*

Honorable William C. O’Kelley, Senior U.S. District

Judge for the Northern District of Georgia, sitting by

designation.

1

 PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 97-2070

________________________

D.C. Docket No. 94-218-CIV-T-17C

JERRY E. TIDWELL,

Plaintiff-AppelleeCross-Appellant,

 versus

CARTER PRODUCTS, 

 Defendant-Appellant-

 Cross-Appellee, 

______________________________________

 Appeals from the United States District Court

for the Middle District of Florida

______________________________________

(February 26, 1998)

Before ANDERSON and CARNES, Circuit Judges, and O’KELLEY,*

 Senior

District Judge.

O’KELLEY, Senior District Judge:

Carter Products appeals from a judgment entered against it

pursuant to a jury verdict in favor of Jerry Tidwell in this age

discrimination case under the Age Discrimination and Employment

Act, 29 U.S.C. § 621, et seq. (the ADEA). Carter challenges the

district court’s denial of its motion for judgment as a matter
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of law on Tidwell’s claim that his termination by Carter

constituted age discrimination as well as the district court’s

award of equitable relief in the form of front pay to Tidwell.

In his cross-appeal, Tidwell challenges the court’s grant of

judgment as a matter of law to Carter on the issue of

willfulness. The dispositive issue in this appeal is whether

Tidwell produced adequate evidence to allow a reasonable

factfinder to disbelieve Carter’s proffered nondiscriminatory

reason for terminating Tidwell. We conclude that he did not and

that Carter was entitled to judgment as a matter of law for that

reason.

Facts

Carter Products manufactures and sells health and beauty

care products. Tidwell began his employment with Carter as a

district sales manager in 1972. He later served as Territory

Representative for Carter’s central Florida region, working out

of Tampa, until his April 23, 1993 termination at the age of

fifty. 

Tidwell alleges that he was terminated because of his age.

Carter contends that Tidwell’s position was eliminated as part

of a nationwide reduction-in-force (RIF). Carter eliminated

twelve positions, from an original force of 58. While four of

the original 48 sales employees over 40 were discharged, 19 were

retained. 

During its reorganization, key accounts, including many of

Tidwell’s, were transferred to regional and divisional managers.
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Carter also developed a new sales philosophy, beginning to

outsource to independent contractors. The number of sales

territories were reduced in order to reduce costs, and it was

determined that Florida could be served by a single territory

manager. At that time there were two territory managers –

Tidwell in Tampa (age 50) and James Booth in Miami (age 26).

Carter determined that it would be best served by a Miami

territory, contending that Miami had more direct accounts and

more independent stores requiring individual attention. Carter

contends that Tidwell’s performance had nothing to do with this

decision. The Tampa territory manager position was therefore

eliminated, its accounts to be absorbed by other workers.

Similar decisions were made throughout the country, with no

apparent pattern of retention according to age (several older

employees were retained while their younger counterparts were

eliminated). Carter explained its methodology used in the

selection process: If there was only one sales representative in

the area to be eliminated, that person would be released; if

there were more than one representative, their relative

performances would be compared. Carter characterized Tidwell’s

situation as falling into the first category.

Procedural History

The EEOC issued a “no reasonable cause” determination to

Tidwell’s charge of discrimination. The EEOC found no cause to

believe Carter had violated any statutes in terminating Tidwell.

“The evidence obtained did not support [Tidwell’s] allegation of
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unlawful employment discrimination.” DX 20. The EEOC explained

in a memorandum that plaintiff’s low rating in his 1992

evaluation “signifies that [Tidwell] was performing below the

reasonable expectations of [Carter].” It reasoned that

plaintiff’s performance “was a factor along with [Carter’s]

other reasons to terminate [Tidwell’s] employment.” DX 20.

 Tidwell then filed an action in the District Court for the

Middle District of Florida, claiming he was discharged because

of his age in violation of the ADEA. Before the jury, Tidwell

attempted to prove his claim under a disparate treatment theory,

which requires proof of intentional age discrimination. Tidwell

offered several indications of age discrimination: (1) his 1992

performance evaluation; (2) Carter’s retention of Booth and the

Miami territory; (3) inconsistent reasons given for his

termination. 

The trial court denied Carter’s motions for judgment as a

matter of law at the close of Tidwell’s case. Carter then

offered its nondiscriminatory reason, the RIF, for Tidwell’s

termination. The court denied Carter’s motion for judgment as a

matter of law at the close of all the evidence. The jury

returned a verdict for Tidwell and awarded $60,000 in lost wages

and benefits. The amount was doubled as liquidated damages

because the jury found the discrimination to be a willful

violation of the ADEA. The court reserved entering judgment

until it concluded a supplemental hearing regarding valuation

and certain evidence of Tidwell’s side business which he had
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concealed during discovery. The court found that Tidwell had

indeed lied about his side business but rejected Carter’s

unclean hands defense to preclude a front pay award. Instead,

the court ordered a set-off against the front pay award in the

amount of Carter’s expenses associated with the additional

discovery caused by Tidwell’s false testimony. The court

awarded front pay for the period from the jury verdict until

Tidwell’s 62nd birthday – more than eight years. Upon Carter’s

motions, the Court permitted the jury’s verdict on liability to

stand and refused to reconsider its ruling on front pay. The

Court did, however, overturn the jury finding as to willfulness.

