Revised August 27, 1998

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-60385

____________

LINDA ANNE SCOTT,

Plaintiff - Appellee - Cross-Appellant,

versus

UNIVERSITY OF MISSISSIPPI,

Defendant - Appellant - Cross-Appellee.

Appeal from the United States District Court

For the Northern District of Mississippi

July 27, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The University of Mississippi (“University”) appeals the

judgment entered against it following a jury trial in this Age

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

case brought by Linda Anne Scott. Holding that Scott failed to

adduce sufficient evidence from which a jury could reasonably infer

discriminati on and, therefore, that the district court erred in

denying judgment as a matter of law to the University, we reverse.1 Scott does not ch a llenge the committee’s ranking or

sel ection of Shelson, the only applicant who had experience

teaching legal writing.

-2- I

In 1991, the University of Mississippi School of Law (the “Law

School”) hired Linda Anne Scott as a reference librarian in the Law

School library. In 1993, when she was 54 years old, Scott applied

for the position of legal writing specialist, a ten-month

contractual, non-tenure-track posit ion (the “1993 hiring”). To

make the hiring decision, the law school convened a four-member

committee, consisting of David E. Shipley, Professor and then Dean

of the Law School, Larry S. Bush, Associate Pro fessor, Larry

Pittman, Assistant Professor, and Sylvia Robertshaw, Dire ctor of

the Law School’s legal writing program. From twenty-six total

applicants, the committee selected six finalists, ultimately

ranking Sandra Shelson first, Anne Gullick second, and Scott

t hird. 1 At that time, Gullick was thirty-three years old. The

committee first offered the position to Shelson, who declined the

offer, and then to Gullick, who accepted it. After learning of the

decision to hire Gullick, Scott filed a charge of age

discrimination with the Equal Employment Opportunity Commission

(“EEOC”) and, one year later, in 1994, this law suit. In early

1995, when a legal writing specialist position again became

available, Scott applied for it (the “1995 hiring”). Of thirtythree applicants, Scott was again one of the finalists, but she was-3-

not offered the position.

Scott’s original complaint set forth a claim of age

discrimination for the 1993 hiring. She later amended her

complaint to include a claim of age discrimination for the 1995

hiring and a claim that her not being hired in 1995 was retaliation

for filing her age discrimination claim for the 1993 hiring (the

“second amended complaint”). Before trial, the University

submitted motions in limine (1) to exclude or limit the testimony

of Scott’s expert, Mark Baggett; (2) to limit Scott’s evidence of

retaliation to tho se claims of retaliation raised in her second

amended complaint; and (3) to exclude all testimony regarding age

discrimination in the 1995 hiring. The court allowed Baggett to

testify about the 1993 hiring, but, finding that Scott had not

timely supplemented Baggett’s opinions related to the 1995 hiring,

disallowed his testimony about the 1995 hiring. The court next

granted the University’s motion regarding evidence of retaliation,

limiting Scott to the charges of retaliation raised in her second

amended complaint. Finally, with respect to the 1995 hiring, the

court ruled that Scott could testify “in terms of retaliation but

not as a separate discrimination claim” because she had not

presented the age discrimination claim to the EEOC.

The court thus submitted two claims to the jury: (1) an age

discrimina tion claim for the 1993 hiring, and (2) a retaliation

claim for the 1995 hiring. The jury returned a verdict in favor of

Scott on the age discrimination claim, but in favor of the2 Because we reverse the judgment entered in favor of Scott

on the age discrimi nation claim, we do not reach the issue of

damages or the University’s evidentiary challenges.

-4- University on the retaliation claim. Before the court gave the

jury its instructions, the parties stipulated that the court would

determine the question of damages upon a verdict for Scott. After

the jury rendered its verdict, the court ordered the University to

hire Scott as a legal writing specialis t at the next vacancy and

awarded her front and back pay. Both parties submitted motions for

judgment as a matter of law at the close of evidence and after the

verdict.

The U niversity contends on appeal that the district court

erred (1) in concl uding as a matter of law that it did not have

Eleventh Amendment immunity from suit under the ADEA; (2) in

denying its motion for judgment as a matter of law because the

evidence was insuffic ient to support Scott’s age discrimination

claim; and (3) in admitting Baggett’s testimony regarding the 1993

hiring. Scott cross-appeals the jury verdict on the retaliation

claim, raising evidentiary issues only. Specifically, she claims

that the court erroneously excluded Baggett’s testimony regarding

the 1995 hiring and evidence of retaliation after Scott filed her

second amended complaint. Scott also challenges the court’s

refusal to allow evidence about her claim of age discrimination in

the 1995 hiring. Both parties also appeal various issues related

to damages. 2 Because the Eleventh Amendment, when applicable,3 Three circuits have addressed this issue since Seminole

Tribe

. Two have held that Congress abrogated the states’ Eleventh

Amendment immunity from suit under ADEA. S ee Goshtasby v. Board of

Trustees of the Univ. of Ill. , 141 F.3d 761 (7th Cir. 1998); Hurd

v. Pittsburgh State Univ.

, 109 F.3d 1540 (10th Cir. 1997). One has

reached the opposite result. S ee Kimel v. State of Fla. Bd. of

Regents

, 139 F.3d 1426, 1433 (11th Cir. 1998) (concluding that

“nothing in the ADEA indicates a truly clear intent by Congress to

abrogate Eleventh Amendment immunity”). District courts have split

on the issue, with the minority reaching the opposite result of

Goshtasby and Hurd

. S ee, e.g.

, MacPherson v. University of

Montevallo

, 938 F. Supp. 785 (N.D. Ala. 1996) (holding that

Congress did not abrogate states’ Eleventh Amendment immunity in

enacting the ADEA), aff’d , 139 F.3d 1426 (11th Cir. 1998).

-5- imposes a li mitation on our jurisdiction, s ee Seminole Tribe of

Florida v. Florida

, 517 U.S. 44, 54, 116 S. Ct. 1114, 1122, 134 L.

Ed. 2d 252 (1996), we turn first to that issue.

II

The district court held, without explanation, that Congress

had abrogated the states’ Eleventh Amendment immunity from suit

under the ADEA and that Scott’s ADEA suit was therefore not barred

by the Eleventh Amendment. The University disagrees, arguing that

it is immune from suit under the ADEA. 3

“The Eleventh Amendment provides immunity to states from suits

in federal court by private persons.” C oolbaugh v. Louisiana

, 136

F.3d 430 (5th Cir. 1998), petition for cert. filed

, 66 U.S.L.W.

3783 (U.S. May 28, 1998) (No. 97-1941). That immunity is, however,

not without limit: “A state may consent to be sued in federal

court, and in certain circumstances, Co ngress may abrogate the4 Here, the University has not consented to suit.

-6- st ates’ sovereign immunity.” 4 G oshtasby v. Board of Trustees of

the Univ. of Ill.

, 141 F.3d 761, 7 65 (7th Cir. 1998) (citing

Seminole Tribe

, 517 U.S. at 63-66, 71 n.15, 116 S. Ct. at 1128,

1131 n.15; Fitzpatrick v. Bitzer

, 427 U.S. 445, 456, 96 S. Ct.

2666, 2671, 49 L. Ed. 2d 614 (1976)). In S eminole Tribe

, the

Supreme Court outlined a two-part inquiry for determining whether

Congress has abrogated the states’ sovereign immunity from suit

und er the Eleventh Amendment in enacting particular legislation:

“first, whether Congress ‘has unequivocally expressed its intent to

abrogate th e immunity,’ and second, whether Congress has acted

‘pursuant to a valid exercise of constitutional power.’” Seminole

Tribe

, 517 U.S. at 55, 116 S. Ct. at 1123 (i nternal citation

omi tted) (quoting G reen v. Mansour

, 474 U.S. 64, 68, 106 S. Ct.

423, 426, 88 L. Ed. 2d 371 (1985)). The University contends that

in extending the ADEA to the states, Congress satisfied neither of

these prongs.

A

Congress’s intent to abrogate state sovereign immunity “must

be obvious from ‘a clear legislative statement.’” S eminole Tribe

,

517 U.S. at 55, 116 S. Ct. at 1123 (quoting B latchford v. Native

Village of Noatak

, 501 U.S. 775, 786, 111 S. Ct. 2578, 2584, 115 L.

Ed. 2d 686 (1991)). Congress may abrogate state sovereign immunity5 At the same time, Congress also amended the definition of

“employee” to include “employees subject to the civil service laws

of a State government.” Fair Labor Standards Amendments of 1974,

-7- “only by making its intention unmistakably clear in the language of

the statute.” Id. at 56, 116 S. Ct. at 1123 (quoting Dellmuth v.

