*

Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of Florida, sitting

by designation. 

J.A. BEAVER, Plaintiff-Appellee,

v.

RAYONIER, INC., Defendant-Appellant.

No. 98-8457.

United States Court of Appeals,

Eleventh Circuit.

Sept. 13, 1999.

Appeal from the United States District Court for the Southern District of Georgia. (No. 2:97-CV-47-AAA),

Anthony A. Alaimo, Judge.

Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*

, Senior District Judge.

CARNES, Circuit Judge:

Plaintiff J.A. Beaver prevailed before a jury on his ADEA claim against his former employer

Rayonier, Inc. ("Rayonier"). Rayonier now appeals the district court's denial of its motion for judgment as

a matter of law and, in the alternative, for an amended judgment. For the reasons set forth below, we affirm.

I. BACKGROUND

A. FACTS

Rayonier, a North Carolina corporation which manufactures dissolving cellulose and fluff pulp,

operates one of its two mills in Jesup, Georgia. Rayonier employs both hourly and salaried employees at the

Jesup mill. Hourly employees are represented by one of four unions at the mill and their working conditions

are determined through collective bargaining. Salaried employees are not represented by a union and their

working conditions are set by Rayonier officials. In general, hourly employees do hands-on work while

salaried employees do supervisory work.

The plaintiff J.A. Beaver began working as an hourly employee in the maintenance department of

the Jesup mill in 1974. In 1980, Rayonier promoted him to the salaried position of shift maintenance
2

foreman. In that position, Beaver trained hourly employees to work as instrument people, electricians,

millwrights, pipefitters, welders, and machinists, and he supervised their work throughout the mill. In 1991,

Rayonier transferred Beaver to the finishing room, where he supervised all maintenance work. In 1994,

Rayonier again transferred Beaver, this time to the maintenance support unit-2 (MSU-2), where he supervised

operation of the mill's rolling equipment. Beaver supervised the MSU-2 until he was terminated.

During the first quarter of 1996, the Jesup mill lost approximately $50 million in sales due to a

decline in the price of pulp. According to Rayonier, that loss led the company to implement cost reductions

at the mill. As part of that cost reduction, the company offered a voluntary early retirement program.

Although 24 salaried employees retired as part of that program, that did not achieve as much savings as

Rayonier wanted. As a result, Rayonier decided to terminate 10 salaried employees in a September 9, 1996

reduction in force (RIF). Beaver, who was 54 years old at the time, was one of two salaried employees

terminated in the maintenance department. His position was eliminated as a result of Rayonier's decision to

consolidate his MSU-2 supervisor position with the MSU-1 supervisor position. Rayonier assigned Silas

Moxley, who was older than Beaver, to the new, consolidated position.

When Beaver was terminated, he told Rayonier he would take any available position with the

company. Even though seven vacant supervisor positions were available at the time of Beaver's termination,

Rayonier did not select him for another position. Instead, Rayonier chose employees who were younger than

Beaver to fill six of those seven positions.

B. PROCEDURAL HISTORY

After his termination, Beaver filed a notice of charge of discrimination with the EEOC. Following

the EEOC's issuance of a right to sue letter, Beaver filed this lawsuit alleging he had been terminated because

of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and

in order to deprive him of pension benefits in violation of the Employee Retirement Income Security Act

(ERISA), 29 U.S.C. §§ 1001, et seq. The district court subsequently granted Rayonier's motion for summary
 1

We raised sua sponte the jurisdictional question of whether the district court's February 17 judgment and

April 6 order were final because the district court's February 17 judgment reserved the issue of whether the

plaintiff was entitled to equitable relief. Beaver's complaint, however, did not specifically request equitable

relief and any jurisdictional question concerning whether the district court's February 17 judgment and April

6 order were final was cured when the court entered a May 7 amended final judgment which deleted the

reference to equitable relief. In addition, the parties have assured us that no issue remains in any form

concerning whether Beaver is entitled to equitable relief. Accordingly, we have jurisdiction to consider

Rayonier's appeal of the district court's amended final judgment. 

3

judgment with respect to the ERISA claim, but denied it with respect to the ADEA claim.

