PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-2518 _______________

D. C. Docket No. 95-30574-RV

J. R. RUDY WILLIAMS,

Plaintiff-Appellant,

versus

VITRO SERVICES CORPORATION; TRACOR

FLIGHT SYSTEMS, INC.; TRACOR, INC.,

Defendants-Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Florida

______________________________

(July 1, 1998)

Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit

Judges.
2

BIRCH, Circuit Judge:

In this employment discrimination action filed pursuant to the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq., J. R. Williams appeals the district court’s order granting

summary judgment in favor of Vitro Services Corporation (“Vitro”),

Tracor Flight Systems (“Flight Systems”), and Tracor, Inc. (“Tracor”).

For the reasons that follow, we conclude that the district court erred

in granting summary judgment in favor of Vitro with respect to

Williams’ claim of discriminatory discharge and in favor of Flight

Systems with respect to Williams’ failure-to-hire claim. We therefore

reverse as to both claims raised on appeal.

I. BACKGROUND

Vitro, Flight Systems, and Tracor are related companies that

function as defense contractors for the United States government.

 Williams began working for Vitro in 1961 as a mission support

coordinator. Williams worked in a variety of capacities within Vitro
3

over the course of the next twenty years. In 1982, after losing its

contract with the United States Air Force, Vitro terminated Williams

as part of a reduction in force (RIF). In 1984, however, Vitro rehired

Williams as an administrative manager; at the time Vitro rehired

Williams, he was approximately forty-nine years old.

In 1989, Williams became Manager of Administration of the

Corporate Office. In 1994, Vitro bid on a government project for the

United States Army that would have required the company to

relocate some of its personnel to Arizona. According to Vitro, had

Vitro successfully obtained this contract, Williams, at age sixty,

would have received a promotion in both rank and salary. Vitro did

not obtain the contract, however, and in 1995, pursuant to what Vitro

denominates a second RIF, Vitro offered Williams a severance

package. Williams did not accept the terms of the severance

package and Vitro terminated him in 1995.

At approximately the same time that Vitro terminated Williams,

two positions at Flight Systems became available. According to
4

Flight Systems, Williams notified Richard Cannon, the vice president

and general manager of Flight Systems, that he would be interested

in these positions if they were consolidated into one job, a

suggestion that Cannon apparently declined to follow. By the time

Williams formally applied for the Flight Systems’ positions, the

decisions regarding who to hire had already been made. Williams

contends that Flight Systems refused to consider him for either

position after learning that Williams did not intend to retire in the

foreseeable future. Williams further submits that Flight Systems

continued to search for candidates to fill the two vacant positions for

several weeks after Williams submitted his application, thereby

giving rise to an inference of intentional discrimination.

Williams filed suit against Vitro, Flight Systems, and Tracor

under both the ADEA and the Florida Civil Rights Act of 1992, Fla.

Stat. Ann. § 760.10 . The district court determined that Williams had

failed to establish a prima facie case of age discrimination based on

either direct or circumstantial evidence with respect to his
1

The district court also found that (1) Williams had not

properly served Tracor with a summons or complaint and, thus,

dismissed that defendant from the case and (2) Vitro and Flight

Systems could not be deemed a single employer for purposes of

analyzing the liability of each company for the alleged

discriminatory conduct of the other. Although Williams briefly

discusses what he contends to be a close affiliation between Vitro

and Flight Systems, he does not challenge explicitly either of

these determinations on appeal. 

5

termination; specifically, the court found that Williams had not shown

that he was qualified for any available position within Vitro at the

time of his termination. The court further noted that, even assuming

that Williams had presented a prima facie case with respect to Vitro,

he nonetheless had failed to rebut Vitro’s proffered legitimate, nondiscriminatory justification for his termination. The court also found

that although Williams had established a prima facie case of age

discrimination as to Flight Systems’ failure to hire him, he had failed

adequately to call into doubt with probative evidence Flight Systems’

stated reasons for its decision.1

 On appeal, Williams no longer

contends that he has set forth direct evidence of age discrimination.

He does submit, however, that the district court erred in concluding

that there is insufficient evidence in the record to support a jury
6

question regarding his circumstantial allegations of age

discrimination against both Vitro and Flight Systems.