Muth

, 491 U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989)). “A

general authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the Eleventh

Amendment.” D ellmuth v. Muth

, 491 U.S. at 231, 109 S. Ct. at 2402,

105 L. Ed. 2d 181 (1989) (quoting Atascadero State Hosp. v.

Scanlon

, 473 U.S. 234, 246, 105 S. Ct. 3142, 3149, 87 L. Ed. 2d 171

(1985)). Instead, both the text and structure of the statute must

“make[] it clear that the State is the [intended] defendant to the

suit.” S eminole Tribe

, 517 U.S. at 57, 116 S. Ct. at 1124.

Congress is not required, however, to “expl icitly reference to

state sovereign immunity or the Eleventh Amendment.” D ellmuth

, 491

U.S. at 233, 109 S. Ct. at 2403 (Scalia, J., concurring).

As originally passe d, the ADEA was enacted pursuant to the

Commerce Clause and applied only to private sector employers. Age

Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81

Stat. 602 (codified as amende d at 29 U.S.C. § 621 e t seq .). In

1974, Congre ss amended the ADEA (the “1974 Amendment”) to cover

state and local government employees by expanding the definition of

“employer” to include “a State or political subdivision of a State

and any agency or inst rumentality of a State.” 5 Fair LaborPub. L. No. 93-259, § 28(a)(4), 88 Stat. 55, 74 (codified as

amended at 29 U.S.C. § 630(f)).

6 Section 626(c)(1) provides: “Any person aggrieved may

bring a civil action in any court of competent jurisdiction for

such legal or equitable relief as will effectuate the purposes of

this chapter.”

-8- Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a)(2), 88

Stat. 55, 74 (codified as amended at 29 U .S.C. § 630(b)(2)). We

find that this reference to the “State” in the 1974 Amendment

evidences a clear statement that Congress intended to subject the

states to suit in federal court. See Ramirez v. Puerto Rico Fire

Serv.

, 715 F.2d 694, 701 (1st Cir. 1983) (“[T]he ADEA’s express

authorization for the maintenance of suit against state employers

comprises adequate evidence to demonstrate the congressional will

that Eleventh Amendment immunity be abrogated.”).

Further compelling evidence of Congress’s intent to abrogate

the states’ sovereign immunity is the ADEA’s enforcement provision

and its explicit incorporation of the enforcement provision of the

Fair Labor Standards Act (“FLSA”). The ADEA section, 29 U.S.C. §

626(b), provides that “[t]he provisions of th is chapter shall be

enforced in accordance with the powers, remedies, and procedures

provided in . . . § 216 (except for subsection (a) thereof) . . .

and sub section (c) of this section.” 6 Section 216(b) provides in

pertinent part that “[a]n action to recover the liability

prescribed

. . . may be maintained against any employer (including

a public agency) in any Federal or State court of competent7 In Employees of Department of Public Health & Welfare v.

Department of Public Health & Welfare, Missouri , 411 U.S. 279, 93

S. Ct. 1614, 36 L. Ed. 2d 251 (1973), the Supreme Court affirmed

the district court’s dismissal of plaintiffs’ FLSA suit on the

grounds of Eleventh Amendment immunity. Following that decision,

Congress amended § 216(b) to its current form “to make it clear

that suits by public employees to recover unpaid wages and

liquidated damages under such section may be main tained in a

Federal or State court of competent jurisdiction” and to “overcome”

the Supreme Court’s decision in Employees

. H.R. Rep. No.93-913, at

45 (1974). That section had previously read that an “[a]ction to

recover such liability may be maintained in any court of competent

jurisdiction.”

The University argues that Congress’s failure to make the same

change to the jurisdictional section of the ADEA that it did to §

216(b) of FLSA )) even though the amendment to § 216(b) was part of

the same amendment that extended the ADEA to the states )) implies

that Congress did not intend to abrogate states’ Eleventh Amendment

immunity from suit under the ADEA. C ompare 29 U.S.C. § 216(b) with

29 U.S.C. § 626(c)(1). In makin g this argument, however, the

University fails to discuss § 216(b) of FLSA or, more importantly,

the ADEA’s explicit incorpo ration of that section in the ADEA

through § 626(b). We therefore find the University’s argument

unpersuasive.

-9- jurisdiction by any one or more employees.” 7 29 U.S.C. § 216(b).

“Public agency” is defined in 29 U.S.C. § 203(x) as including “the

government of a State or political subdivision thereof.” S ee Hurd

,

109 F.3d at 1544 n.3 (holding that Congress clearly intended to

abrogate state immunity for ADEA, reasoning, in part, that “the

[ FLSA] enforcement provisions which the ADEA now refer ences

specifically authorize ADEA suits in federal court”).

Accordingly, we hold that the language of § 626(b) and §

216(b) in conjunction with the specific extension of the ADEA to

state employers unequivocally expresses Congress’s intent that

state employers may be sued under the ADEA in federal courts. S ee8 Neither the Supreme Court nor our circuit has decided

whether the 1974 Amendment may be upheld as a valid exercise of

Congress’s power under § 5 of the Fourteenth Amendment. The

Supreme Court specifically declined to decide this issue in EEOC v.

Wyoming

, 460 U.S. 226, 243, 103 S. Ct. 1054, 1064, 75 L. Ed. 2d 18

(1983) (holding that “[t]he extension of the ADEA to cover the

state and local governments

. . . was a valid exercise of Congress’

power s under the Commerce Clause,” and concluding that the Court

“need not decide whether it could also be upheld as an exercise of

Congress’ powers under § 5 of the Fourteenth Amendment”).

-10- Goshtasby

, 141 F.3d at 766 (concluding that “‘[u]nless Congress had

said in so many words that it was abrogating the states’ sovereign

immunity in age d iscrimination cases ) ) and that degree of

explicitness is not required )) it could not have made its desire to

override the states’ sovereign immunity clearer’”) (quoting

Davidson v. Board of Gover nors of State Colleges & Univs. for W.

Ill. Univ. , 920 F.2d 441, 443 (7th Cir.1990)).

B

Having decided that Congress intended to abrogate the states’

Eleventh Amendment immunity in extending ADEA coverage to the

states, we next consider whether in doing so Congress acted

“pursuant to a valid exercise of power.” 8 Seminole Tribe

, 517 U.S.

at 55, 116 S. Ct. at 1123. In S eminole Tribe

, the Court concluded

that Congress has constitutional authority to abrogate the Eleventh

Amendment immunity of the states through its powers under § 5 of

the Fourteenth Amendment, but not through its powers under the

Commerce Clause. I d

. at 59, 66, 116 S. Ct. at 1125, 1128

(overruling Pennsylvania v. Union Gas

, 491 U.S. 1, 109 S. Ct. 2273,-11-

105 L. Ed. 2d 1 (1989)). We must determine, therefore, whether the

extension of ADEA coverage to the states was a valid exercise of

Congress’s powers under § 5 of the Fourteenth Amendment.

At the outset, we reject the University’s con tention that

Congress’s enforcement powers under § 5 are limited to suspect

classifications. Coolbaugh clearly establishes that Congress’s §

5 enforcement powers are not limited to suspect classifications.

See Coolbaugh

, 136 F.3d at 433-34 (reaching this conclusion in

determining that Congress abrogated the states’ Eleventh Amendment

immunity in enacting the Americans with Disabilities Act (“ADA”));

see also Goshtasby

, 141 F.3d at 770 (“The fact tha t age is not a

suspect qualification does not foreclose Congress from enforcing

the Equal Protection Clause through an enactment protecting against

arbitrary and invidious age discrimination.”).

Congress did not explicitly state that it was enacting the

1974 Am endment pursuant to § 5 of the Fourteenth Amendment. The

University accordingly argues that because Congress did not mention

the Fourteenth Amendment in the 1974 Amendment to the ADEA, it was

not acting pursuant to its § 5 enforcement powers. It is true

that, as the Supreme Court has warned, “we should not quickly

attribute to Congress an unstated intent to act under its authority

to enforce the Fourteenth Amendment.” P ennhurst State Sch. & Hosp.

v. Halderman , 451 U.S. 1, 16, 101 S. Ct. 1531, 1539, 67 L. Ed. 2d

694 (1981). However, contrary to the University’s assertion,-12-

Congress need not “recite the words ‘section 5’ or ‘Fourteenth

Amendment’ or ‘equal protection,’ for ‘[t]he

. . .

constitutionality o f action taken by Congress does not depend on

recitals of the power which it undertakes to exercise.” E EOC v.

Wyoming

, 460 U.S. 226, 243 n.18, 103 S. Ct. 1054, 1064 n.18, 75 L.

Ed. 2d 18 (1983) (quoting Woods v. Cloyd W. Miller Co. , 333 U.S.