The ADEA claim was then tried before a jury. At the close of all the evidence, the district court

denied Rayonier's motion for judgment as a matter of law. The jury then returned a verdict in Beaver's favor

and awarded him $80,242 in backpay salary and benefits. In addition, the jury found Rayonier had wilfully

discriminated against Beaver. Accordingly, the district court doubled the amount of Beaver's damages and,

on February 17, 1998, entered judgment in favor of Beaver in the amount of $160,484.00.

Rayonier subsequently renewed its motion for judgment as a matter of law and moved in the

alternative for an amended verdict. The district court denied those motions on April 6. Rayonier appealed.1

II. ISSUES PRESENTED ON APPEAL

Rayonier's appeal requires us to address two issues: (1) whether the district court erred in denying

Rayonier judgment as a matter of law on Beaver's ADEA claim; and (2) whether the district court erred in

refusing to amend the judgment in regard to the amount of damages.

III. STANDARDS OF REVIEW

 "We review de novo a denial of judgment as a matter of law." See Clover v. Total System Services,

Inc., 176 F.3d 1346, 1350 (11th Cir.1999). We review only for an abuse of discretion a district court's refusal

to amend a judgment. See Day v. Liberty Nat'l Life Ins. Co., 122 F.3d 1012, 1014 (11th Cir.1997) cert.

denied Liberty Nat'l Life Ins. Co. v. Day, --- U.S. ----, 118 S.Ct. 1797, 140 L.Ed.2d 938 (1998).

IV. DISCUSSION

A. WHETHER THE DISTRICT COURT ERRED IN DENYING RAYONIER JUDGMENT AS A

MATTER OF LAW
4

 As an initial matter, Rayonier argues it is entitled to judgment as a matter of law because Beaver

failed to establish a prima facie case. That argument, however, comes too late. Because Rayonier failed to

persuade the district court to dismiss the action for lack of a prima facie case and proceeded to put on

evidence of a non-discriminatory reason—i.e., an economically induced RIF—for terminating Beaver,

Rayonier's attempt to persuade us to revisit whether Beaver established a prima facie case is foreclosed by

binding precedent. " 'When the defendant fails to persuade the district court to dismiss the action for lack of

a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's

rejection the factfinder must then decide whether the rejection was discriminatory' and the question of

whether the plaintiff properly made out a prima facie case is no longer relevant." Tidwell v. Carter Products,

135 F.3d 1422, 1426 n. 1 (11th Cir.1998) (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983) and Combs v. Plantation Patterns, 106

F.3d 1519, 1539 n. 11 (11th Cir.1997)).

Rayonier also argues that it is entitled to judgment as a matter of law because Beaver did not produce

sufficient evidence of intentional discrimination. Although neither the district court nor the court of appeals

may revisit the existence of a prima facie case, the Supreme Court has emphasized that " '[t]he plaintiff retains

the burden of persuasion [of showing intentional discrimination]. [H]e may succeed in this either directly

by persuading the [factfinder] that a discriminatory reason more likely motivated the employer or indirectly

by showing that the employer's proffered explanation is unworthy of credence." Aikens, 460 U.S. at 716, 103

S.Ct. at 1482 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089,

1095, 67 L.Ed.2d 207 (1981)).

In this case, Beaver makes two arguments in support of his position that the district court properly

denied Rayonier judgment as a matter of law. First, he argues Rayonier's claim that it needed to conduct an

economically induced RIF at the Jesup mill was merely a pretext for age discrimination. Second, Beaver

argues that even assuming Rayonier did conduct a legitimate RIF in response to a loss of sales, Rayonier
5

discriminated against him by intentionally choosing younger employees to fill vacant positions which existed

at the time of the RIF. We address each argument in turn.

1. Whether Rayonier's Non-Discriminatory Reason for Terminating Beaver Was Pretextual

 Beaver argues he presented sufficient evidence for a jury to conclude that Rayonier's claim it needed

to conduct a RIF for economic reasons was merely a pretext for age discrimination. He relies primarily on

two types of evidence. First, Beaver points to evidence designed to show that, despite the $50 million drop

in sales at the Jesup mill in 1996, economic conditions were not so bad that a RIF was necessary.