II. DISCUSSION

We review de novo the district court's order granting summary

judgment. See Arrington v. Cobb County, 139 F.3d 865, 871 (11th

Cir. 1998). Summary judgment is appropriate where there is no

genuine issue of material fact. See Fed. R. Civ. P. 56(c). “Where

the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citation and

internal quotation omitted). On a motion for summary judgment, we

must review the record, and all its inferences, in the light most

favorable to the nonmoving party. United States v. Diebold, Inc.,

369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). 
7

In an employment discrimination case, “the plaintiff must

produce sufficient evidence to support an inference that the

defendant employer based its employment decision on an illegal

criterion.” Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500

(11th Cir. 1991) (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d

285, 290 (8th Cir. 1982)). At the summary judgment stage, our

inquiry is “whether an ordinary person could reasonably infer

discrimination if the facts presented remained unrebutted.” Id.

(quoting Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989)).

Once a plaintiff has established a prima facie case and has put on

sufficient evidence to allow a factfinder to disbelieve an employer’s

proffered explanation for its actions, that alone is enough to preclude

entry of judgment as a matter of law. Combs v. Plantation Patterns,

106 F.3d 1519, 1532 (11th Cir. 1997), cert. denied, U.S. , 118 S.

Ct. 685, 139 L. Ed. 2d 632 (1998).

This circuit has adopted a variation of the test articulated by the

Supreme Court for Title VII claims in McDonnell Douglas Corp. v.
2

It is undisputed that the appellant was within the protected age

group at the time of termination.

8

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for

cases arising under the ADEA. Mitchell v. Worldwide Underwriters

Ins. Co., 967 F.2d 565, 566 (11th Cir. 1992). In order to make out a

prima facie case for an ADEA violation, the plaintiff must show that

he (1) was a member of the protected age group, (2) was subject to

adverse employment action, (3) was qualified to do the job, and (4)

was replaced by a younger individual. See Benson v. Tocco, 113

F.3d 1203, 1207-08 (11th Cir 1997). These criteria are slightly

different in both an RIF case and where a position is eliminated in its

entirety; in these instances, the plaintiff establishes a prima facie

case by demonstrating (1) that he was in a protected age group and

was adversely affected by an employment decision2

, (2) that he was

qualified for his current position or to assume another position at the

time of discharge, and (3) evidence by which a fact finder

reasonably could conclude that the employer intended to
9

discriminate on the basis of age in reaching that decision. Id. at

1208.

A. Termination by Vitro

Williams submits that the district court erred in finding that he

had failed to demonstrate his qualification for a position at the time

of the second RIF and, consistent with this determination, dismissing

his claim against Vitro for failure to establish the second prong of his

prima facie case. Vitro responds that, even assuming for purposes

of this discussion that Williams properly established the requisite

elements of his prima facie case, he has failed to rebut the

legitimate, non-discriminatory reason proffered by Vitro to justify his

termination. 

We conclude, at the outset, that the district court erred in

dismissing Williams’ discriminatory discharge claim on the grounds

that he failed to show that he was qualified for a position that

became available at the time of his termination. As previously
10

noted, our case law expressly holds that, where a plaintiff contends

that his position has been consolidated or reassigned to other

employees, as has been alleged in this case, he may establish a

prima facie case by demonstrating that he was qualified for his

current position or to assume another position at the time of

discharge, see Benson, 113 F.3d at 1208; these elements are

plainly phrased in the disjunctive, and failure to show qualification for

both the current job and a second, vacant position is not fatal to the

plaintiff’s prima facie case.

Vitro, however, urges that we presume a lack of discriminatory

motive in this case based on the fact that the same actor was

involved in the decision to hire, promote, and terminate Williams. In

support of this proposition, Vitro points to the following facts: Richard

Manley, now the president of Vitro and the individual primarily

responsible for Williams’ termination, rehired Williams following his

first termination in a Vitro RIF; at the time that Manley brought

Williams back to Vitro, Williams was already within the protected age
3

The parties dispute the extent to which relocation to Arizona

as part of the new contract would have constituted a promotion for

Williams; it is undisputed, however, that Manley approved a

proposed project that anticipated Williams’ continued participation

and employment at Vitro.

11

classification under the ADEA. In 1989, Manley promoted Williams

and, several years later, approved a proposed bid on a defense

contract that, if successful, effectively would have resulted in

Williams’ continued employment in a new project.3

 The record

therefore indicates that the same individual who acted as the final

decisionmaker with respect to Williams’ termination also sought to

bring Williams back to Vitro after an earlier RIF, approved Williams’

promotion five years later, and implicitly approved his continued

employment with Vitro shortly before the second RIF transpired.

Vitro asks that we derive from this factual circumstance a

presumption that intentional discrimination did not motivate Manley’s

decision to terminate Williams.