138, 144, 68 S. Ct. 421, 424, 92 L. Ed. 2d 596 (1948)). Instead,

we look to the structure of the ADEA as well as its legislative

history in determining whether Congress relied on its § 5

enforcement power to enact the 1974 Amendment. S ee Goshtasby

, 141

F.3d at 766-68; see also Coolbaugh , 136 F.3d at 435-37 (reviewing

Congressional findings and legislative hist ory of ADA in

determining that Congress acted within its § 5 enforcement power in

enacting the ADA).

In City of Boerne v. Flores

, ___U.S.___, 117 S. Ct. 2157,

2163, 138 L. Ed. 2d 624 (1997), the Supreme Court reiterated that

the Congress’s § 5 enforcement power encompasses legislation that

carries out the objectives of the Fourteenth Amendment. Moreover,

it clarified that “[l]egislation which deters or remedies

[Fourteenth Amendment] constitutional violations can fall within

the sweep of Congress’ enforcement power even if in the process it

prohibits conduct which is not itself unconstitutional and intrudes

into ‘legislative spheres of autonomy previously reserved to the

States.’” I d

. (quoting F itzpatrick

, 427 U.S. at 455, 96 S. Ct. at-13-

2671). Thus, as the Flores Court reaffirmed, Congress has, under

its § 5 enforcement power, “the authority to both remedy and

prevent constitutional viola tions.” C oolbaugh

, 136 F.3d at 434;

see also Flores , ___ U.S. at ___, 117 S. Ct. at 2164 (emphasizing

that Congress’s § 5 enforcement power , which the Court has

described as remedial, is limited t o enforcing the provisions of

the Fourteenth Amendment).

In Coolbau gh , we concluded that “Congress is authorized to

adopt legislation that remedies or prevents unconstitutional

c onduct, provided there is a ‘congruence and proportional ity

between the injury to be prevented or remedied and the means

adopted to that end.’” C oolbaugh

, 136 F.3d at 435 (quoting Flores

,

___ U.S. at ___, 117 S. Ct. at 2164). We are guided in our

determination of this issue by the two-part proportionality inquiry

set out in Coolbaugh

, where we explained that “[t]his

pro portionality inquiry has two facets: the extent of the

thr eatened constitutional violations, and the scope of the steps

provided in the legislation to remedy or prevent such violations.”

Coolba ugh , 136 F.3d at 435. To determine “the extent of the

threatened constitutional violations” ) ) the first prong of the

proportionality test )) we examine Congress’s findings regarding the

evils it was addressing in passing the ADEA. As stated in the

ADEA’s preamble, Congress found that “in the face of rising

productivity and affluence, older workers find themselves9 Congress also set forth the following additional

findings:

(3) the incidence of unemployment, especially

long-term unemployment with resultant

deterioration of skill, morale, and employer

acceptability is, relative to the younger

ages, high among older workers; their numbers

are great and growing; and their employment

problems grave;

(4) the existence in industries affecting

comme rce, of arbitrary discrimination in

employment because of age, burdens commerce

and the free flow of goods in commerce.

29 U.S.C. § 621(a).

-14- disadvantaged in their efforts to retain employment, and especially

to regain employment when displaced from jobs.” 29 U.S.C. §

621(a)(1). It further found that “the setting of arbitrary age

limits regar dless of potential for job performance has become a

common practice, and certain otherwise desirable practices may work

to the disadvantage of older person s.” 9 29 U.S.C. § 621(a)(2).

Congress concluded that “[i]t is therefore the purpose of this Act

to promote employment of older persons based on their ability

rather than age; to prohibit arbitrary age disc rimination in

employment; to help employers and workers find ways of meeting

problems arising from the impact of age on employment.” 29 U.S.C.

§ 621(b). In addition to these statements by Congress, the

Secretary of Labor reported the following, based on “the extensive

factfinding undertaken by the Executive Branch and Congress” prior10 In introducing a prior, unsuccessful bill extending

coverage of the ADEA to federal, state, and loca l employees,

Senator Bentsen made the following remarks:

[T]here are strong indications that the hiring and firing

practices of government units discriminate against the

elderly, frequently pressuring them into retiring before

their productive days are over. . . . [W]hatever the

form, the pressures directed against older Government

employees constitute flagrant examples of age

discrimination in employment, and as such, they should be

outlawed.

. . . Quite apart from any economic arguments,

the central issue is whether we want to give older

workers a feeling that they can still cont ribute, that

their age is no bar to a productive life. If we fail to

give our older citizens an equal chance in empl oyment

decisions, we may add to the feeling of uselessness which

-15- to the enactment of the ADEA:

Although age discrimination rarely was based on the sort

of animus motivating some other forms of discrimination,

it was based in large part on stereotypes unsupported by

objective fact, and was o ften defended on grounds

different from its actual causes. . . . Moreover, the

available empirical evidence demonstrated that arbitrary

age lines were in fact generally unfounded and that, as

an overall matter, the performance of older workers was

at least as good as that of younger workers.

Wyoming

, 460 U.S. at 231, 103 S. Ct. at 1057 (citing Report of the

Secretary of Labor, The Older American Worker: Age Discrimination

in Employment (1965)).

Alt hough the legislative history of the 1974 Amendment is

somewhat sparse, it evidences that “Congress subsequently

established that these same conditions existed in the public

sector.” G oshtasby

, 141 F.3d at 772 (citing S. Rep. No. 93-846, at

112 (1974); 118 Cong. Rec. 7,745 (1972) (remarks of Sen.

Bentsen) 10 ). Congress indicated its purpose in passing the 1974is so prevalent among older Americans today.

118 Cong. Rec. S7,745-46 (1972).

-16- Amendment by quoting the following remarks:

As the President said in his message of March 23, 1972,

supporting such an extension of coverage under the ADEA:

“Discrimination based on age )) wh at some people call

‘age-ism’ )) can be as great an evil in our society as

discrimination based on race or religion or any other

characteristic which ignores a person’s unique status as

an individual and treats him or her as a member of some

arbitrarily-defined group. Especially in the employment

fie ld, discrimination based on age is cruel and

self-defeating; it destroys the spirit of those who want

to work and it denies the Nation[] the contribution they

could make if they were working.”

H.R. Rep. No. 93-913, at 4 0-41 (1974). Senator Bentsen made the

foll owing remarks regarding the 1974 Amendment: “The passage of

this measure insures that Government employees will be subject to

the same protections against arbitrary employment based on age as

are employees in the private sector.” 120 Cong. Rec. S8,768

(1974).

Giving these congressional findings the substantial deference

that we m ust, s ee Coolbaugh

, 136 F.3d at 435, we find that the

legislative history of the ADEA supports Congress’s findings that

discrimination on the basis of age presented a serious and common

problem. S ee Hazen Paper Co. v. Biggins

, 507 U.S. 604, 610, 113 S.

Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) (“Congress’ promulgation

of the AD EA was prompted by its concern that older workers were

being deprived of employment on the basis of inaccurate and-17-

stigmatizing stereotypes.”); EEOC v. Elrod

, 674 F.2d 601, 604 (7th

Cir. 1982) (holding that the le gislative history of the ADEA

supports a conclusion that the purpose of the ADEA was “to prohibit

arbitrary, discriminatory conduct that is the very essence of the

guarantee of ‘equal protection o f the laws’ of the Fourteenth

Amendment”).

The remaining part of our inquiry is “whether the scope of the

[ADEA] is so ‘sweeping’ that the statute cannot be seen as

proportional to the evil Congress sought to address.” Coolbaugh

,

136 F.3d at 437. In G oshtasby

, the Seventh Circuit summarized the

scope of the ADEA as follows:

The purpose of the AD EA is “to prohibit arbitrary age

discrimination in employment.” The ADEA attempts to

redress and prevent discrimination and stereotyping of

older Americans by requiring that determinations be based

on merit. See Hazen Paper Co. , 507 U.S. at 611, 113 S.

Ct. at 1706 (“The employer cannot rely on age as a proxy

for an employee’s remaining characteristics, such as

productivity, b ut must instead focus on those factors

directly.”). Thus, the ADEA requires personalized

determinations based on facts. If however, youth is a

bona fide occupational qualification that is reasonably

necessary to the normal operation of the particular

business, an employer may use age as a criterion for

employment decisions. . . . The ADEA, as applied by the

courts, ferrets out instances of arbitrary age

discrimination.

Goshtasby

, 141 F.3d at 772 (citations omitted). As the Seventh

Circuit opined, “unlike the statute at issue in F lores

, which

imposed ‘the most demanding test known to constitutional law,’ the

ADEA is narrowly drawn to protect older citizens from arbitrary and

capricious actio n by the state.” I d. We agree and, therefore,-18-

cannot conclude that the remedies imposed by the ADEA “are too

sweeping to survive the Flores proportionality test for legislation

tha t provides a remedy for unconstitutional discrimination or

prevents threatened unconstitutional actions.” C oolbaugh

, 136 F.3d

at 438. We accordingly hold that the ADEA represents a valid

exercise of Congress’s § 5 enforcement power under the Fourteenth

Amendment. Thus, the University is not entitled to Eleventh

Amendment immunity from suit under the ADEA.

