IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 96-9004

D.C. Docket No. 5:95-CV-112-HL ARIC EVANS, Plaintiff-Appellant,

versus McCLAIN OF GEORGIA, INC. McCLAIN INDUSTRIES, INC., Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia

(December 18, 1997)

Before EDMONDSON and DUBINA , Circuit Judges, and LIMBAUGH*, Senior District Judge.

*Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern District of Missouri, sitting by designation2 PER CURIAM: Plaintiff-Appellant Aric Evans (“Appellant ”) appeals from the district court’s grant of summary judgment on his claims of race discrimination unde r Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e etseq. and 42 U.S.C. § 1981 (“§ 1981") and for overtime compensati on under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. For the reasons set forth, we reverse and remand. Facts and Procedural Background Defendants-Appellees McClain of Georgi a, Inc. and McClain Industries, Inc. (collectively “Appellees”) own and operate anindustrial plant in Macon, Georgia, and fabricate there large steel tras h bins and compactors. Prior to his discharge, Appellant had worked at Appellees’ Macon plant for approximately eight years. In July of 1994, the plant manager, Ke n Graham, resigned. He was replaced on a temporary basis by the assistant plant mana ger, Al Buckalew. There appears to be no dispute that Appellant, in assisti ng Buckalew, was second in command. He contends that he was running the plant. On October 3, 1994, Kenneth McClain, ch airman of the board and president of McClain Industries, Inc., named Ken Cole as the new plant manager. Buckalew remained as an unofficial assistant plan t manager and Appellant was, purportedly, next in line.3 During this time there was an incidentinvolving one of the leadmen at the plant, Tim Hall. Appellant c ontends that when Buckalew told Hall that Appellant was next in line to be the plant manager, Hall stormed out of the plant saying that he would not work for a “nigger.” McClain, who wa s upset by the prospect of losing Hall, sent another employee to find him and, upon his return, allegedly promised Hall that he would be trained as the next plant manage r at Appellees’ Texas plant. After this incident, Appellant claims Hall was pl aced over him in the plant’s managerial hierarchy. Cole proved to be anincompetent manager and was terminated on November 22, 1994. He was replaced by Neal Flow ers, a manager from one of Appellees’ Oklahoma plants. Appellees claim Flowers was brought in to assist in the plant’s conversion to a new product line. Contemporaneous with all of these ev ents was a campaign to organize a union at the plant. Whether or not Appellant was a management level employee, he was perceived by everyone as an integral part of the union’s effort. In fact, Appellees’ counsel, Thomas H. Williams, met with Appe llant and informed him that he was not to engage in any further union activity b ecause he was an assistant plant manager. Appellant denied his management status, noting that he was employed as an hourly
wage earner.4 Shortly thereafter, Appellant became a salaried employee. Although he admits being charged with supervisory responsibility, he contends that he was still treated as an hourly employee. To support his position, Appellant claims that he was not included in the plant’s management meeti ngs, did not make work assignments, and still had to report at 6:00 am with the hourlyemployees. Appellant maintains that he was only given a salary to remove him from the bargaining unit in an attempt to thwart the union's organization effort. On February 22, 1995, the day before the union election, McClain asked for Appellant’s keys, told him that he wa s fired, and even accused Appellant of threatening to shoot someone at the plan t. Appellees now contend, however, that Appellant was not actually fired until Fe bruary 24, 1995, the day after the union election. Appellees claim that McClain fired Appellant because he had become a disruptive force in the plant and was inten tionally creating racial tensions among the lower level employees. They further c ontend that Appellant was negligent in performing his duties and had threatened certain white employees. Appellant claims that after the incident with Tim Hall, McCl ain began to harass him in an attempt to force him to resign. He explains that McClain continually changed his job duties and redu ced his responsibilities. He insists that he was denied5 promotions and ultimately term inated because of his race. He also maintains that he was wrongfully denied overtime compensation in violation of the FLSA. The district court granted summary j udgment against Appellant on both claims. Evans v. McClain of Georgia, Inc ., 934 F.Supp. 1383 (M.D. Ga. 1996). In concluding that Appellant could not establish a prima faciecase of discriminatory failure to promote, the district court completely discounted the probative value of the incident involving Tim Hall. The court stated: Whether or not Tim Hall made the racially offensive statement attributed to him, nothing in the record suggests that Hall received a preferentia l promotion or that Hall was placed in a position of greater responsibility or prestige than Plaintiff enjoyed. While the record fails to describe the nature of Hall’s position or the scope of his authority, it does not suggest that he was in a position above the Plaintiff, but rather shows that Plaintiff and Hall each had responsibility for a separate pha se of the plant’s operations, and were assistant managers of approximately equal status.