This circuit has not squarely addressed the question of whether

an inference or presumption of non-discriminatory motive arises

when the individual responsible for hiring or promoting an employee
12

also participated in or made the ultimate decision to fire that

employee. Every other circuit to have reached this question has

determined that, where the facts indicate that the same individual

both hired and fired an employee, an inference may arise that the

employers’ stated justification for terminating the employee is not

pretextual. See, e.g., Proud v. Stone, 945 F.2d 796, 797 (4th Cir.

1991) (“[I]n cases where the hirer and firer are the same individual

and the termination of employment occurs within a relatively short

time span following the hiring, a strong inference exists that

discrimination was not a determining factor for the adverse action

taken by the employer.”).

The circuit courts have applied varying weights to the strength

or value of the inference that obtains when the hirer and firer are the

same actor. See, e.g., Bradley v. Harcourt, Brace and Co., 104 F.3d

267, 270-71 (9th Cir. 1996) (“[W]here the same actor is responsible

for both the hiring and the firing of a discrimination plaintiff, and both

actions occur within a short period of time, a strong inference arises
13

that there was no discriminatory motive.”); Brown v. CSC Logic, Inc.,

82 F.3d 651, 658 (5th Cir. 1996) (“This ‘same actor’ inference has

been accepted by several other circuit courts, and we now express

our approval.”); Evans v. Technologies Application & Service Co., 80

F.3d 954, 959 (4th Cir. 1996) (“[B]ecause Houseman is the same

person who hired Evans, there is a powerful inference that the

failure to promote her was not motivated by discriminatory animus.”)

(internal quotation and citation omitted); E.E.O.C. v. Our Lady of

Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (“If

Boettcher wished to discriminate against Braddy because of her

race, she could have refused to hire her in the first place, or she

could have discharged her because of her deficient qualifications.

Boettcher did neither. . . . The same hirer/firer inference has strong

presumptive value.”). But see Waldron v. SL Industries, Inc., 56

F.3d 491, 496 n.6 (3rd Cir. 1995) (“[W]here . . . the hirer and firer are

the same and the discharge occurred soon after the plaintiff was

hired, the defendant may of course argue to the factfinder that it
14

should not find discrimination. But this is simply evidence like any

other and should not be accorded any presumptive value.”).

Although Vitro has pointed to evidence to show that the same

individual responsible for hiring Williams after he already was in the

protected age group was also responsible for promoting him, for

attempting to prolong his stay with Vitro, and, ultimately, for

terminating him, we decline to accord to this “same actor” factual

circumstance a presumption that discrimination necessarily was

absent from the decision to terminate Williams. We nonetheless

believe that these facts may give rise to a permissible inference

that no discriminatory animus motivated Vitro’s actions. See

Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir.

1995) (“An individual who is willing to hire and promote a person

of a certain class is unlikely to fire them simply because they are

a member of that class. This general principle applies regardless

of whether the class is age, race, sex, or some other protected

classification.”). But within the burden-shifting framework that has
15

long been established in this circuit with regard to employment

discrimination cases, it is important to reiterate that this inference

is a permissible–not a mandatory--inference that a jury may make

in deciding whether intentional discrimination motivated the

employer’s conduct. We previously have explained that

a prima facie case plus evidence permitting

disbelief of the employer’s proffered reasons

equals the plaintiff’s entitlement to have the

factfinder decide the ultimate issue of

discrimination. . . . Of course, the law is that

the jury is not required to make the inference

of discrimination . . . upon rejection of the

employer’s proffered nondiscriminatory

reasons. . . . In performing [its] traditional

duties, the jury must measure the strength of

the permissible inference of discrimination

that can be drawn from the plaintiff’s prima

facie case along with the evidence that

discredits the employer’s proffered

explanations for its decision. Even if the jury

concludes that all the employer’s proffered

explanations are unworthy of belief, it may

still remain unpersuaded that discrimination

was the real reason for the employer’s

decision. That decision is entrusted to the

jury’s discretion, but to exercise that

discretion, the jury has to get the case.
4

It is worth restating that, in this circuit, “evidence of

pretext, when added to a prima facie case, is sufficient to create

a genuine issue of material fact that precludes summary judgment.”

Combs, 106 F.3d at 1531. It therefore would be inconsistent with

our precedent to require a plaintiff in “same actor” cases not only

to show pretext but, in addition, to present further evidence to

overcome a special inference created by the “same actor” evidence.

Such a rule would be contrary to our previous determinations that

a plaintiff need not prove discriminatory intent at the summary

judgment stage but, rather, must present evidence from which a jury

reasonably could infer that the defendant’s non-discriminatory

justification for its employment decision is pretextual.