III

The University moved for judgment as a matter of law on

Scott’s claim of age discrimination at the close of Scott’s case,

at the close of a ll the evidence, and after the verdict. On

app eal, the University contends that the district court erred in

denying these motions because Scott presented insufficient evidence

that age was a determinative factor in its 1993 hiring decision.

A

We review a district court’s denial of a motion for judgment

as a matter of law de novo

. S ee Travis v. Board of Regents of the

Univ. of Tex. Sys.

, 122 F.3d 259, 263 (5th Cir. 1997), c ert.

denied

, ___U.S.___, 118 S. Ct. 1166, 140 L. Ed. 2d 176 (1998). “A

motion for judgment as a matter of law

. . . in an action tried by

jury is a challenge to the legal sufficiency of the evidence

supporting the jury’s verdict.” H arrington v. Harris , 118 F.3d

359, 367 (5th Cir. 1997), cert. denied

, ___U.S.___, 118 S. Ct. 603,-19-

1 39 L. Ed. 2d 491 (1997) (internal quotations and citation

omitted). We test jury verdicts for sufficiency of the evidence

under the standards se t forth in B oeing Co. v. Shipman

, 411 F.2d

365, 374 (5th Cir. 1969) (en banc), overruled on other grounds

,

Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331 (5th Cir. 1997)

(en banc), viewing all the evidence and drawing all reasonable

inferences in the light most favorable to the verdict. Rhodes v.

Guiberson Oil Tools

, 7 5 F.3d 989, 993 (5th Cir. 1996) (en banc)

(quoting Boeing , 411 F.2d at 374).

Under Boeing

, there must be a conflict in substantial evidence

to create a jury question. Thus, a court should grant a motion for

judgment as a matter of law “not only when the non-movant presents

no evidence, but also when there is not a sufficient ‘conflict in

substantial evidence to create a jury question.’” T ravis

, 122 F.3d

at 263 (quoting Boeing

, 411 F.2d at 374). “Substantial evidence is

defined as ‘evidence of such quality and weight that reasonable and

fair-minded men in the exercise of impartial judgment might reach

different conclusions.’” Rhodes , 75 F.3d at 993 (quoting Boeing

,

411 F.2d at 374). “A mere scintilla of evidence is insufficient to

present a question for the jury.” Boeing , 411 F.2d at 374.

We apply the burden- shifting framework expounded by the

Supreme Court in McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of

Community Affairs v. Burdine

, 450 U.S. 248, 101 S. Ct. 1089, 67 L.-20-

Ed. 2d 207 (1981), to ADEA cases. See Rhodes , 75 F.3d at 992-93.

When a case has been fully tried on the merits, however, “we need

not parse the evidence into discrete segments corresponding to” the

different stages of the McDonnell Douglas

- Burdine framework.

Travis

, 122 F.3d at 263. Instead, applying B oeing ’s sufficiency of

the evidence standards, we examine whether the plaintiff has met

her ultimate burden of proving that the employer disc riminated

against her because of age. See id.

A plaintiff need not, however , provide direct evidence to

sustain a jury finding of discrimination. See Rhodes , 75 F.3d at

993. “Because direct evidence is rare in discrimination cases, a

plaintiff must ordinarily use circumstantia l evidence to satisfy

her burden of persuasion.” I d

. Circumstantial evidence must be

such, however, “as to allow a rational factfinder to make a

reasonable inference that age was a determinati ve reason for the

employment decision.” I d. Moreover, to give rise to such an

inference of disc rimination, the employee must provide some

evidence, direct or circumstantial, to rebut each of the employer’s

proffered reasons and allow the jury to infer that the employer’s

explanation wa s a pretext for discrimination. S ee Swanson v.

General Servs. Admin. , 110 F.3d 1180, 1185 (5th Cir. 1997), cert.

denied

, ___U.S.___, 118 S. Ct. 366, 139 L. Ed. 2d 284 (1997); EEOC

v. Texas Instruments Inc.

, 100 F.3d 1173, 1180 (5th Cir. 1996).

“The trier of fact may not simply choose to disbelieve the-21-

employer’s explanation in the absence of any evidence showing why

it should do so.” Swanson , 110 F.3d at 1185.

Although “[i]n tandem with a pr ima facie case, the evidence

allowing rejection of the employer’s proffered reasons will often,

perhaps usually, permit a finding of discrimination without

additional evidence,” Rhodes , 75 F.3d at 994, it does not always

d o so. S ee Travis

, 122 F.3d at 263 (explaining th at even if a

plaintiff’s evidence “permit[s] a tenuous inference of pretext and,

by extension, discrimination,” the evidence may “be insufficient as

a matter of law to support a finding of discrimination”). “[A]

jury issue will be presented and a pl aintiff can avoid . . .

judgment as a matter of law if the evidence taken as a whole (1)

creates a fact issue as to whether each of the employer’s stated

reasons was what actually motivated the employer and (2) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complains.” R hodes

, 75 F.3d at 994. On

the other hand, an employer will be entit led to judgment as a

matter of law “if the evidence taken as a whole would not allow a

jury to infer that the actual reason for the [employer’s decision]

was discriminatory.” Rhodes , 75 F.3d at 994.

B

With these principles in mind, we turn to the case at hand.

Arguing that there is no evidence to support the jury’s verdict of

discrimination, the University characterizes this case as the-22-

proverbial second-guessing of its decision that Gullick was more

qualified than Scott. The University consistently asserted

throughout trial )) and continues to argue on appeal )) that while Scott

was highly qualified for the legal writing specialist position, she

was simply not the most qualified. As the University has

repeatedly pointed out, and Scott has not disputed, the committee

ranked Scott third out of the twenty-six applicants for the 1993

hiring and would have offered the position to Scott if Gullick had

refused the off er and Scott’s reference check was satisfactorily

concluded.

Scott contends that she d id in fact present sufficient

evide nce of age discrimination. Scott first claims that the

University’s reasons for not hiring her were pretextual, thus

providing circumstantial evidence of discrimination. Scott further

argues that, ap art from the evidence specifically refuting the

University’s reasons for not hiring her, she presented other direct

and circumstantial evidence showing that the University’s decision

was motivated by age. We address in turn the various components of

Scott’s evidence.

1

In su pport of its 1993 hiring decision, the University

produced several reasons why the committee ranked Gullick second

and Scott third. At trial, three of the four members of the 1993

hiring committee testified as to their reasons for ranking Gullick

over Scott. All three emphasized Gullick’s four and a half years-23-

of federal district court clerkship exp erience, viewing that

favorably over Scott’s one-year Mississippi Supreme Court justice

clerkship. Bush in particular valued this credential, considering

a federal clerkship to be the “best apprenticeship you can have for

teaching law at any level.” The members also cited Gullick’s very

favorable letters of recommendation; Bush noted that the three

judges for whom Gullick had worked had given her strong letters of

recommendation. The committee members considered the quality and

extent of Gullick’s legal writing experience to be superior to

Scott’s, a criterion they all considered crucial for the position.

In addition to the writing experien ce she gained while clerking,

they emphasized her experience writing briefs on a contract basis

for attorneys in Memphis. Pittman noted that Gullick had written

and argued briefs during this time, even arguing at least one

before the Sixth Circuit. Finally, although they all thought Scott

interviewed well, they believed Gullick’s interview to be stronger

than Scott’s. Testifying that Gullick came across as “very

enthusiastic” and “forceful” in her interview, Pittman viewed her

interview and work experience so favorably that at one time he

considered ranking Gullick over even Shelson. Although Bush noted

that Scott gave one of the better interviews of the finalists, he

praised Gullick as bein g very outgoing and very assertive,

resulting in a strong interview. While the committee members

viewe d Scott’s Ph.D. and prior college-level teaching experience

very positively, considering the latter to be much more extensive11 Scott argues that the reasons provided by the University

other than in the Affirmative Act ion report are highly suspect,

post hoc rationalizations. This contention is easily rejected.

The Affirmative Action report undisputedly des cribes the reasons

Shelson was selected over the other candidates. Moreover, Scott

presents no evidence that the explanations given by the committee

members for ranking Gullick second and Scott third were not the

members’ legitimate reasons at the time of their decision. S ee

EEOC v. Louisiana Office of Community Servs.

