingly, the letter does not constitute the requisite 

"protected conduct" for a prima facie case of retaliation. 

 In reaching this conclusion, it is important to note that we 

do not require a formal letter of complaint to an employer or the 

EEOC as the only acceptable indicia of the requisite "protected 

conduct" under the ADEA. See, e.g., Sumner v. United States 

Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (explaining that 

acceptable forms of protected activity under Title VII's 

analogous opposition clause include formal charges of 

discrimination "as well as informal protests of discriminatory 

employment practices, including making complaints to management, 

writing critical letters to customers, protesting against 

discrimination by industry or society in general, and expressing 
17 

support of co-workers who have filed formal charges"). It is 

neither necessary, nor appropriate to here attempt to define with 

precision the type of conduct that will give rise to a 

retaliation claim under the ADEA. Our analysis requires only 

that we analyze the message that Barber conveyed, and not the 

medium of conveyance. 

 Barber's letter is just too vague to support a finding that 

his job was eliminated because he engaged in behavior that was 

protected under the ADEA. A person has engaged in "protected 

conduct" when s/he "has opposed any practice made unlawful by . . 

. section [623]." 29 U.S.C. § 623(d). The practice made 

unlawful by § 623 is "discriminat[ion] against any individual 

with respect to his compensation, terms, conditions, or 

privileges of employment, because of such an individual's age." 

29 U.S.C. § 623(a). Thus, the statute provides that a person has 

engaged in "protected conduct" when s/he opposes discrimination 

on the basis of age. It is clear from Barber's letter that he 

felt that he had been treated unfairly as he stated that "the 

position was awarded to a less qualified individual." However, 

that letter does not explicitly or implicitly allege that age was 

the reason for the alleged unfairness. A general complaint of 

unfair treatment does not translate into a charge of illegal age

discrimination. The jury was not presented with any evidence to 

support its conclusion that Barber's position was eliminated 

because he engaged in protected activity. Accordingly, the 

district court properly granted the defendants' motion for 

judgment as a matter of law on that portion of Barber's claim. 
18 

III. CONCLUSION

 For the reasons stated above, we will reverse the order of 

judgment as a matter of law and remand the matter for 

reinstatement of the jury verdict in favor of Barber relative to 

the age discrimination claim but affirm the order of judgment as 

a matter of law on the retaliation claim.