16

Combs, 106 F.3d at 1531, 1537-38 (emphasis in original). Based

on our consistent precedent, as articulated in Combs, we

conclude that “same actor” evidence of the sort introduced in this

instance constitutes evidence that a jury may consider in deciding

the ultimate issue of intentional discrimination. Evidence that the

same actor both hired and fired the plaintiff, in some

circumstances, may help to convince a jury that the defendant’s

proffered legitimate reasons for its decision are worthy of belief;

it is the province of the jury rather than the court, however, to

determine whether the inference generated by “same actor”

evidence is strong enough to outweigh a plaintiff’s evidence of

pretext.4

 
17

Here, we conclude that Williams has presented evidence of

intentional discrimination sufficient to withstand summary

judgment. Viewing the facts in the light most favorable to

Williams, he has alleged that, prior to the second RIF at Vitro,

Manley informed Williams that “we have to come up with

something to get rid of these older people who have been around

for so long. We are about to have a RIF and we have go to get

some older people to retire so we can save the jobs for the

younger people.” Williams Aff. at ¶ 4. Williams has further

demonstrated that James Gillis, who conducted Williams’

termination interview, asked Williams to sign a document

releasing Vitro from any future claims of age discrimination.

According to Williams, Gillis had never presented this type of form

to any other Vitro employee during Williams’ tenure with the

company; moreover, Gillis testified that, to his knowledge, no

other Vitro employee had ever been given a release form of this

nature. See Gillis Dep. at 110-11. In addition, while discussing
18

Williams’ termination, Gillis told Williams that he “should have

seen it coming,” and inquired as to “what kind of story” Williams

would like to “put out.” Williams Dep. at 148. We conclude that

these facts, while not conclusive proof of intentional

discrimination, are sufficient evidence from which a jury

reasonably could infer that Vitro’s contention that Williams was

terminated solely pursuant to an RIF was a pretext for age

discrimination. Again, it is not our role to weigh this evidence or

to make credibility determinations with respect to the ultimate

question at issue in a discrimination case; rather, our sole

determination is that a finder of fact could have concluded, based

on these facts, that Williams’ termination was motivated by

discriminatory animus. See Cooper-Houston v. Southern Ry. Co.,

37 F.3d 603, 605 (11th Cir. 1994) (where district court found that

“there ‘was no evidence that the [employer’s] general attitudes

played a part in the decision [to terminate the plaintiff]’ . . . the

district court exceeded its proper role as a reviewing body
19

because a finder of fact could have concluded that [the

employer’s] termination of Cooper-Houston was motivated by

racial animus.”) (emphasis added). We therefore reverse the

district court as to Williams’ discriminatory discharge claim against

Vitro. 

B. Failure to Hire by Flight Systems

Williams also contends that the district court erred in

dismissing his claim against Flight Systems for its failure to hire

him after his second termination from Vitro. The district court

found that Williams had established a prima facie case of

discriminatory failure to hire but had failed to show that he was

better qualified than the individuals who were hired for the

relevant positions. The court thus concluded that Williams had

failed to rebut Flight Systems’ proffered justification for its decision

not to hire Williams. Flight Systems takes issue with the district

court’s determination that Williams properly established the
20

elements of his prima facie case. Flight Systems further urges

that Williams was unqualified for the positions that he sought and,

in any event, failed to timely apply for either job.

Approximately one day after Williams’ termination, James

Gillis, the vice-president of Vitro, advised Williams of two possible

job openings at Flight Systems. Williams met with a supervisor

from Flight Systems, Richard Cannon, and expressed his interest

in both positions. Williams specifically mentioned that he thought

that the two positions could be combined and that he could

perform the consolidated jobs; Cannon apparently was not

receptive to this suggestion. According to Williams, Cannon

asked Williams if he would be willing to perform one of the jobs

“for twelve to eighteen months,” Williams Dep. at 168. Williams

responded that he might be interested in such an arrangement,

but that he would not sign an agreement at that time limiting the

duration of his employment to twelve or eighteen months. See id.

The record reveals that Williams wrote Cannon two letters
21

expressing his interest in either of the openings at Flight Systems.

The first, dated January 19, 1995, stated, in relevant part:

I would like to be considered for the

open or anticipated to be open positions of

Manager of Administration and/or Contract

Administrator in Electronic Systems Division,

TFSI. I feel my directly related experience

and training in security, human resources,

general administration and procurement

fields give me unique qualifications to fulfill

the job requirements of those positions.