, 47 F.3d 1438, 1445-46

(5th Cir. 1995) (rejecting EEOC’s argument that the standards used

by the employer in making its promotion decision were post hoc

rationalizations: “[W]e decline to substitute our judgment for the

employer in evaluating what types of experience are most valuable

for an em ployee in the new position in the absence of proof that

the standards were not consistently applied or were so irrational

or idiosyncratic as to suggest a cover-up.”); cf. Lloyd v. Georgia

Gulf Corp. , 961 F.2d 1190, 1195 & n.7 (5th Cir. 1992) (explaining

that jury could r easonably infer that employer’s explanation of

poor performance was “‘an after the fact inspiration triggered by

the necessit y of fending off litigation” when no supporting

documentation of poor performance existed in employee’s personnel

file) (quoting Walther v. Lone Star Gas Co.

, 952 F.2d 119, 124 (5th

Cir. 1992)).

-24- than Gullick’s two years of high school teaching, they found these

other reasons to warrant ranking Gullick one notch above Scott.

Several of these reasons were included in the Affirma tive

Actio n report the Law School filed with the University’s

Affirmative Action office. The report, which was completed and

submitted after t he initial ranking, explained first why Shelson

was selected. The report then explained why other applicants were

deselected. 11 With respect to Gullick, the report stated:

Ms. Gullick had significant legal writing experience both

as a law clerk f or four years at the trial court level

and as a practicing attorney, but she had no significant

teaching experience. Ms. Gullick has written briefs and

has argued at least one federal appellate case. She had

a strong interview, but lacks significant teaching

experience.12 Shelson was the only candidate who had previously taught

legal writing, and, according to the report (as well as the

-25- With respect to Scott, the report stated:

Although Ms. Scott has a substantial amount of English

teaching experience and one year of clerking at the

appellate level, she had no teaching experience in legal

w riting. Moreover, Ms. Scott has never worked in the

class room with collaborative groups, which is a

significant part of the pedagogy of the Legal W riting

Program.

Citing all of these reasons, the University adamantly contends that

Scott simply pr esented no evidence showing that these sound,

professional reasons, or the committee’s reliance on them, were

false, let alone a pretext for age discrimination.

Scott disagrees, claiming that she established a genuine issue

for trial about the legitimacy of each of the nondiscriminatory

reasons offered by the University for ran king Gullick over her.

She first challenges the Affirmative Action report’s statement that

Scott was deselected because she had neither taught legal writing

nor worked with collaborative groups. Scott claims that these

reasons are pretexts for discrimination because Gullick had not

taught legal writing either, Ro bertshaw did not even ask Gullick

about collaborative groups, and Robertshaw testified that

collaborative groups were n ot that important and that there was

nothing particularly difficult about them. The University responds

by pointing out that the Affirmative Action report to which Scott

refers sets forth the University’s reasons why Shelson was selected

and the ot her applicants were deselected, 1 2 not why Gullick wascommittee members’ test imony), this was the primary reason the

committee ranked Shelson over Gull ick and Scott. The record

indicates that the fact that Scott had no experience teaching with

collaborative gro ups was relevant to the comparison of Scott to

Shelson. Robertshaw explained at trial that she asked Scott about

her experience with collaborative groups to determine the relevance

of her prior teaching experience to the legal writ ing position.

Furthermore, nothing in the record indicates that an y of the

committee members ever contended that Gullick’s teaching experience

was a plus factor for Gullick. In fact, Robertshaw explained that

she did not ask Gullick about collaborative group teaching because

Gullick’s only e xperience teaching was at the high school level,

something which all of the committee me mbers testified weighed

against her when compared to Scott.

-26- selected and Scott deselected )) a fact that Scott does not dispute.

Thus, the University argues, Scott does not effectively refute its

reasons for preferring Gullick over Scott and, in fact, merely

restates the reasons why it preferred Shelson over Scott and

Gullick. We agree.

Scott next challenges the University’s explanation that

Gullick had more extensive legal writing and research experience.

She attempts to rebut this explanation by pointing out that she was

teaching legal research to first-year law students at the time of

the 1993 hiring an d that she had more than ten years experience

teaching college-level English. She also argues that the

committee’s ranking of Gullick over Scott based on writing skills

could not be true because the committee made its initial ranking

without the benefit of Scott’s writing samples.

At the outset, we note that neither the Affirmative Action

report nor the committee members’ testimony indicates that the13 Bush, one of the committee members, was responsible for

informing the interviewees that they had been selected for an

interview. He was to tell them at the time he scheduled their

interviews that they needed to provide the committee with writing

samples when they arrived for their interview. Bush testified that

he forgot to tell Scott to bring a writing sample to the interview.

He explained that when he invited the other candidates, he did so

on the telephone from his office, where he referred to a list of

things he wanted to tell the candidates; when he informed Scott of

her selection for an interview, however, he walked downstairs to

the library and did not have his list for reference. Scott

testified that she was asked for her writing samples at her

interview, which was on a Thursday, but was not able to give them

to the committee until Monday because s he had to go home to

Gulfport to retrieve them.

The committee met on the morning of that Monday, June 14th.

The record indicates that while the rankings made at that meeting

were subject to certain contingenci e s, including, among other

things, reference checks of the top two candidates, these rankings

were approved by the Dean and remain unchanged as a result of the

reference checks and the resolution of the other contingencies.

-27- committee cited Gullick’s research skills as a reason for ranking

Gullick over Scott. Thus, any attempt Scott makes to rebut such a

reason is irrelevant. The University did, of course, repeatedly

mention legal writ ing experience as a basis for ranking Gullick

over Sc ott. Scott’s first two reasons here ) ) her experience

teaching English and her experience teach ing legal research ) ) do

not, however, cast su spicion on the committee’s opinion that

Gullick’s legal writing experience was superior to Scott’s

experience and instead present only a mismatched comparison.

With respect to the writing samples, the record indicates that

Scott submitted her writing samples to the committee shortly after

its June 14th meeting, at which time the committee ranked the

finalists. 13 The relevancy of this fact to the committee’s stated14 With respect to her opinion of the writing samples,

Robertshaw testified that while Scott’s writing samples were

“pretty good,” they did not affect her opinion of Scott’s ranking

in relation to Gullick, who submitted a brief that Gullick wrote

for an appeal to the Sixth Circuit and that Robertshaw considered

“very outstanding.”

-28- reasons for its decision is, however, not evident. The reason

offered by the University for ranking Gullick over Scott was the

quality of Gullick’s legal writing experience as compared to

Scott’s. The record indicates that the committee members based

their opinions of Gullick’s legal writing experience on Gullick’s

federal clerkship experience, her subsequent brief-writing work,

and her letters of recommendation )) none of which Scott is able to

rebut. Moreover, the only trial testimony elicited of the

committee members regarding their consideration of writing samples

was Robertshaw’s testimony that although she reviewed some of

Gullick’s writing samples , she read Scott’s writing samples at

about the sam e time she read Gullick’s. 1 4 For these reasons, we

conclude that Scott has failed to present evidence rebu tting the

University’s reliance on Gullick’ s legal writing experience in

ranking Gullick over Scott.

Scott is unable to present ev idence refuting any of the

University’s other reasons for ranking Gullick over Scott. Most

notably, she does not attempt to refute the committee’s reliance on

Gulli ck’s federal clerkship experience, which was arguably the

committee members’ primary reason for ranking Gullick over Scott,

other than by introducing statements that a Missis sippi Supreme-29-

Court clerkship is comparable to a federal clerkship. In fact, in

her brief, Scott concedes that Gullick possessed this qualification

and she did not. “Where the plaintiff has offered no evidence to

rebut the employer’s facially benign explanations, no inference of

discrimination can be drawn.” E EOC v. Louisiana Office of

Community Servs.

, 47 F.3d 1438, 1447 (5th Cir. 1995); see also id

.

at 1448 (“[T]he only eviden ce [of discriminatory intent] is the

EEOC’s own speculation that age motivated the decis ion not to

promote Fisher. We have consistently held that an employee’s

subjective belief of discrimination, however genuine, cannot be the

basis of judicial relief.”).

Despite this lack of evid e nce rebutting the University’s

proffered legitimate, nondiscriminatory reasons for ranking Gullick

second and he r third, Scott claims that not only was she better

qualified than Gullick, she w as c learly better qualified.

Specifically, she claims that the jury could have found that her

Ph.D. in English, Masters in Library Science, college teach ing

experience, Mississippi Supreme Court clerkship, and experience

teaching legal research to law students compared to Gullick’s B.A.

in English, federal clerkship, and two years teaching high school

made Scott so cle arly better qualified that the University’s

reasons for not selecting Scott must have been pretexts for age

discrimination.

We have held that “a plaintiff can take his case to a jury15 In Bodenheimer v. PPG Indus., Inc ., 5 F.3d 955, 959 n.8

(5th Cir. 1993), we questioned whether this proposi tion remains

viable in light of the Supreme Court’s decision in St. Mary’s Honor

Center v. Hicks

, 50 9 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407

(1993) bec ause “[a]rguably, evidence showing the plaintiff was

‘clearly better q ualified’ establishes only that the employer’s

proffered reasons were pretextual and not that they were a pretext

for age discrimination, as required by St. Mary’s .” Because we

conclude that Scott has failed to present evidence that she was

clearly better qual ified than Gullick, we need not reach that

question today.

