FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 07/20/98 

 THOMAS K. KAHN 

 CLERK

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 97-6729

 

D. C. Docket No.95-CV-2380

ARTHUR ROSS,

Plaintiff-Appellant,

versus 

RHODES FURNITURE, INCORPORATED, an Alabama Corporation, d.b.a.

Marks Fitzgerald,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Northern District of Alabama

 

(July 20, 1998)

Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior

District Judge.

_________________

*Honorable James C. Paine, Senior U.S. District Judge for the

Southern District of Florida, sitting by designation.

PAINE, Senior District Judge:

Arthur Ross appeals the district court’s setting aside a jury

verdict that awarded him more than thirty seven thousand dollars in

back pay. We reverse and remand with instructions to the district
2

court to reinstate and enter judgment on the jury’s verdict.

First, the record on appeal is insufficient to permit an evaluation

of whether the trial court erred when it granted the defendant’s

renewed motion for judgment as a matter of law. Second, our de

novo review of the trial testimony convinces us that the jury could

have reasonably disbelieved the defendant’s proffered reasons for

firing Ross. 

In 1987, Ross, who is an African-American, was hired by Marks

Fitzgerald to help deliver furniture. In 1990, Ross began working

for Rhodes Furniture when that company acquired Marks Fitzgerald.

Ross performed well and climbed the company ladder at Rhodes,

ultimately rising to the position of delivery manager. R. 2-26-27.

Ross was never disciplined before he was accused of and fired for

soliciting tips. R. 2-30.

On December 23, 1993, Ross was supervising the loading dock at

Rhodes’s warehouse. He noticed that customers’ tipping of

employees for loading furniture was slowing down operations. Ross

testified that, to remedy the situation, he made a tip box and

placed it near the loading dock. R. 2-31-33. Ross further

testified that he immediately removed the box from its perch

outside the loading dock when the receptionist informed him that a

customer had complained about the tip box. R. 2-35.
3

Ross finished work on December 23rd and went on Christmas

vacation. When he returned a week later to pick up his paycheck,

Ross noticed that Ricky Mann (Mann), a white male, was serving as

the delivery manager. Until that time, Mann had been a driver for

Rhodes and, at times, under Ross’s supervision. On January 5,

1994, Ross returned from vacation to find that he was fired and

that Mann had replaced him. R.2-37, 39.

 

Upon being fired, Ross filed a charge of discrimination with

the Equal Employment Opportunity Commission (EEOC). Ross claimed

that he was fired because he is black. He also charged that tip

solicitation was Rhodes’s pretext for discriminatory discharge.

Pl.’s Trial Ex. 2 (Ross’s EEOC charge). The EEOC issued Ross a

right to sue letter. Ross then filed suit in the United States

District Court for the Northern District of Alabama, seeking relief

under Title VII and Section 1981. 

Ross alleged that “[t]he defendant discriminated on the basis

of race against the plaintiff with respect to discharge,

discipline[,] and other terms of employment.” Pl.’s Compl. at 2,

¶6. The trial judge denied Rhodes’s motion for summary judgment,

and the case went to trial. Upon deliberation, the jury awarded

Ross $37,341.85 in back pay. 

After moving for and receiving an extension of time, Rhodes

filed a renewed motion for judgment as a matter of law under Rule
1

 In the present case, the Plaintiff challenges the entry of

jnov on the merits. Accordingly, whether the Plaintiff’s failure

to object to Defendant’s Rule 50(b) motion on the ground that the

basis of Defendant’s Rule 50(b) motion was waived by Defendant’s

inadequate Rule 50(a) motion, constitutes waiver of Plaintiff’s

right to challenge the district court’s entry of jnov pursuant to

Defendant’s Rule 50(b) motion, is not before this court because

the Plaintiff has not raised the waiver issue on appeal. Cf.

Williams v. Runyon, 130 F.3d 568 (3d Cir. 1997) (holding that

where a party did not object to a movant’s Rule 50(b)motion

specifically on the grounds that the issue was waived by an

inadequate Rule 50(a) motion, the party’s right to object on that

basis is itself waived); Whelan v. Abell, 48 F.3d 1247 (D.C. Cir.

1995) (holding that failure to assert an objection to a Rule

50(b) motion constitutes waiver of the objection). 