Cannon Dep., Exh. 3. The second letter, dated February 21,

1995, stated, in relevant part:

I want to confirm to you my interest in

the job openings you have in the Electronic

Systems Division and for that matter, jobs

which may be available in any other areas of

TFSI. . . . I have confidence that I am one of

only a few who have the experience and

other qualifications necessary to perform both

jobs. Obviously, TSFI would save

considerable operating costs by filling both

positions with one person. I would, of course,

be interested in either position if you don’t

see fit to combine the positions. (I’ve

attached my resume.)
5

It is worth noting, however, that Flight Systems’ potential

liability for discriminatory failure to hire in this case does not

attach by virtue of its relationship to Vitro. As noted earlier,

the district court found that Vitro and Flight Systems, during the

relevant time period, constituted separate legal entities, and that

finding remains undisturbed on appeal.

22

Williams Aff., Exh. 4. Cannon notified Williams in a letter dated

February 27, 1995, that the positions were no longer available.

According to Cannon’s testimony, Cannon was directed to

transfer Doug Wilson, a Flight Systems’ employee based in

Texas, into one of the positions; Cannon personally made the

decision to hire Margaret McLemore, an individual substantially

younger than Williams, to fill the other remaining job.

Having reviewed the record, we conclude that the district

court erred in granting summary judgment in favor of Flight

Systems with respect to Williams’ failure-to-hire claim.5

 As noted

by the district court, the record supports each element of Williams’

prima facie case of age discrimination: Williams has established

that he was within the protected age classification at the time he

applied for the jobs, that he was qualified for the positions, and
23

that he suffered an adverse job action. Even assuming that Flight

Systems’ contention that Williams was less qualified for the

positions than the chosen applicants properly constitutes a

legitimate, non-discriminatory reason for its decision not to hire

Williams, the record contains evidence from which a factfinder

reasonably could infer that this stated reason was a pretext for

age discrimination. Although Flight Systems now argues both that

Williams never formally applied for the positions and that, by the

time he did express interest in the jobs, the decisions regarding

whom to hire already had been made, Cannon’s deposition

contains several inconsistencies that cast doubt on the credibility

of these assertions. Cannon, for instance, expressly stated that

Williams was a candidate being considered for one of the two

positions, but subsequently suggested that Williams was never

interviewed because he hadn’t filled out an application. See

Cannon Dep. at 21, 25. Yet, as noted above, the record indicates

that Williams did apply for the jobs as early as January 19, 1995.
24

Moreover, the record contains a memorandum routed to Flight

Systems’ personnel stating the names of each applicant–including

Williams–and is dated February 2, 1995. See Cannon Dep., Exh.

7. Notwithstanding the fact that Williams arguably did apply for

the positions and was a candidate, Cannon testified that he never

discussed Williams’ qualifications for the jobs with anyone other

than Manley and Gillis, both of whom provided favorable

recommendations, nor did he ever review Williams’ personnel file.

See Cannon Dep. at 36. These inconsistencies, in combination

with Cannon’s implication that he might consider giving Williams

a job if he would agree to retire soon, constitute sufficient

evidence to call into question the veracity of Flight Systems’

contentions that Williams did not timely apply for the positions or

that the decision of whom to hire had already been made before

Williams expressed interest in either job. See Tidwell v. Carter

Products, 135 F.3d 1422, 1426 (11th Cir. 1998) (“If a plaintiff

provides a prima facie case plus evidence discrediting the
25

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

factfinder decide the ultimate issue of discrimination.”) (citation

omitted). We therefore conclude that summary judgment was not

appropriate with respect to Williams’ failure-to-hire claim against

Flight Systems.

III. CONCLUSION

Williams asks that we set aside the district court’s order

granting summary judgment in favor of Vitro and Flight Systems

in this employment discrimination action. We conclude that Vitro

demonstrated that the same actor at Vitro was primarily

responsible for hiring, promoting, and firing Williams; this “same

actor” evidence, however, constitutes evidence from which a

jury–not the court–is permitted to infer that Vitro terminated

Williams for non-discriminatory reasons. In this case, Williams

has presented sufficient evidence of intentional discrimination to

survive summary judgment. We therefore reverse the district
26

court as to Williams’ discriminatory discharge claim. We also

conclude that Williams has presented sufficient evidence from

which a factfinder reasonably could infer that Flight Systems’

failure to hire him was motivated by intentional discriminatory

animus. We therefore reverse the district court as to Williams’

failure-to-hire claim against Flight Systems.

REVERSED and REMANDED for further proceedings

consistent with this opinion.