Specifically, Beaver points to the following:

i) overall sales from all Rayonier facilities were still $1.2 billion in 1996;

ii) Rayonier wrote off $78 million in 1996 for closing its Port Angeles mill and $98 million for

an accounting charge;

iii) Rayonier spent $150 million on new construction at its various facilities in 1996;

iv) Rayonier increased its repurchase of company stock from $16 million to $50 million;

v) Rayonier increased dividends in 1996 by 16% for the third straight year;

vi) several executives at the Jesup mill received large bonuses in 1996;

vii) the vast majority of supervisors at the Jesup mill received raises in 1996.

According to Beaver, this evidence shows that economic conditions were actually good for Rayonier in 1996

and that Rayonier, by focusing on the $50 million loss in sales, has misrepresented its financial condition in

order to show the RIF was economically induced. In support of his argument, Beaver cites Eskra v. Provident

Life & Acc. Ins. Co., 125 F.3d 1406 (11th Cir.1997). In that case, the employer terminated the plaintiff

because his office, according to the report of the employer's actuary, was unprofitable. We held that the

plaintiff's evidence showing that the employer's actuary had biased the report in favor of unprofitability was

sufficient to show the employer's reason was pretextual. See id. at 1412-13.

 We find the evidence cited by Beaver insufficient to support a fact-finding that the RIF was a pretext

for discrimination. Beaver's evidence concerning profitability at Rayonier as a whole, as opposed to the
6

profitability of the Jesup mill where the RIF was conducted, is irrelevant to the question of whether economic

conditions at the Jesup mill led Rayonier to conduct a RIF. The fact that Rayonier chose to give bonuses and

raises to various executives and supervisors at the Jesup mill does not mean the $50 million loss in sales

suffered at the Jesup mill did not induce Rayonier to explore cost-cutting measures at that mill which

ultimately resulted in the RIF there. Beaver's real beef seems to be that Rayonier chose to cut jobs to reduce

costs instead of cutting out bonuses and raises. However, the employer is free to choose whatever means it

wants, so long as it is not discriminatory, in responding to bad economic conditions. It is not our role to

second-guess Rayonier's decision to respond to a loss in sales at the mill by cutting its workforce. See Combs

v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) ("federal courts do not sit to second-guess the

business judgment of employers") cert. denied Combs v. Meadowcraft Co., --- U.S. ----, 118 S.Ct. 685, 139

L.Ed.2d 632 (1998). Finally, unlike the plaintiff in Eskra, Beaver does not have any evidence showing

Rayonier biased its data to show it had a $50 million loss in sales; there is no evidence to cast doubt on the

existence or size of the loss at the Jesup mill.

 Next, Beaver seeks to show the RIF was pretextual by pointing to evidence that around the time

Rayonier terminated the ten salaried employees in the RIF, it hired some younger employees. Specifically,

Beaver says Rayonier hired ten hourly employees in the maintenance department before the RIF and another

twenty shortly after the RIF. He argues that evidence was sufficient for a jury to infer the RIF was a pretext

to get rid of older workers. We disagree.

 In Watkins v. Sverdrup Technology, Inc., 153 F.3d 1308, 1315-16 (11th Cir.1998), we held that the

fact a company eliminates some positions in a RIF while simultaneously hiring younger workers in other

positions is not sufficient to show that the RIF was pretextual. A plaintiff must also show that the new

positions were similarly situated to those that were eliminated in the RIF. See id.; see also Furr v. Seagate

Tech., Inc., 82 F.3d 980, 986 (10th Cir.1996) ("[p]laintiffs' evidence of [employer's] post-RIF hirings fail[ed]

to show pretext because the people hired were not similarly situated to the [p]laintiffs."). In this case, Beaver
 2

Beaver also asserts that Rayonier did not have any oral or written guidelines concerning how to choose

the employees to eliminate in the RIF and that this fact establishes that the RIF was pretext. However, Beaver

is incorrect in asserting that there were no guidelines. Mike Burch, one of Rayonier's decision-makers in the