Evans , 934 F.Supp. at 1388. Although the district court concluded that Appellant could establish a prima facie case of discriminatory discharge, it held that he made no showing of pretext to overcome Appellees’ legitimate, non-discri minatory reasons for his termination. Finally, the district court concluded thatAppellant was ine ligible for overtime compensation under the FLSA because he wa s working in an executive capacity and6 was a salaried employee. Appellant raises four point s on appeal: 1) the districtcourt erred in analyzing his discrimination claims under the standard announced in McDonnell Douglas v.
Green , 411 U.S. 792 (1973), because he presente d direct evidence of discrimination; 2) the district court erred in conclu ding that his circumstantial evidence was insufficient as a matter of law on the issues of failure to promote and discriminatory discharge; 3) the district court erred inconcluding that no reasonable trier of fact could conclude that he had established failure to promote and discriminatory discharge in light of the subsequent decision of the National Labor Relations Board (“NLRB”) in a related case; and 4) the district court erred in concluding that he was exempt from the overtime requirements of the FLSA.
Standard of Review This Court reviews de novo a district court’s grant of summary judgment, applying the same legal standards that bound th e district court, and viewing all facts and any reasonable inferences therefrom in the light most favorable to the non-moving party. Hale v. Tallapoosa County , 50 F.3d 1579, 1581 (11th Cir. 1995); McGuire Oil Co. v. Mapco, Inc. , 958 F.2d 1552, 1557 (11th Cir. 1992). Summary judgment is appropriate only when “there is no genuine i ssue of material factand . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).7 Direct Evidence “When there is direct evidence that di scrimination was a motivating factor in the challenged employment decision, the appr opriate analysis is different from that employed in a case where only ci rcumstantial evidence is ava ilable.” Trotter v. Board of Trustees of University of Alabama , 91 F.3d 1449, 1453 (11th Cir. 1996); Bell v. Birmingham Linen Service , 715 F.2d 1552, 1556 (11th Cir.), cert. denied , 467 U.S. 1204 (1984). The basis for the analysis is that once a plaintiff produces direct evidence of a discriminatory motive, “the ultimate issue of discrimination is proved.” Bell , 715 F.2d at 1556. As such, “the defendant may avoid a finding of liability only by proving by a preponderance of the eviden ce that it would have made the same decision even if it had not taken the [ illegitimate criterion] into account.” Price Waterhouse v. Hopkins , 490 U.S. 228, 258 (1989). Appellant argues that McClain’s statem ents, conduct, and attitudes are direct evidence of his discrimi natory motive. See EEOC v. Alton Packaging Corp. , 901 F.2d 920 (11th Cir. 1990) (general racially discriminatory remarks constitute direct evidence of decisionmakers’ failure to pr omote black employees for discriminatory reasons). At his deposition, McClain te stified that Appellant intimidated white employees by his “strut.” He further tes tified that Appellant, “a very large, very strong, very muscular black man,” was attempting to intimidate “three smaller or1 Implicit in this finding is our conclusion th at these comments are narrowly tailored to a specific event and, therefore, are distinguishable from the comments made in Alton Packaging . See Burrell , 125 F.3d at 1393, n.7. 8 overweight white men.” These statements and others in Appell ees’ brief, however inappropriate they may be, are not direct eviden ce of a discriminatory motive with respect to Appellant’s claims of failure to promote or discriminatory discharge. See Burrell v. Board of Trustees of Georgia Military College , 125 F.3d 1390, 1393 (11th Cir. 1997)(“Direct evidence is evidence, which if believed, prove s [the] existence of fact in issue without inference or presumption.”)(internal quota tion omitted). At best, these statements merely suggest a discriminatory mo tive which, by definition, makes them circumstantial evidence. 