2

 At the close of Ross’s evidence, defense counsel said,

“Your Honor, I think we have a motion ready.” R. 2-155. A

discussion was then held off the record. Id. Rule 50(a)(2)

provides:

Motions for judgment as a matter of law may

be made at any time before submission of the

case to the jury. Such a motion shall

4

50(b). Rhodes also moved for a new trial. Apparently, Ross

opposed neither motion. See Trial Docket. Chief Judge Pointer

granted Rhodes’s renewed motion for judgment as a matter of law,

set aside the jury’s verdict, and entered judgment for Rhodes. He

denied as moot Rhodes’s motion for a new trial. See Trial Docket

No. 54. Ross appealed. 

At oral argument to the appellate panel, counsel agreed that

Rhodes moved for judgment as a matter of law both at the close of

Ross’s case and at the close of all the evidence.1

 The parties did

not, however, identify what grounds Rhodes offered in support of

its pre-verdict motions under Rule 50(a). The record on appeal is

also silent on this point. 2

 The abbreviated record prevents any
specify the judgment sought and the law and

facts on which the moving party is entitled

to the judgment.

In this case, the record on appeal does not specify the

judgment sought and the law and facts on which Rhodes should have

been entitled to the judgment. 

5

meaningful appellate review of whether Ross was afforded his

Seventh Amendment right to cure evidentiary deficiencies before his

case went to the jury. Rule 50 was designed to protect that right,

and therefore, we adhere to its procedural mandates. See Crawford

v. Andrew Sys., Inc., 39 F.3d 1151, 1154 (11th Cir. 1994)(holding

that a district judge has no authority to grant a Rule 50(b) motion

when no Rule 50(a) is made) and see also Sims’ Crane Serv., Inc. v.

Ideal Steel Prods., 800 F.2d 1553, 1557 (11th Cir.1986) (noting our

attention to both the purpose and the wording of Rule 50(b)). 

Rule 50 motions must made on the record. That rule is not

unique to this circuit. See Keith v. Truck Stops Corp. of Am., 909

F.2d 743, 744 (3rd Cir. 1990) (“the better practice would be for

such motions to be made on the record”). An adequate record may

allow us to excuse technical non-compliance with Rule 50. See

MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 898 (5th

Cir. 1995). More importantly, an adequate record on appeal reveals

whether a plaintiff’s Seventh Amendment rights have been ambushed.

It also controls the evidentiary standard we apply when reviewing

a district court’s decision to set aside a jury verdict. The
6

standard of review is de novo. General American Life Insurance

Company v. AmSouth Bank, 100 F.3d 893, 899 (11th Cir. 1996);

Bateman v. Mnemonics, 79 F.3d 1532 (11th Cir. 1996)(district

judge’s resolution of post trial motions renewed de novo).

When reviewing a trial court’s resolution of a Rule 50(b)

motion, we compare the grounds originally argued by the movant in

its Rule 50(a) motion with those cited by the trial court in

granting a renewed motion for judgment as a matter of law. See

National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545(11th

Cir. 1986); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 845-46 (5th

Cir. 1975). If the grounds argued in a motion under Rule 50(a) are

“closely related” to those argued in a Rule 50(b) motion, then

setting aside a jury’s verdict is no surprise to the non-movant. No

Seventh Amendment right is ambushed. National Indus., Inc. v.

Sharon Steel Corp., 781 F.2d at 1549-50. But if the new and old

grounds vary greatly, then a trial judge may not rely on the new

grounds to set aside the jury’s verdict. See Sulmeyer v. Coca Cola

Co., 515 F.2d at 845-46. If they do vary greatly and the trial

court relies upon the new grounds to set aside the jury’s verdict,

we will reverse. See id.

In National Industries, the record on appeal enabled us to

conclude that the new grounds in the Rule 50(b) motion constituted

no surprise to the non-movant because the new and old grounds were

“closely related.” See National Indus., Inc. v. Sharon Steel
7

Corp., 781 F.2d at 1549. In this case, however, we are unable to

evaluate whether the grounds in Rhodes’s Rule 50(a) motions were

substantially different from those asserted in its Rule 50(b)

motion. Hence, we cannot ascertain if this appeal is more like

National Industries, where “[t]he difference . . . between the

matters raised in the motion for judgment n.o.v. and the earlier

motion is not so great[,]” or whether it is akin to Sulmeyer v.