RIF, testified that all of the decision-makers in the RIF understood that the parameters of the RIF were to

reduce costs by reducing the number of supervisors, maintain or improve the level of the organization, and

do the above in a legal and ethical manner. To the extent that Beaver's argument rests on a complaint that

Rayonier's guidelines were not written down, we decline to adopt a rule that a plaintiff can establish pretext

merely by showing the employer did not place the reasons that factored into its termination decision in

writing. What matters is whether there is evidence that the employer took an impermissible factor, such as

age, into account in its decision-making process, not whether the reasons for its employment decisions are

reduced to writing. Here, Beaver has failed to show that the decision to conduct the RIF was a pretext for

age discrimination. 

7

did not show that the new positions for which Rayonier hired hourly employees in the maintenance

department were similarly situated to the positions eliminated in the RIF. All of the positions eliminated in

the RIF were supervisor positions occupied by salaried employees, while the newly hired employees filled

vacant hourly employee spots. Moreover, Beaver does not point to any evidence showing the newly hired

hourly employees (or any other hourly employees) were placed in supervisor positions doing the duties of

either his former position or any other supervisor position eliminated in the RIF.2

For those reasons, we reject Beaver's argument that he produced sufficient evidence to show

Rayonier's decision to conduct the RIF was a pretext to conceal intentional age discrimination.

2. Whether Rayonier Discriminated Against Beaver Because of His Age By Denying Him Vacant

Supervisor Positions Which Existed at the Time of the RIF

 Beaver's second line of argument is that he presented sufficient evidence for a jury to find Rayonier

intentionally discriminated against him because of his age in denying him vacant supervisor positions for

which he was qualified and had applied at the time of his termination in the RIF. We agree.

 The ADEA does not require employers to establish interdepartmental transfer programs during a RIF

or to "transfer or rehire laid-off workers in the protected age group as a matter of course." Jameson v. Arrow

Co., 75 F.3d 1528, 1533 (11th Cir.1996). However, "a discharged employee who applies for a job for which

[he] is qualified and which is available at time of [his] termination must be considered for that job along with

all other candidates, and cannot be denied the position based upon [his] age." Id. (emphasis added).
 3

Those seven positions were as follows: two Powerhouse Foreman positions, two Shift Production

Superintendent positions, an Instrument Planner (or Facilitator) position, and two Shift Quality Supervisor

positions. 

 4

Beaver also cites, as evidence of age-bias, Daniel's statement at a supervisor's meeting that one could tell

the age of the mill's workforce "by looking at all the bald heads out there." Absent any evidence, however,

that this innocuous statement was made in a context which made it derogatory, we find that the statement is

not probative of age-bias on Daniel's part. 

 5

Although we conclude that Daniel's comment, taken together with Beaver's other evidence, is relevant

to establishing a discriminatory motive in Rayonier's decision not to select Beaver for any of the vacant

supervisor positions, it does not affect our previous conclusion that Beaver failed to show that the RIF itself

was pretextual. Daniel's comment, standing alone, is insufficient to establish that Rayonier's decision to

conduct a RIF in response to the mill's loss in sales was merely a pretext for age discrimination. 

8

In this case, Beaver presented evidence that at the time of his termination in the RIF, there were seven

vacant supervisor positions at the Jesup mill.3

 Although Beaver, when he was told that his former position

was being eliminated in the RIF, specifically informed Rayonier he was willing to take "anything" that was

available, Rayonier chose to fill those seven positions with other employees, six of whom were younger than

Beaver. At the trial, Beaver and three of his co-workers at the mill testified that based on their familiarity

with Beaver's extensive experience throughout the mill, the duties of the available positions, and the

experience of the six younger employees who were selected for the vacant positions instead of him, Beaver

was more qualified than each of those employees.