1 Id. at 1393-94. Similarly, the incident involving Tim Hall is not direct evidence of a discriminatory motive with respect to Appellant’s claims of failure to promote or discriminatory discharge. As Hall was not a decisionmaker with respect to either of these employment decisions, his discrimina tory comment cannot satisfy Appellant’s burden in this regard. See Price Waterhouse , 490 U.S. at 277 (O’Connor, J., concurring)(“Thus, stray remarks in the workplace . . . cannot justify requiring the employer to prove that its hiring or prom otion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers . . . .”); Trotter , 91 F.3d 1453-549 (same). Moreover, assuming for the sake of argument that Hall’s outburst resulted in his promotion and/or Appellant’s demotion, there is no evidence which directly proves that McClain acted with a discri minatory motive. Price Waterhouse , 490 U.S. at 277 (O’Connor, J., concurring)(“What is re quired is . . . direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.”)(emphasis added). Appellant further argues that he pres ented undisputed evidence that McClain would talk to white employees but ignore black employees, that he laid off black employees with more experi ence than comparable white employees, that he promoted white employees with less seniority than comparable black employees and that he would give white employees pr ivileges, such as loans, that were not given to black employees. Additionally, Appellant contends that one of the local temporary agencies indicated that it would not send black appli cants to the plant because McClain did not want black employees in office positions. The district court correctly dismissed this evidence as “not significantly probative” because it was based on gossi p, common knowledge, and the hearsay statement of an unidentified representative. There is no indication that any of this evidence can be reduced to admi ssible evidence at trial. See Pritchard v. Southern Co. Services , 92 F.3d 1130, 1135 (11th Cir.)(inadmissi ble hearsay cannot defeat a motion10 for summary judgment when it is not reducible to admissible form at trial), amended

onreh’g , 102 F.3d 1118 (11th Cir. 1996). Finally, Appellant argues that in the history of Appellees’ operations (650 employees in eight plants), there have onl y been three black supervisory employees. Appellees argue, however, that Appellanthas provided no other information ( i.e. , whether any black employees ever applie d for supervisory positions) to make this otherwise anecdotal information significant. See e.g. , Howard v. BP Oil Co., Inc. , 32 F.3d 520, 524 (11th Cir. 1994)(“ . . . for this fact to be relevant, plaintiff would have had to present evidence as to how many black s applied and were rejected and evidence of the success rate of equallyqualified white applicants.”). We agree. Statistics without an analytic foundation are “virtu ally meaningless.” Brown v. American Honda Motor Co. , 939 F.2d 946, 952-53 (11th Cir.), cert. denied , 502 U.S. 1058 (1992). Accordingly, the district court appropriately analyzed Appellant’s discrimination claims under the McDonnell Douglas standard. The McDonnell Douglas Standard Under the McDonnell Douglas standard, the plainti ff has the initial burden of establishing a prima faciecase of discrimination. McDonnell Douglas , 411 U.S. at 802; Texas Department of Community Affairs v. Burdine , 450 U.S. 248, 253-54 &11 n.6; Combs v. Plantation Patterns , 106 F.3d 1519, 1527-28 (11th Cir. 1997), petition for cert. filed , 66 U.S.L.W. 3171 (U.S. July 28, 1997)(No. 97-361). If the plaintiff successfully establishes a prima faciecase, a legal presumption of unlawful discrimination arises and the burden shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas , 411 U.S. at 802; Burdine , 450 U.S. at 254; Combs , 106 F.3d at 1528. “To satisfy that burden of production, ‘[t]he defendant neednot persuade the court that it was actually motivated by the pr offered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’” Combs , 106 F.3d at 1528 ( quoting Burdine , 450 U.S. at 254-55). If the employer meets this burden of pr oduction, “[t]he presumption, having fulfilled its role of forcing the defendant to come forwar d with some response, simply drops out of the picture.” St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 510-11 (1993); see also Burdine , 450 U.S. at 255 & n.10. Still, the elements of the prima facie case remain. Combs , 106 F.3d at 1528. Moreove r, when accompanied by evidence of pretext or disbelief of the defendant’s proffered explanation, in some instances, they may permit a finding for the plaintiff. Id. at 1529; see also Hicks , 509 U.S. at 511. The plaintiff employee, howev er, always retains the ultimate burden of12 proving that he was the victim of intentional discrimination. Hicks , 509 U.S. at 508; Burdine , 450 U.S. at 253.