Coca Cola Company and Wilson v. Attaway, 757 F.2d 1227 (11th Cir.

1985), where the matters varied greatly and required reversal. 

We see no difference between a record that omits any mention

of a Rule 50(a) motion and one that is mute concerning the grounds

argued in support of the Rule 50(a) motion. Both deficiencies go

to the heart of our concerns that a plaintiff’s Seventh Amendment

rights not be ambushed and that a plaintiff be allowed to cure

evidentiary deficiencies before the jury retires.

The record before us makes it impossible to determine whether

the trial court should be affirmed under the “flexible approach” we

took in National Industries or whether we should follow a stricter

approach as we did in Sulmeyer and Wilson. Accordingly, we must

act in an abundance of caution towards preserving the sanctity of

a jury’s verdict and vacate the trial judge’s decision. Cf. Dunn

v. H.K. Porter Co., Inc., 602 F.2d 1105, 1113 (3rd Cir. 1979)

(vacating judgment of district court because “[t]he record before
8

us is not sufficiently complete to permit adequate appellate review

of the district court’s action.”). Instead of culling the record

for substantial evidence to support the verdict (as we would

normally do), we will look for any evidence that would sustain the

jury’s decision. We employ the “any evidence” standard because we

are unable to ascertain whether Ross was sandbagged by new

arguments in Rhodes’s motion under Rule 50(b). Cf. Wilson v.

Attaway, 757 F.2d at 1237 (applying the “any evidence” standard

when no Rule 50(a) motion was made). 

Applying this “any evidence” standard, we conclude that the

jury verdict was supported by the evidence, and therefore, it must

be reinstated. We review de novo a district court’s determination

of a Rule 50 (b) motion. See, e.g., Combs v. Plantation Patterns,

106 F.3d 1519, 1526 (11th Cir. 1997). In doing so, “we must

consider all the evidence in the light most favorable to [the

nonmovant] and determine ‘whether or not reasonable jurors could

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

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

1993)). 

In his quest for relief, Ross must clear several evidentiary

hurdles. He must make a prima facie case. Id. at 1528. Ross made

a prima facie case for discriminatory discharge. As an AfricanAmerican, he is a member of a protected class. Given the glowing
9

evaluations Ross received prior to being discharged, he was

certainly qualified to serve as Rhodes’s delivery manager. Rhodes

fired Ross and replaced him with a non-minority, Ricky Mann. That

is a prima facie case. See Jones v. Lumberjack Meats, Inc., 680

F.2d 98, 101 (11th Cir. 1982)(iterating the elements of

discriminatory discharge). 

Second, once Rhodes produced legitimate non-discriminatory

reasons for its adverse employment action, Ross must prove his

case. Combs v. Plantation Patterns, 106 F.3d at 1528. Rhodes

satisfied its intermediate burden of production when it claimed

that Ross was fired for soliciting tips. Ross then had to produce

evidence from which the jury could have reasonably inferred that

Ross was fired because he is black. See id.

Ross could employ either of two methods to carry his ultimate

burden of proof. He could adduce evidence that might directly

establish discrimination. Alternatively, he could point to enough

evidence to permit the jury to reasonably disbelieve Rhodes’s

proffered reason that it fired Ross for soliciting tips. See Texas

Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S.

Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). We must determine if Ross

succeeded under either method.
10

Reviewing the first “direct” method--whether Ross’s evidence

could have persuaded the jury that discrimination motivated his

firing--the court examines whether Ross produced any evidence

beyond his prima facie case. Ross’s prima facie case may certainly

be considered in determining whether he carried his ultimate

burden. See Combs v. Plantation Patterns, 106 F.3d at 1528 (citing

Burdine). Although a plaintiff must both present a prima facie

case and show pretext, the showing of pretext need not necessarily

involve further evidence; the evidence in a prima facie case might

be strong enough to also show pretext. See id. at 1530. In this

case, however, Ross needed additional evidence beyond that which

established his prima facie case. He needed trial testimony if he

was to carry his burden and survive Rhodes’s Rule 50 motions.