In addition to the evidence of his relative qualifications, Beaver presented evidence that Royce

Daniel, the general manager of the Jesup mill and the ultimate decision-maker in personnel decisions at the

mill, including those concerning Beaver, had expressed a desire to attract "younger, engineer-type employees

or supervisors."4

 While Daniel's comment does not rise to the level of direct evidence of discrimination, and

would not be enough standing alone to show a discriminatory motive, a jury could infer from it some age-bias

on Daniel's part when that comment is coupled with the other evidence in this case.5

 See, e.g., Burrell v. Bd.

of Trustees of Ga. Military College, 125 F.3d 1390, 1393 (11th Cir.1997) (statements by a decision-maker

that are not direct evidence of discrimination may still be used as circumstantial evidence of a discriminatory

motive).
9

Rayonier offers several arguments in an attempt to rebut Beaver's evidence and persuade us it was

not sufficient for a jury to find age discrimination. We find none of them persuasive. First, Rayonier

attempts to distinguish Beaver from five of the seven employees it selected instead of Beaver to fill the vacant

supervisor positions. Specifically, Rayonier notes that although two of the seven employees were, like

Beaver, salaried employees whose former positions had been eliminated in the RIF, the other five (all of

whom were younger than Beaver) were hourly employees who were "set-up" into the vacant supervisor

positions. "Setting-up" refers to Rayonier's practice of placing an hourly employee into a supervisor position

normally occupied by a salaried employee. The hourly employee is paid a higher hourly wage while he is

"set-up" and does exclusively supervisor work instead of the hands-on work that he would otherwise do as

an hourly employee. In addition, the union which represents the mill's hourly workers does not represent a

"set-up" employee during the time he is in a supervisor position.

With regard to the five positions filled by "set-up" hourly employees, Rayonier takes the position that

Beaver cannot rely on the fact that younger, hourly employees filled those positions as a basis for showing

age discrimination. In support of its position, Rayonier points to our statement in Marshall v. Western Grain

Co., Inc., 838 F.2d 1165, 1170 (11th Cir.1988), that "because of their unique status in the workplace,

bargaining unit employees are never similarly situated with non-bargaining unit employees." Rayonier argues

that because the hourly employees are bargaining unit employees represented by unions and the salaried

employees such as Beaver are not, Beaver was not similarly situated to the hourly employees who were

"set-up" into the available salaried positions. We disagree. Because Rayonier's hourly employees are not

represented by the union after they are "set-up" into supervisor positions, the categorical distinction we drew

in Marshall between bargaining and non-bargaining unit employees does not distinguish the "set-up" hourly

employees in this case from Beaver. Accordingly, in the circumstances of this case, the fact that Rayonier

chose younger hourly employees for the vacant supervisor positions was evidence it discriminated against

Beaver because of his age.
10

Rayonier's second argument also focuses on the five supervisor positions that were filled by the

"set-up" hourly employees. Rayonier argues that because it chose not to eliminate any hourly employees'

positions in the RIF, it is not proper for Beaver to compare himself to the five hourly employees who were

chosen for the vacant positions. That argument is unpersuasive, because the vacant supervisor positions

Beaver sought were available at the time of the RIF independent of any other positions Rayonier chose to

eliminate or preserve. Rayonier fails to explain why the fact that it chose not to eliminate any positions

occupied by hourly employees in the RIF bars Beaver from comparing himself to the hourly employees

Rayonier selected to fill vacant supervisor positions not eliminated in the RIF, which Beaver wanted.

Third, Rayonier argues that at least with regard to the five vacant supervisor positions filled by the

"set-up" hourly employees, those hourly employees were chosen not because they were younger, but because

they were already working in the departments of the mill where the vacancies occurred. In contrast, Rayonier

says it would have had to transfer Beaver from the maintenance department, Beaver's department prior to his

termination, to one of the departments with a vacancy. Beaver, however, presented sufficient evidence for

a jury to find that this reason was pretextual by showing that in the past, Rayonier had not required an

employee to have worked in a particular department in order to be placed in a supervisor position in that

department. Specifically, an employee named Marty Weathers testified at trial that, on a prior occasion,

Rayonier had placed him in the supervisor position of Powerhouse Foreman and that he had done well in that

position even though he had never worked in the powerhouse and was transferred from the technical

department. Two of the vacant supervisor positions which were filled by younger hourly employees instead

of Beaver were Powerhouse Foreman positions. In addition, Beaver also presented evidence that, although

he was a supervisor in the maintenance department, he had performed work in the departments with the

vacant supervisor positions.