Discussion
A. Failure to Promote
A prima faciecase of discriminatory failure to promote requires the plaintiff to show that he is a member of a protected class; he was qua lified for and applied for the promotion; he was rejected; and other e qually or less qualified employees who were not members of the protected class were promoted. Combs , 106 F.3d at 1539 n.11. The district court concluded thatAppellant could not establish a prima facie case of discriminatory failure to promote because the record di d not indicate that he was actually denied a promotion. Evans , 934 F.Supp. at 1388 (“The record shows that Plaintiff was given a salary and the title of assistant mana ger or stock manager, and, despite his argument that the promotion was in name only, the Plaintiff’s own deposition states that in the shakeup after the firing of Ken Cole , Plaintiff acquired new managerial responsibilities be yond those of his previous job.”). The district court also concluded that nothing in the record suggested that Tim Hall “received a preferential promotion or that [he] was placed in a position of greater responsibility or prestige than [Appellant] enjoyed.” Id. Accordingly, the district court granted summary judgment in favor of Appellees.13 Our review of the record, however, re veals additional facts concerning the Appellant’s lack of promotion. Three of Appellant’s nephews, who also worked at the plant, testified that McClain held a m eeting with certain employees shortly after the incident involving Hall occurred. All three testified that McClain announced that he was putting Hall over Appellant. They further testifie d that McClain proceeded to tell an off-color joke in which he compared certain employees at the plant to various body parts, concluding with Appellantbeing compared to an anus. Additionally, Appellant testified that in the months following the incident involving Hall, his job assignments changed al most weekly. He contends that he was frequently given demeaning and menial tasks. See e.g. , McCabe v. Sharrett , 12 F.3d 1558, 1564 (11th Cir.1994)(employee who wa s given fewer responsibilities and was made to perform more menial task s suffered adverse employment action). Finally, Appellant maintains that he wa s only given a salaryto remove him from the bargaining unit in an attempt to thwart the union’s organization effort. The evidence on this point is at best inconclu sive. Certainly the discrepancies between Appellants assignments and those of the other managers, as well as the delayed manner in which he became a salaried employee, could support such a finding. Accordingly, we conclude that Appellant met his preliminary burden of establishing a prima faciecase of discriminatory failure to promote. As this was the2 Although the district court chose not to addr ess the issue of whether Appellant’s Complaint properly asserted a claim of discriminatory failure to promote, we will c onsider it because it was properly raised by the parties and it involves a pure question of law. See Narey v. Dean , 32 F.3d 1521, 1526 (11th Cir. 1994). The Federal Rules of Civil Procedure require only that a pleading cont ain “a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a) . “A complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests.” Sams v. United Food & Comm’l Workers Int’l Union , 866 F.2d 1380, 1384 (11th Cir. 1989); see also Dussouy v. Gulf Coast Investment Corp. , 660 F.2d 594, 604 (5th Cir. 1981)(“The form of the complaint is not significant if it alleges facts upon which relief can be granted, ev en if it fails to categor ize correctly the legal theory giving rise to the claim.”). We conclude that Appellant’s Compla int satisfies these liberal standards. 14 sole basis for the district court’s grant of summary judgment, its decision must be reversed. 2 B. Discriminatory Discharge
A prima faciecase of discriminatory discharge requires a plaintiff to show that he was a member of a protected class; he was qualified for the j ob; he was terminated despite his qualifications; and after his termination the position remained open and the employer continued to seek applicants of si milar qualifications. Mayfield v. Patterson Pump Co. , 101 F.3d 1371, 1375 (11th Cir. 1996). There is no dispute that Appellant established a prima facie case of discriminatory discharge. Accordingly, the district court considered Appellees’ legitimate, nondiscriminatory reasons. It found several, including that Appellant was fired for “intimidating employees, telling empl oyees they were targeted to be fired,15 failing to order parts on time, insubordi nation, and making threats.” Evans , 934 F.Supp. at 1389. The district court prope rly determined that Appellees met their burden of production. The district court then looked to the issu e of pretext. It concluded that although there may have been some dispute as to the credibility of Appellees’ legitimate, nondiscriminatory reasons, Appellant could not prevail unless the evidence presented also indicated that intentional race di scrimination was the true reason for his discharge. Evans , 934 F.Supp. at 1389 ( citing Hicks , 509 U.S. at 515). In this respect, the district court was in error. Under the esta blished rule of