-30- with evidenc e that he was c learly better qualified than younger

employees” who were selected for the position at issue. 15 W alther

v. Lone Star Gas Co. , 952 F.2d 119, 123 (5th Cir. 1992) (emphasis

added); see also Louisiana Office of Community Servs. , 47 F.3d at

1444 (“A factfinder can infer pretext if it finds that the employee

was ‘clearly better qualified’ (as opposed to merely better or as

qualified) than the employees who are selected.”). “However, this

evidence must be more than merely subject ive and speculative.”

Nichols v. Loral Vought Sys. Corp.

, 81 F.3d 38, 42 (5th Cir. 1996).

“To establish a fact question as to relative qualifications, a

plaintiff must provide sufficiently specific reas ons for his

opinion; mere subjective speculation w ill not suffice.” Id

.

Moreover, in pursuing this inquiry, we recognize that “the judicial

system is not as well suited by training and experience to evaluate

qualifications

. . . in other disciplines as are those persons who

have trained and worked for years in that field of endeavor for

whi ch the applications under consideration are being evaluated.”

Louisiana Office of Community Servs.

, 47 F.3d at 1445. Thus,16 On appeal, the University challenges the admission of

Baggett’s testimony regarding the 1993 hiring on thre e grounds.

Because we reverse the judgment entered in favor of Scott on the

age discrimination claim, we need not consider these arguments.

-31- “[u]nless disparities in curricula vitae are so a pparent as

virtually to jump off the page and slap us in the face, we judges

should be reluctant to substitute our views for those of the

individuals charged with the evaluation duty by virtue of their own

years of experience and expertise in the field in question.” Id.

To support her assertion that she was clearly better qualified

than Gullick, Scott p resents her testimony and the testimony of

Mark Baggett, her expe rt. 1 6 Scott testified that she had a Ph.D.

and a Masters degree in English in addition to her law degree,

while Gullick had only a law degree. She cited her extensive

teac hing experience compared to Gullick’s two years of teaching

high school. She also compared her Mississippi Supreme Court

clerkship to Gullick’s fed e ral clerkship, concluding that her

clerking experience was superior to Gullick’s. She also noted that

one of the two professors as well as a group of students who gave

their opinions of the candidates to the committee ranked her one

ahead of Gullick. (The other professor listed both Gullick and

Scott in his top three, but did not rank them within that group.).

Scott also points to the testimony of her expert, Mark

Baggett, who teaches English literature and composition in the

English department as well as legal writing and research in the law

school at Cumberland University. Baggett stated that Scott was17 We note that Baggett’s statement that Scott was “clearly

better qualified” for the legal writing position cannot by itself

be suff icient to create a jury question on discrimination; like

Scott, Baggett must p resent specific reasons supporting this

conclusion. C f. Nichols

, 8 1 F.3d at 42 (“To establish a fact

q uestion as to relative qualifications, a plaintiff must p rovide

sufficiently specific reasons for his opinion.”).

-32- “clearly better qua lified” for the legal writing position than

Gullick. He based this decision primarily on Scott’s Ph.D. in

English because it requires a dissertation, which he described as

a very rigorous writing project, and involves teaching. He also

cited her experience in private practice, her degree in Library

Science, and her job as reference librarian at the Law School’s

library as furt her supporting his opinion. Finally, Baggett

t estified that a State Supreme Court clerkship and a federal

clerkship are generally comparable in the extent of legal research

and writing.

The University contends that Scott’s evidence, including her

and Baggett’s testimony, did nothing more than present a difference

of opinion as to whether Scott or Gullick was better qualified for

the job and, therefore, did not estab lish either directly or

through inference that the University intentionally refused to hire

Scott because of her age. We agree. Their testimony, as well as

our review of the resumes and other documents included in the

record, is insufficient ev idence that Scott was c learly better

qualified and, therefore, does no t suffice to present a jury

question as to pretext. 17 Scott’s comparison of her qualifications-33-

with Gull ick’s simply does not reveal any “glaring distinction”

that would reasonably support a conclusion that she was clearly

better qualified than Gullick. S ee Odom v. Frank

, 3 F.3d 839, 846

(5th Cir. 1993) (“Their respective statements of ‘specific

qualifications’ are quite different, but neither is particularly

more impressive than the other. A careful and objective comparison

of Price’s and Odom’s applications reveals no glaring distinction

t hat would support a finding that Odom was ‘clearly better

qualified than [Price] for the . . . position.’”). We note first

that in comparing her qualifications to Gullick’s, Scott

understates Gullick’s qualifications. She refers to Gullick’s four

and a half years of federal clerkship experience merely as a

“federal clerkship” and does not ev en mention, for example,

Gullick’s other legal w riting experience. Scott’s teaching

experience is, of course, much more extensive than Gullick’s. On

the other hand, the record reveals that Gullick had more extensive

legal writing experience; for example, the record indicates that

Gullick had significant brief-writing experience, while Scott

testified that she had written only one brief other than the briefs

she had written for this lawsuit. Furthermore, like Scott’s,

Baggett’s comparison of Scott’s qualifications with Gullick’s

simply does not reveal any “glaring distincti on” that would

reasonably support a conclusion that Scott was clearly better

qualified or, more importantly, that the University discriminated18 This conclusion is bolstered by the fact that the

district court qualified Baggett as an expert only in legal

writing, explicitly limiting Baggett to testifyin g about legal

writing ability (specifically, Scott’s legal writing ability as

compare d to Gullick’s), and not about hiring decisions. Thus, as

the district court expressly ruled, Baggett was not an expert on

hiring decisions. Nor could he be in this specific instance. He

had not, for example, met or interviewed any of the candidates or

read the letters of recommendation submitted by the applicants to

the committee. His opinion was based mainly on Scott’s and

Gullick’s resumes and writing samples, including the writing

samples submitted to the committee as well as two documents Scott

prepared for this litigation.

-34- against Scott on the basis of age. 18 In fact, his testimony

undermined Scott’s in one respect: while she claimed that her

clerkship was super ior to Gullick’s, Baggett testified that they

were comparable.

I n sum, we conclude that Scott’s qualifications are not “so

superior” to those of Gullick’s “to allow an inference of pretext.”

Louisiana Office of Community Servs. , 47 F.3d at 1445. We see no

“disparities in curricula vitae [that] are so apparent as virtually

to jump off the page and slap us in the face.” I d.; see also Odom

v. Frank , 3 F.3d 839, 847 (5th Cir. 1993) (“We find that neither

singly nor collectively do Odom’s qualifica tions leap from the

record and cry out to all who would listen that he was vastly )) or

even clearly )) more qualified for the subject job than was Price.”).

Disagreements over which applicant is more qualified are employment

decisions in which we will not engage in the practice of second

guessing. S ee Bienkowski v. American Airlines, Inc.

, 851 F.2d

1503, 1507-08 (5th Cir. 1988) (“The ADEA was not intended to be a-35-

vehicle for judicial second-guessing of employment decisions, nor

was it intended to transform the courts into personnel managers.”);

Mechnig v. Sears, Roebuck & Co.

, 864 F.2d 1359, 1365 (7th Cir.

198 8) (“[W]e do not sit as a super-personnel department that

reexamines an entity’s business decisions.”). Even if evidence

suggests that a decision was wrong, we will not substitute our

judgment as to who was more qualified for the employer’s business

judgment. S ee Bienkowski

, 851 F.2d at 1508 (“The ADEA cannot

protect older workers fromerroneous or even arbitrary personnel

decisions, but only from decisions which are unlawfully

motiva ted”). Such disputes do not support a finding of

discrimination and have no place in front of a jury.

2

Scott next claims that statistical evidence shows that the Law

School had a policy of not hiring tenure-track professors or legal

writing teachers over the age of forty. She specifically relies on

the fact that the five legal writing teachers hired by the

University’s law school during the relevant period were all under

forty years old. She also claims that from 1986 through 1995, few

professors over the age of forty were hired, and the few who were

hired were significantly younger than Scott. In denying the

University’s first partial summary judgment motion, the distr ict

court referred to this evidence, noting that “it may be significant

that the law school has hired only one person in the over-forty age-36-

bracket since 1986 as a regul ar full-time professor” and that

“[t]hose in the protected age group who have been employed were

hired as ‘visiting professor’ or ‘adjunct professor’ or ‘professor

e meritus’ or ‘acting professor.’” The University challenges

Scott’s proposed evidence of a discriminatory hiring policy first

by arguing that Scott ignores evidence in the record that refutes

her data and second by claiming that her assertion of a

discriminatory hiring policy is flawed as a statistical matter.