Standard of Review

A district court’s denial of a defendant’s motion for

judgment as a matter of law is reviewed de novo, entailing the

application of the same standards used by the district court.

Dade County v. Alvarez, 124 F.3d 1380, 1383 (11 th Cir. 1997).

Those standards require the consideration of “whether the

evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986). All evidence and

inferences are considered in a light most favorable to the

nonmoving party. Carter v. City of Miami , 870 F.2d 578, 581

(11th Cir. 1989). 

If the facts and inferences point overwhemingly in favor of

one party, such that reasonable people could not arrive at

a contrary verdict, then the motion was properly granted.

Conversely, if there is substantial evidence opposed to the
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motion such that reasonable people, in the exercise of

impartial judgment, might reach differing conclusions, then

such a motion was due to be denied and the case was

properly submitted to the jury.

Id. (footnotes omitted). 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.” Id.

Accordingly, we must determine whether reasonable jurors could

have concluded as this jury did based on the presented evidence.

Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir. 1993).

Discussion

Carter contends that it is entitled to judgment as a matter

of law because (1) Tidwell presented no evidence, statistical or

otherwise, of age bias or discrimination and (2) Tidwell failed

to demonstrate that Carter’s articulated reason for its decision

to include him in the RIF was pretextual. Tidwell disagrees,

arguing that judgment as a matter of law is inappropriate

because he introduced sufficient evidence to permit the jury to

disbelieve Carter’s proffered explanation for his dismissal. 

To create a jury question in a discrimination case based on

circumstantial evidence, a plaintiff must establish a prima

facie case of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). A prima facie case effectively

creates a presumption of unlawful discrimination by the

employer: “If the trier of fact believes the plaintiff’s

evidence, and if the employer is silent in the face of the

presumption, the court must enter judgment for the plaintiff
1

 Our task is not to revisit whether the plaintiff

below successfully established a prima facie case of

discrimination. “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. See U.S. Postal Serv. v.

Aikens, 460 U.S. 711, 714-15 (1983) and Combs v. Plantation

Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).

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because no issue of fact remains in the case.” Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)(footnote

omitted). Tidwell established a prima facie case by proving

that he was 50 years old, had worked for Carter for 21 years,

was terminated, and that his accounts were assumed by a 26 year

old with only one year of experience with the company.1 

The establishment of a prima facie case shifts the burden

to the employer to produce legitimate, nondiscriminatory reasons

for the allegedly discriminatory employment action. Id. at 254.

To satisfy this burden, the employer “need only produce

admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision had not been

motivated by discriminatory animus.” Id. at 257. If the

employer successfully produces a nondiscriminatory reason for

its action, the presumption of discrimination disappears. Id.

at 255. The plaintiff then has the opportunity to show the

employer’s proffered reason to be pretextual. Id. at 256.

Once an employer offers a legitimate, nondiscriminatory

reason for its action, a plaintiff must show that “there is

sufficient evidence to demonstrate the existence of a genuine
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issue of fact as to the truth of each of the employer’s

proffered reasons for its challenged actions” in order to

survive judgment as a matter of law. Combs v. Plantation

Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997). If a plaintiff

provides a prima facie case plus evidence discrediting the

employer’s proffered reasons, the plaintiff is entitled to have

the factfinder decide the ultimate issue of discrimination. Id.

at 1531.

The task of this court is to consider the entire record in

the light most favorable to Tidwell to determine whether there

was sufficient evidence for Tidwell to withstand Carter’s

motions for judgment as a matter of law. In order to affirm the

district court’s denial of judgment to Carter as a matter of

law, we must find that Tidwell has cast sufficient doubt on

Carter’s proffered legitimate, nondiscriminatory reasons to

permit a reasonable factfinder to conclude that Carter’s

proffered reasons “were not what actually motivated its

conduct,” Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605

(11th Cir. 1994).

Carter proffered its RIF as a legitimate, nondiscriminatory

reason for terminating Tidwell, eliminating the presumption of

discrimination that attached to Tidwell’s prima facie case. The

court will consider the record evidence to determine whether it

would permit a reasonable factfinder to reject Carter’s

explanation, allowing the case to be submitted to the jury.
2

Furshman was also eliminated as part of Carter’s RIF.

9

I. 1992 Performance Evaluation

Tidwell’s evaluations show that he met Carter’s

expectations in 1990 and 1991. During his 1992 evaluation, his

supervisor, Sindee Furshman, ranked him below expectations.