law in this Circuit, a plaintiff can survive a motion for summary judgment or for judgment as a matter of law simply by presenting ev idence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer’s legitimate, nondiscriminatory reasons. Combs , 106 F.3d at 1530-32; Howard , 32 F.3d at 527-28; Hairston v. Gainesville Sun Publishing Co. , 9 F.3d 913, 921 (11th Cir. 1993). On our review it appears that Appellant presented sufficient evidence to create a genuine issue of material fact with re spect to the truth or falsity of each of Appellees’ legitimate, nondiscriminatory r easons. Accepting Appellant’s version of the facts as true, we must conclude thathe was fired on February 22, 1995. The record indicates that, as of that date, McClain had not yet been informed by anyone3 In light of this conclusion, we deem it unnecessary to consider whether, and to what extent, the factual findings and credibility determinations of the NLRB in subsequent and collateral proceeding bind a district court on a motion for reconsideration of its grant of summary judgment. 16 that Appellant was attempting to stir up racial tensions at the plan t. Nor is there any indication that Appellant had been negligent or insubordinate in performing his duties. On the contrary, it appears that Appellant was a capable employee who was frequently relied upon to assist in th e day to day operations of the plant. Appellees’ ad hoc explanations and arguments regarding Appe llant’s actual date of termination are simply insufficient at this stage of the proceedings. Appellees’ assertions concerning Appellant’s “veiled threats” are similarly insufficient. Even the district court rec ognized that these “were subject to question by a trier of fact.” Evans , 934 F.Supp. at 1389. Accordingly, the district court’s gr ant of summary judgment on Appellant’s claim of discriminatory discharge must be reversed. 3 Overtime Compensation The FLSA exempts from its overtime pay requirements “any employee employed in a bona fide executive, administrative, or professional capacity” who receives payment on a salary basi s. 29 U.S.C. § 213(a)(1)(1994); see also Avery v. City of Talladega , 24 F.3d 1337, 1340 (11th Cir. 1994). Exemptions under the FLSA, however, are to be construed narrowly. Nicholson v. World Business Network, Inc. ,17 105 F.3d 1361, 1364 (11th Cir.), cert. denied , S. Ct. (1997). Indeed, the employer has the burden of showing that it is entitled to the exemption. Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 594 (11th Cir. 1995). The district court concluded that A ppellant was exempt from the overtime compensation requirements of the FLSA because he was working in an executive capacity and was paid an annua l salary of $35,000.00. Evans , 934 F.Supp. at 1391 (“29 C.F.R. § 541.1(f) provides ‘that an em ployee who is compensated [on] a salary basis at a rate of not less than $250 per week, . . . and whose primary duty consists of the management of the enterprise in whic h the employee is employed . . . and includes the customary and regular di scretion of the work of two or more other employees therein’ meets the requirements of section 213(a) and is exempt from the overtime pay requirements.”). Accordingly, the district court granted summary judgment on Appellant’s claim for overtime compensati on for the months immediately preceding his discharge. Appellant argues that the district court erred in considering him a salaried employee because he was only given a sa lary in an attempt to “obviate the requirements of the National Labor Relations Act.” He further contends that he was not endowed with managerial responsibility because he could not hire, fire, promote, suspend, reward, or even grant time off for other employees.18 We do not believe that an employer’s subj ective motivations are relevant to the inquiry of whether or not an employee was compensated on a salary basis. The regulations speak in purely objective term s. 29 U.S.C. § 213(f)(“The term ‘employee employed in a bona fide executive * * * capacity’ in section 13(a)(1) of the act shall mean any employee: . . . [w]ho is compensated for his services on a salary basis

. . . .”)(emphasis added). Nevertheless, we conclude thatthe district court’s grant of summary judgment on Appellant’s claim for overtime compensation under the FLSA was erroneous. It is not at all clear fro m the record whether Appellant actually acted in a bona fide executive, ad ministrative, or professional capacity in the months immediately preceding his discharge. Conclusion For the reasons stated in this opinion, we reverse the district court’s grant of summary judgment on Appellant’s claims of race discrimination and for overtime compensation and remand to the district court for further proceedings. REVERSED and REMANDED.19 LIMBAUGH, Senior District Judge, concurring: I concur with both the analysis and the re sult in this case under established Eleventh Circuit precedent. As the presiding distri ct judge in the bench trial of the Hicks case, however, I feel compelled to write separate ly, and respectfully, to note my disagreement with the rule of law propounded inCombs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). In Hicks the Supreme Court