 Fourth, Rayonier argues that, consistent with its desire to cut costs at the mill, it chose other

employees instead of Beaver for the vacant supervisor positions because it could pay them less than Beaver.
 6

In addition to the arguments we have already discussed, Rayonier also seeks to raise the following

arguments on appeal: (1) It rebutted any inference of age discrimination concerning its selection of younger

hourly employees for the vacant supervisor positions by presenting testimony that "several of the hourly

employees" placed into the vacant supervisor positions were chosen because they, unlike Beaver, had been

"relief supervisors" in the past and had therefore actually performed the duties of those positions; (2)

Although one of the vacant supervisor positions was filled by a younger, salaried employee (named Bruce

Woodard) whose former position had been eliminated in the RIF, Beaver failed to present evidence rebutting

Rayonier's non-discriminatory reason that Woodard was selected because he had greater familiarity with the

mill's quality standards; (3) The fact that two supervisor positions which were available shortly before the

RIF were filled by individuals who were older than Beaver is relevant to whether Beaver presented sufficient

11

The problem with that argument is that when Beaver was informed his position was being eliminated in the

RIF, he told Rayonier he was willing to take "anything" that was available at the mill. A jury could find that

by expressing his unqualified desire to take any available position, Beaver indicated he was willing to take

any available job at Rayonier, regardless of its pay. Because Rayonier was aware that Beaver was willing

to accept any job, even if it paid less than his former position, a jury could rationally conclude that Rayonier's

proffered cost-savings reason for selecting younger workers for the vacant supervisor positions instead of

Beaver was pretextual.

 Finally, Rayonier argues that the ageist comment by Daniel is no more than a stray comment which

occurred several months before Beaver's termination. Citing Tidwell v. Carter Products, 135 F.3d 1422, 1427

(11th Cir.1998), Rayonier argues that stray ageist comments made several months before a plaintiff's

termination are insufficient to present a jury question on the issue of discriminatory intent. That argument

is unavailing for two reasons. First, Tidwell is distinguishable because the ageist comments in that case were

not made by the ultimate decision-maker in the plaintiff's termination. See id. Second, and more importantly,

we do not hold that Daniel's comment, taken alone, is enough to present a jury question on the issue of

discriminatory intent. Instead, we hold that Daniel's comment, taken in connection with the evidence that

Rayonier chose younger employees for six of the seven vacant supervisor positions, even though Beaver

expressed his willingness to take any of those positions and presented evidence that he was more qualified

than the younger employees, provided a sufficient basis for a jury to find that Rayonier intentionally

discriminated against Beaver because of his age.6
evidence of age discrimination; and (4) Although Beaver presented evidence that there were seven vacant

supervisor positions at the time of the RIF, some of those positions had previously been filled and therefore

were not actually vacant at the time of Beaver's termination in the RIF. Rayonier, however, failed to raise

these arguments in its motion for judgment as a matter of law before the district court. Accordingly, we will

not consider these arguments on appeal. See, e.g., American Civil Liberties Union v. Barnes, 168 F.3d 423,

435 (11th Cir.1999). 

 7

The $53,905 figures reflects a $5,000 deduction for income Beaver earned from other employment after

Rayonier terminated him. 

12

B. WHETHER THE DISTRICT COURT ERRED IN REFUSING TO AMEND THE JUDGMENT

 Rayonier argues the district court abused its discretion in refusing to amend the judgment to reflect

the fact that the jury award of $80,242 in backpay salary and benefits was not substantially supported by the

evidence. According to Rayonier, the evidence at trial supported an award of only $70,600.13. We disagree.

Beaver presented evidence showing he was entitled to $53,9057

 in backpay salary and $31,000 in

backpay benefits, for a total of $84,905. Thus, the jury's verdict of $80,242 was well within the range of the

evidence. Although there was also evidence supporting Rayonier's view that Beaver was entitled to

approximately $10,000 less in backpay benefits, it was within the province of the jury to resolve that factual

conflict in Beaver's favor. The district court did not abuse its discretion in declining to amend the judgment.

V. CONCLUSION

AFFIRMED.