Assuming arguendo that Scott’s data accurately states the ages

of professors and legal writing teachers hired during the stated

periods, we nonetheless agree w ith the University that Scott’s

asserted st atistical evidence is fatally flawed and does not

support an inference of age discrimination. We have previously

stated that while statistical evidence “may be probative of pretext

in limited circumstances,” it “usually cannot rebut the employer’s

articulated nondiscriminatory reasons.” T exas Instruments

, 100

F.3d at 1184-85 (“[P]roof of pretext, hence of discriminatory

i ntent, by statistics alone, would be a challenging endeavo r.”)

(citing Walther , 977 F.2d at 162); LeBlanc v. Great Am. Ins. Co.

,

6 F.3d 836, 848 (1st Cir. 1993) (“[A] company’s overall employment

statistics will have little direct bearing on the s pecific

intentions of the emplo yer when dismissing a particular

individual.”). This insufficiency is especially true here because,

as the University argues, Scott failed to compare the persons hired19 We note that Scott does not argue that she attempted to

obtain this information or that she was prevented from doing so.

20 As the University argues, without such information,

nothing prevents us from surmising that Scott was the only or one

of the very few applicants for the five legal writing positions who

was over the age of forty. And this flaw is no less germane to her

data regarding the tenure-track professo rs who were hired during

the time period referred to by Scott. In fact, without information

regarding the applicant pool, one plausible explanation of Scott’s

hiring data )) and perhaps the on ly explanation appearing in the

record )) i s that provided by the University’s witness, Carolyn

Staton, the University’s Assoc iate Vice Chancellor for Academic

Affairs and former Dean of the Law School, who testified that “the

problem yo u might see with certain people who are coming in the

tenure trac[k] jobs being younger is that people who have been in

the profession a long time don’t like to take the fif ty, sixty,

seventy thousand dollar cut that they would have to take to become

a law teacher.”

-37- to the pool of qualified applicants when she presented this

purported statistical evidence of discriminatory hiring practice. 19

See Anderson v. Douglas & Lomason Co. , 26 F.3d 1277, 1286-87 (5th

Cir. 1994) (“Where plaintiffs use statistical evidence to challenge

an employer’s hiring practices, that evidence, to be probative of

discriminatory intent, must compare the r elevant portion of the

employer’s work force with the qualified population in the relevant

labor market.”); id

. at 1287 (“Actual applican t flow figures are

the preferred method by which to me asure an employer’s hiring

practices an d performance.”). Such an omission renders her

evidence invalid for purposes of rebutting the University’s reasons

for ranking Gullick over Scott and for raising an inference of

discrimination. 20

3-38-

At oral argument, Scott made much of the fact that Robertshaw

wrote down on her copy of Scott’s resume the dates that Scott

received her graduate degrees from the University of Mississippi,

arguing that this fact allows for a reasonable inference of age

discrimination. Scott claimed that the effect of this action was

exacerbated because Robertshaw dominated the search committee.

Robertshaw explained at trial that she asked Scott about these

dates to determine the relevancy of Scott’s course work to the

legal writing teaching position )) she “wanted to find out when

[Scott] had done her graduate work in English because the use of

multiple drafts and collaborative groups and the things that we

used in the [legal writing] program reall y didn’t develop until

about the early to t he mid 80s.” In denying the University’s

motion for judgment as a matter of law, the district court relied

on Robertshaw’s notation of these dates, finding that Robertshaw’s

testimony about her concerns of when Scott received h er advanced

English degrees “clearly raised the specter of age.” The court

further found that “the jury was entitled to believe Scott’s

argument that Robertshaw’s position as director of the legal

writing program would carry more weight with the other members of

the selection committee.”

The University argues that Robert shaw’s noting of the dates

Scott attended graduate school is no evidence at all of age

discrimination. The University points out that Robertshaw’s

explanation for asking Scott about the dates remained undisputed in-39-

the record. It emphasizes that age was never mentioned during any

of the committee meetings and that Robertshaw did not relate either

the graduation dates or her conversation with Scott about

collaborativ e groups methods to the other members. Finally, the

University counters Scott’s argument that Robertshaw dominated the

search committee by stressing that the search co mmittee was

composed of the dean of the law school, a tenured professor, and an

associate, tenure-track professor in addition to Robertsha w and

that the trial testimony of the other committee members revealed

that they felt that the hiring decision was just as important to

them as to Robertshaw.

At firs t blush, Robertshaw’s act of writing down the dates

Scott received her graduate degrees appears, as the district court

stated, to raise the specter of age. On further inspection,

however, we disagree with the district court. Viewing this

evidence in the light most favorable to Scott, perhaps the most the

jury could reasonably infer was that Robertshaw noted Scott’s

graduation dates on her resume as a rough indication of Scott’s

age. However, even if Robertshaw had noted Scott’s actual age on

her res ume, this single notation, without other evidence of its

import, is insufficient to support a reasonable inference of

discrimination. S ee Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d

1498, 1504 (10th Cir. 1996) (holding that a reasonable jury could

have concluded that age played determinative role in hiring process-40-

where emp loyer wrote down plaintiff’s and other job applicants’

ages, “sometimes underlining, circling or calculating ages on the

applicants’ resumes or other relevant documents,” and “admit[ted]

to underlining and circling things he thought were ‘important’ or

‘relevant’ about an applicant”). As the Eighth Circuit concluded

in a case that the University cites and we find persuasive on this

point:

Nor do we believe that the fact that the district manager

kne w Mr. Nelson’s age could furnish the basis for a

r easonable inference that his age was a basis f or his

termination. A fact finder may not simply convert a

condition that is necessary for a finding of liability

(here, knowledge of a plaintiff’s age) into one that is

sufficient for such a finding.

Nelson v. J.C. Penny Co., Inc., 75 F.3d 343, 345 (8th Cir.), cert.

denied

, - U.S. -, 117 S. Ct. 61,

- L. Ed. 2d

- (1996) (vacating the

jury verdict for plaintiff Nelson on his age discrimination claim

and remanding for entry of judgment in favor of the employer); see

also May v. Shuttl e, Inc. , 129 F.3d 165, 173 (D.C. Cir. 1998),

cert. denied, - U.S. -, 118 S. Ct. 2320, 141 L. Ed. 2d 695 (1998)

(explaining that supervisor’s knowledge of workers’ ages and how

much it cost the company to keep them employed was insufficient to

show unlawful motivation); Jang v. Biltmore Tire Co.

, 797 F.2d 486,

489 n.3 (7th Cir. 1986) (concluding that testimony that supervisor

asked plaintiff about his age “falls far short of constituting

direct proof of age discrimination”). Scott does not respond in

her brief to the arguments or cases advanced by the University,-41-

and, unearthing no case s suggesting an alternative legal

significance of Robertshaw’s actions, we conclude that Robertshaw’s

writing down these dates is insufficient, without more, to support

a finding that age was a motivating factor in the University’s

decision to hire Gullick over Scott.

4

Finally, Scott asserted at oral argument that the jury was

entitled to infer discrimination from the evidence that she was

treated differently from the other applicants in that the committee

did not call her references, did not tell her to bring a writing

sample to her interview, and did not take her to lunch when she was

interviewed. We can reject this last point in short order because

the record reveals that Scott was not the only interviewee not

taken out to lunch: Bush testified that the committee did not take

Duffy Graham, the last candidate interviewed by the committee, out

t o lunch. S ee Swanson

, 110 F.3d at 1187 (holding that p laintiff

had “presented no competent evidence from which the jury could

conclude . . . that illegal race discrimination motivated

[employer’s] decision to deny” pl aintiff an in-building parking

space where, among other things, white managers of his same level

were not provided a parking space). While Scott’s other two

statements are undisputed in the record, the following facts are

a lso undisputed. After ranking the candidates, Shelson first,

Gullick sec ond, and Scott third, the committee decided that only21 As we stated previously, Scott’s interview was on a

Thursday, and the committee meeting was on the following Mon day.

As we also noted previously, the only trial testimony regarding the

committee’s consideration of writing samples was Robertshaw’s

testimony that she read Scott’s writing samples at about the same

time she read Gullick’s and they did not affect her opinion of the

candidates’ relative rankings. No other committee member was asked

or testified about the effect of the delay in the committee’s

receipt of Scott’s writing samples.

-42- the top two candidates’ references would be called. After Shelson

declined the position, the Law School offered it to Gullick. The

record indicates that had Gullick refused the offer, the committee

would have ch ecked Scott’s references and offered Scott the

position if the reference check was satisfactory. Under these

circumstances, the fact that the co mmittee did not call Scott’s

references cannot support a reasonable inference of discrimination.