unequivocally stat ed, “[e]ven though (a s we say here) rejection of the defendant’s pro ffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination. ” Hicks , 509 U.S. at 511 n.4 (emphasis in original). The Court explicitly recognized that “trial courts or reviewing courts should [not] treat discrimination diffe rently from any other ultimate questions of fact. Nor should they make their inquiry ev en more difficult by appl ying legal rules which were devised to govern the ba sic allocation of burdens and order of presentation of proof in deciding this ultimate question.” Id. , at 524 ( quoting Postal Service Bd. of Governors v. Aikens , 460 U.S. 711, 716 (1983)) (internal quotations and citation omitted). Simply put, the McDonnell Douglas burden shifting framework “i s intended progressively to sharpen the inquiry into the elusive factual que stion of intentional discrimination,” Burdine , 450 U.S. at 255 n.8, not to raise the bar fo r defendant employers in the traditional application of Fed.R. Civ.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to a llow a jury to return a verdict for it); Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (same). In employment discrimination cases, “the ultimate question is discrimination vel non .” Hicks , 509 U.S. at 518 ( quoting Aikens , 460 U.S. at 714). A more than plausible reading of the f acts of this case amply demonstrates the20 problem with the analysis offered in Combs . Assume Appellant establishes a prima facie case of discriminatory discharge. Assume further that Appellees advance several legitimate, nondiscriminatory reasons for the employer’s actions, i.e. , Appellant had become a disruptive force in the plant by intentionally creating racial tensions among the lower level employees, negligently performi ng his duties, and threatening certain white employees. Finally, assume Appe llant presents evidence suffici ent to create a genuine issue of material fact as to the truth or fals ity of Appellees’ legitimate, nondiscriminatory reasons. Under the existing rule of law in th is Circuit, Appellant can survive a motion for summary judgment or for judgment as a matter of law. Suppose, however, that there is virtually no evidence indicating that Appellant’s discharge was motivated by his race. On the contrary, suppose the evidence overwhelmingly suggests that Appellant was discharged for his participation in a union organization effort at the plant. While this motivation is cl early unlawful under the National Labor Relations Act, see McClain of Georgia, Inc. , 322 N.L.R.B. 367 (1996), it in no way violates Title VII or § 1981. See 42 U.S.C. 2000e-2(a); 42 U.S.C. 1981(a); see also Hazen Paper Co. v. Biggins , 507 U.S. 604, 608-14 (1993) (employer does not violate the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ., by terminating older employees in order to prevent their pensi on benefits from vesti ng, even though engaging in such action is unlawful under the Employ ee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 etseq .). Absent some evidence i ndicating that the employer was motivated by a discriminatory animus, “[w]e ha ve no authority to impose liability . . . for alleged discriminatory employment practices.” Hicks , 509 U.S. at 514. Accordingly, judgment as a matter of law must be granted in favor of the employer.

For these reasons and for the reasons mentioned therein, I find the analysis offered21 in Isenbergh v. Knight-Ri dder Newspaper Sales, Inc. , 97 F.3d 436, 440-44 (11th Cir.), cert

. denied , 117 S.Ct. 2511 (1997), to be a more pers uasive and accurate reading of Hicks . See also Hidalgo v. Overseas Candado Ins. Agencies, Inc. , 120 F.3d 328, 335 (1st Cir. 1997) (“In the context of a summaryjudgment proceeding, Hicks requires that once the employer has advanced a legitimate nondiscriminatory ba sis for its adverse employment decision, the plaintiff, before becoming entitled to bring th e case before the trier of fact, must show evidence sufficient for the factfinder reasonabl y to conclude that the employer’s decision to discharge him . . . was wrongfully base d on [an illegitimate criterion].”) (internal quotation omitted); Fisher v. Vassar College , 114 F.3d 1332, 1340 (2d Ci r. 1997) (en banc) (“a prima facie case meeting the minimal standard of McDonnell Douglas (even where elements are acknowledged by th e defendant), together with a finding of pretext, do not necessarily add up to a sustainabl e case of discrimination”), petitionfor cert. filed , 66 U.S.L.W. 3178 (U.S. Sept. 2, 1997) (No. 97-404); Rhodes v. Guiberson Oil Tools , 75 F3d 989, 994 (5th Cir. 1996) (en banc) (“The empl oyer, of course, will be entitled to summary judgment if the evidence taken as a whole woul d not allow a jury to infer that the actual reason for the discharge was discri minatory.”); Ryther v. KARE 11 , 108 F.3d 832, 848 (8th Cir.) (Loken, J., in a partial separate c oncurrence commanding a majority of the Eighth Circuit en banc), cert denied , 117 S.Ct. 2510 (1997) (“[a] district court may grant summary judgment or JAML for the employer, even if pl aintiff has some evidence of pretext if that evidence, for one reason or another, falls s hort of proving intentional discrimination.”).