Tidwell complained that the evaluation was unfair. He testified

that he asked Furshman several times whether he could get a good

evaluation. The first two times she responded that she did not

know. “The third time I asked her, I said, ‘Sindee, if I do my

job completely perfect, can I get a good evaluation?’ And she

went like that to me (shaking head) and that was it.” Rec. 3-

130. 

Carter contends that Furshman’s response was a stray

remark. This incident occurred several months before his

termination, an event with which Furshman had no involvement. 2

Additionally, Furshman’s response in no way suggested that

Tidwell’s age was the reason for his termination. This instance

does not provide the needed “more than a mere scintilla of

evidence” to survive a motion for judgment as a matter of law.

It does not present a substantial conflict in evidence as to

Carter’s purported reason for terminating Tidwell, the RIF, as

to support a jury question.

II. Retention of Booth and the Miami Territory

Carter presented evidence at trial to demonstrate that the

RIF was age neutral, belying any intent to discriminate. Among

other things, Carter’s expert showed that the average age of the
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sales force actually increased slightly after the RIF. Carter

argues that its elimination of Tidwell’s territory was not a

pretext for age discrimination, as is clear because the

territory was eliminated and has not been replaced. Tidwell

improperly questions Carter’s methodology and process in the

RIF. Tidwell also focuses on the difference in age between

himself and Booth and questions the wisdom of the choice to

retain Booth. However, while Booth absorbed some of Tidwell’s

accounts, he was not hired to replace Tidwell. Tidwell also

points out that he was never offered a transfer to Miami. This

contention is superfluous, since no other workers were offered

transfers and Tidwell himself never suggested the idea. See

Zaben v. Air Products & Chem., Inc., 129 F.3d 1453, 1459 (11 th

Cir. 1997) (employee’s contention that he should have been

allowed to transfer did not present sufficient evidence of

pretext to create a jury question when no other workers were

permitted to transfer either). All of these contentions by

Tidwell are disagreements about the wisdom of Carter’s decision

to retain Booth and the Miami territory, rather than disbelief

in the RIF and its application to Tidwell. “[A] plaintiff may

not establish that an employer’s proffered reason is pretextual

merely by questioning the wisdom of the employer’s reason, at

least not where, as here, the reason is one that might motivate

a reasonable employer.” Combs, 106 F.3d at 1543.

III. “Inconsistent” Remarks
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Tidwell maintains that certain alleged inconsistencies as

to the reason given for Tidwell’s termination allow an inference

of pretext. Carter maintains that the reason for its decision

was based on its reorganization and an evaluation of its

territorial needs. Tidwell points to several instances to show

Carter’s inconsistency. 

A few days before his termination, Tidwell was asked to

meet with a supervisor in Atlanta, Tim Cleary, and the head of

Carter’s personnel department, Denise Duca. At this time

Tidwell was told that he had done a great job but that his

position was being terminated due to the realignment of

territory. When Tidwell asked Cleary who was going to take over

the Tampa market, Cleary responded that he did not know.

Kenneth Geissler, Carter’s vice-president of field sales,

wrote a memo regarding the positions which he anticipated would

be affected by the territory realignments. The memo notes two

criteria: (1) whether they are in a market with other Carter

personnel and, (2) if so, how they were selected to be

terminated verses others in their marketplace. As to Tidwell,

the memo notes: “Tampa. Total volume $900,000. Only 7% of

volume done in food. Five accounts make up 80% of business.

Performance issue. Accounts would be covered by telemarketing

or by J. Booth, Angel Martinez.” DX 7. 

Tidwell placed great importance on the EEOC “no cause”

determination which noted that performance was a factor along

with Carter’s other reasons for terminating Tidwell. Carter
12

argues that the EEOC “no cause” determination did not reflect

any inconsistent statements made by Carter but simply reflected

a conclusion made by the EEOC after reviewing Tidwell’s

performance evaluations.

Although the identification of inconsistencies in an

employer’s testimony can be evidence of pretext, see Bechtel

Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir. 1995),

and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.

1994), the examples in this case do not present such a

situation. At most, the jury could find that performance was an

additional, but undisclosed, reason for the decision; the

existence of a possible additional non-discriminatory basis for

Tidwell’s termination does not, however, prove pretext. See

Zaben, 129 F.3d at 1458-59 (“Although the company gave differing

explanations for the selection of employees to be discharged,

saying on the one hand that seniority played no role in the

process and that only an employee’s performance was considered

while, on the other hand, asserting that [the employee] was

discharged because he had the least seniority, its reasons are

not ... necessarily inconsistent.”).

Conclusion

Tidwell failed to produce evidence adequate to permit a

reasonable factfinder to disbelieve Carter’s proffered

nondiscriminatory explanation that it terminated Tidwell as a

part of its reduction-in-force. Therefore, Carter was entitled
13

to judgment as a matter of law, and the district court should

not have permitted the case to go to the jury.

Accordingly, we REVERSE the entry of judgment in favor of

Tidwell, and we REMAND the case for entry of judgment in favor

of Carter.