With respect to the writing samples, we note again that while

Scott was not informed )) as were the other interviewees )) at the time

her interview was scheduled that she needed to bring her samples to

the interview, she was told during her interview that she needed to

submit writing samples to the committee. 21 While the committee’s

failure to tell Scott to provide writing samples until the date of

her interview may support a reasonable inference that the committee

was less than conscientious about her application, it does not

represent even a mere scintilla of evidence of age discrimination.

See Rhodes

, 75 F.3d at 994 (“[I]f the evidence put forth by the

plaintiff to establish the prima facie case and to rebut the

employer’s reasons is not substan tial, a jury cannot reasonably-43-

infer discriminatory intent.”).

For all of the foregoing reasons, we conclude tha t Scott’s

evidence, taken as a whole, is insufficient to create a fact issue

as to whether each of the University’s stated reasons was what

actually motivated it and to create a reasonable inference that age

was a motivating factor in the University’s decision. S ee Rhodes

,

75 F.3d at 994; see also Louisiana Office of Community Servs. , 47

F.3d at 1448 (“While we or the jury might have made a different

employment decision, we sho uld not substitute our judgment of an

employee’s qualifications for the employer’s in the abs ence of

proof that the employer’s nondiscriminatory reasons are not

genuine. We are persuaded that this is precisely what the jury did

here .”); T exas Instruments

, 100 F.3d at 1186-87 (rejecting the

EEOC’s argument that the district court should not have “discounted

each of its type of evidence and ignored that, taken together, all

of the agency’s evidence bespoke pretext sufficiently to warrant a

jury trial” and instead opining that “‘[e]vidence ’ that does not

imply pretext taken alone does not do so when cumulated”). We

acc ordingly hold that the district court erred in denying the

University’s motion for judgment as a matter of law.

IV

Scott raises three evidentiary issues on appeal. First, she

claims that t he court erroneously excluded Baggett’s testimony

regarding the 1995 hiring. Second, she argues that the court-44-

erroneously excluded evidence of retaliation after Scott filed her

second amended complaint. Finally, Scott contends that the court

erred in excluding evidence about her claim of age discrimination

in the 1995 hiring. We address each of these rulings in turn.

A

Scott argues that she substantially complied with the

discovery rules with respect to Baggett’s testimony about the 1995

hiring and, therefore, the district court’s ruling excluding this

testimony on the grounds of failure to timely supplement was error.

Scott, who submitted Baggett’s affidavit regarding the 1995 hiring

less than six weeks before trial in a response to the University’s

partial summary judgment motion, does not dispute that she failed

to meet the applicable discovery deadlines. Instead, she contends

that she supplemented discovery a s soon as practicable after the

University made available the documents pertaining to the 1995

hiring on which Baggett based his opinion. The record reveals,

however, that prior to that Scott had not informed the University

that Baggett would be testifying regarding the 1995 hiring. We

therefore hold that the district court did not abuse its discretion

in excluding this testimony. See Hester v. CSX Transp., Inc. , 61

F.3d 382, 388 n. 11 (5th Cir. 1995); s ee also Alldread v. City of

Grenada , 988 F.2d 1425, 1434 (5th Cir. 1993) (explaining that the

district court has wide discretion in determining whether to

exclude expert testimon y due to failure to comply with discovery-45-

requirements).

B

Scott’s sec o nd amended complaint alleged certain acts of

retaliation by the University. Less than three weeks before trial,

Scott informed the University that she planned to present

additional evidence of retaliation arising out of her working

environment at the library. She sought to amend her complaint to

add these charges of retaliation. In response to the University’s

subsequent motion in li mine on this point, the district court

excluded all evidence of retaliation occurring after Scot t filed

her second amended complaint.

Scott states in her brief that she “was severely prejudiced by

denial of an opportunity to put on a substantial part of her proof

of retaliatory conduct.” In her reply brief, she appears to claim

that the University had sufficient notice of at least some of these

additional alleged acts of retaliation because she had included

them in her response to the University’s partial summary judgment

motion, which she filed approximately five weeks before trial. She

also suggests that she did not need to amend her complaint to add

charges of retaliation because the retaliat ion in her work

environment at the library continued to the day of trial, arguing

that “amending the complaint after every inci dent in the Law

Library was not feasible and [was] a waste of judicial resources.”

Scott presents no other explanation why she believes the district

court erred in exclud ing the evidence of retaliation occurring22 Based on our review of the cases Scott cites, it appears

that she intended to cite 29 C .F.R. § 1613.513, rather than 29

C.F.R. § 16.513, which does not exist in the federal regulations.

-46- after she filed her second amended complaint. Given the time frame

in which Scott presented these alleged additional acts of

retaliation, we cannot conclude that the district court abused its

discretion in excluding evidence of the acts not included in her

second amended complaint. S ee Information Resources Inc. v. United

States

, 996 F.2d 780, 785 (5th Cir. 1993) (holding that district

court did not abuse its discretion in excluding claim when party

delayed supplementing discove ry responses to include the claim

until shortly before trial); EEOC v. Manville Sales Corp.

, 27 F.3d

1089, 1092-93 (5th Cir. 1994) (stating that we review evidentiary

rulings only for abuse of discretion).

C

Scott lastly contends that the district court erred in

excluding testimony about age discrimination in the 1995 hiring.

The district court excluded all testimony pertaining to this claim

because Scott had not presented the claim to the EEOC. Citing “29

C.F.R. § 16.513 (1988),” 22 Scott argues that amendments to the EEOC

re gulations have eliminated the exhaustion requirements for age

discrimination cases, citing several cases that she claims support

this proposition. She also contends that it was not necessary to

file this claim with the EEOC because the age discrimination in the

1995 hiring was “intricately intertwined” with t he 1993 hiring,-47-

which was already being litigated; she argues that, under this

circumstance, the district court has “anc illary jurisdiction” to

hear the claim.

The University counters that a plaintiff must submit a charge

of age discrimination to the EEOC prior to filing a lawsuit raising

an ADEA claim. The University distinguishes the cases cited by

Scott, and the regulations cited therein, as applying t o only

federal and not state government agencies and their employees.

We first rej ect as incorrect Scott’s assertion that an ADEA

plaintiff need not exhaust administrative remedies. As we have

previously held, “[a] charge of discrimination must be timely filed

with the EEOC prior to the initiation of a civil action under the

ADEA.” C lark v. Resistoflex Co., Div. of Unidynamics Corp.

, 854

F.2d 76 2, 765 (5th Cir. 1988) (citing 29 U.S.C. § 626(d), which

provides that “[n]o civil action may be commenced by an individual

. . . a charge alleging unlawful discrimination has been filed with

the Equal Employment Opportunity Comm ission”). Moreover, as the

University correctly points out, the cases cite d by Scott as

supporting the elimination of the EEOC filing requirement are

inapposite: those cases concern the interpretation and application

of regulations that are sections of 29 C.F.R. Part 1613 (since

redesignated as Part 1614), which governs complaints filed by

federal employees only. S ee Bak v. Postal Serv.

, 52 F.3d 241, 243

(9th Cir. 1995), cert. denied sub nom. Bak v. Runyon , ___U.S.___,-48-

118 S. Ct. 374, 139 L. Ed. 2d 291 (1997 ) (citing 29 C.F.R. §

1613.513); Adler v. Espy

, 35 F.3d 263, 264 (7th Cir. 1994) (citing

29 C.F.R. § 1613.215(a)(3)); Bornholdt v. Brady

, 869 F.2d 57, 63

(2d Cir. 1989) (citing 29 C.F.R. § 1613.513); see also 62 Fed. Reg.

17,041, 17,043 (1997) (“The Equal Employment Opportunity

Commission’s regulations governing discrimination complaints filed

by Federal employees, formerly found at 29 C.F.R. Part 1613, are

now found at 29 C.F.R. Part 1614.”).

We also reject Scott’s contention that the district court

could properly entertain the 1995 discrimination claim because it

was intricately intertwined with the 1993 discrimination claim.

While we have held that “a district court has ‘ancillary

jurisdiction’ to hear a claim of retaliation, even though not filed

with the EEOC, ‘when it grows out of an administrative charge that

is properly before the court,’” see Barrow v. New Orleans Steamship

Ass’n

, 932 F.2d 473, 479 (5th Cir. 1991) (quoting G upta v. East

Tex. State Univ ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)),

we have not so held wit h respect to discrimination claims. S ee

Gupta

, 65 4 F.2d at 414 (indicating that this rule is limited to

retaliation claims due to the special nature of such claims).

As the district court correctly stated, Scott never presented

her ADEA claim concerning age discrimination in the 1995 hiring to

the EEOC. We accordingly hold that the district court did not err

in excluding testimony regarding her age discrimination claim for-49-

the 1995 hiring.

VI

For the foregoing reasons, the decision of the district court

denying the University’s motion for judgment as a matter of law is

REVERSED and judgment is hereby RENDERED in the University’s favor.