[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 1 6

- 11183

________________________ D.C. Docket No. 1:12

- cv
- 01715

- VEH
JAMES R. KING,
Plaintiff

- Appellee ,

versus CVS HEALTH CORPORATION , a.k.a. CVS Pharmacy,
Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Alabama

________________________ ( November 22 , 2017)
Before WILSON and NEWSOM , Circuit Judge s , and WOOD , * District Judge.
PER CURIAM:

* Honorable Lisa Godbey Wood, United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 16-11183 Date Filed: 11/22/2017 Page: 1 of 32 CVS appeals the district court’s denial of its motion for judgment as a matter
of law. On appeal, CVS argue s that the jury’s finding that it willfully violated the Age Discrimination in Employment Act (ADEA) was against the great weight of
the evidence. As such, CVS argues that the district court improperly denied its motion for judgment as a matter of law. CVS raise s a host of additional issues, too:
I t argue s that the district court erred by refusing to admit certain evidence and by
fa iling to exclude other evidence, that the district court abused its discretion by granting the equitable remedies of reinstateme nt and back pay, that the district
court erred in its choice of jury instructions, and finally, that cumulative error in
the case merits a new trial. After careful review of the record and the parties’ briefs, and with the benefit of oral ar gument, 1 we find no reversible err or in the district court’s rulings

. It is worth noting that t he parties’ briefs and oral argument s revealed some disagreement between the standards used in this Circuit to gauge the admissibility of comparators in ADEA cases

. In this Circuit, in order t o make a comparison of the plaintiff’s treatment to another employee outside the protected class, the

1 Before this C ourt heard oral argument on the appeal, King filed a motion to strike arguments related to CVS’s proffered reason for terminating King

— that CVS had a reasonable, if mistaken, belief that King violated CVS policy and state law. King alleged that it would be improper for this Court to consider that reason in determining the appeal. This C ourt ordered that King’s motion to strike would be carried with the case. Having reviewed the material in question, we have determined that the material in no way alters our opinion. Resolution of that motion is not necessary to the disposition of the appeal. King’s motion is therefore dismissed as moot.

Case: 16-11183 Date Filed: 11/22/2017 Page: 2 of 33 plaintiff must show that the two employees are “similarly situated in all relevant respects

. ” Holifield v. Reno , 115 F.3d 1555 , 1562 (11th Cir. 1997). Yet this Circuit has employed two seemingly distinct standards to delineate how sim ilarly situated those employees’ conduct mus t be: whether that conduct need only be “ same or similar ,” or whether it must instead be “nearl y identic al

. ” Compare Maniccia v.
Brown , 171 F.3d 1364, 1368 (11th Cir. 1999) (“ We require that the quantity and quality of the comparator ’ s misconduct be nearly identical to prevent courts from
second

- guessing employers’ reasonable decisions and confusing apples with
oranges ”), with Holifield v. Reno , 115 F.3d 1555 , 1562 (11th Cir. 1997) (“ To make a comparison

. . . the plaintiff must show that he and the employees are similarly situated in all relevant respects”). Any re solution of that matter is a question for
another case. In applying either standard, the Court is convinced that King presented evidence of a n adequate comparator and that the district court did not abuse its discretion by admitting that evidence

. T he Court remains persuaded that sufficient evidence exists, as a legal matter, from which a reasonable jury could find that CVS Corporation terminated James King on the basis of his age. We therefore AFFIRM on all issues.

Case: 16-11183 Date Filed: 11/22/2017 Page: 3 of 3