Ross could carry his burden via the second method by producing

“any evidence that, if believed, sustains his burden of proof[,]”

Swanson v. General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir.

1997), “to demonstrate the existence of a genuine issue of fact as

to the truth of” Rhodes’s explanation that it fired him for

soliciting tips. Combs v. Plantation Patterns, 106 F.3d at 1529.

If Ross succeeded, he was entitled to survive Rhodes’s Rule 50

motions. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.

1989). Applying the “any evidence” standard required by Wilson v.

Attaway, we conclude that Ross succeeded via the second method: he
11

presented evidence which permitted the jury to reasonably

disbelieve Rhodes’s proffered reason. 

One segment of Ross’s trial testimony is especially

compelling. Ross testified that Ron Kirkpatrick--the supervisor

who was instrumental in Rhodes’s decision to fire Ross for

soliciting tips--had himself received tips. R. 2-48 at ¶¶ 15-17.

Yet Kirkland decided to fire Ross, an African-American, and replace

him with a non-minority. The jury could have chosen to reject

Kirkland and Sweeney’s testimony, i.e., that they decided to fire

Ross for soliciting tips, as untrue. Although we hold that this

testimony satisfies Wilson v. Attaway’s “any evidence” standard,

Ross presented additional evidence, which satisfies the more

demanding “substantial evidence” standard. Ross further testified

that sometime prior to his being fired, Kirkland pointed to Ross

and said “You see that one over there, I am going to get rid of

him.” R. 2-55 at ¶¶ 21-23. Kirkland made that statement to a

white man. Id. at ¶¶ 24, 25. Ross contends that Kirkland’s

reference to “that one over there” evinced racial animus by a

decision maker who would ultimately fire him.

Ross also testified that sometime in 1990, Kevin Sweeney said

“I never seen as many blacks in this building except in a Tarzan

movie.” R. 2-117, at ¶¶ 4-7. Even though Kirkland and Sweeney

made their comments long before they fired Ross, that did not
12

prevent Ross from using these statements as evidence to persuade

the jury that it should disbelieve Rhodes’s proffered reason. See

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 (11th Cir.

1998) (citing Allen v. County of Montgomery, 788 F.2d 1485, 1488

(11th Cir. 1986)).

The district judge rejected the Tarzan remark as an “isolated

general racial remark,” unable to aid Ross in proving his case.

The trial judge erred. Although we have repeatedly held that such

comments are not direct evidence of discrimination because they are

either too remote in time or too attenuated because they were not

directed at the plaintiff, see, e.g., Evans v. McClain of Ga.,

Inc., 131 F.3d 957 (11th Cir.1997), we have not held that such

comments can never constitute circumstantial evidence of

discrimination. Other Courts of Appeals have indicated that such

comments may provide circumstantial evidence to support an

inference of discrimination. E.g., Walden v. Georgia-Pacific

Corp., 126 F.3d 506, 521 (3rd Cir. 1997) (“Although stray remarks

by non-decisionmakers alone are insufficient to establish

discriminatory intent, we have held that such remarks can still

constitute evidence of the atmosphere in which the employment

decision was carried out.”). 

Ross’s case relied on circumstantial evidence. Even the

district judge so concluded. That is clear from the trial court’s
13

use of McDonnell Douglas’s burden-shifting analysis, which does not

apply in direct evidence cases. See Massaro v. Mainlands Sects. 1&2

Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993). Because

Ross’s case turned on circumstantial evidence, the proper inquiry

is whether Sweeney’s “Tarzan” remark and Kirkland’s remark, when

read in conjunction with the entire record, are circumstantial

evidence of those decisionmakers’ discriminatory attitude. If so,

the court must then determine whether such circumstantial evidence,

along with other evidence (including Ross’s prima facie case),

might lead a reasonable jury to disbelieve Rhodes’s proffered

reason for firing Ross. We conclude that these comments,

considered together with the fact that Kirkland had received tips,

support the jury’s rejecting Rhodes’s proffered explanation for

firing Ross. 

In our view, Ross’s evidence created a genuine issue of fact

concerning the truth of Rhodes’s proffered reason. The jury could

have found that the tipping episode was a pretext for firing Ross.

That is enough because, consistent with Combs, once Ross was able

to present evidence from which a jury reasonably could have

disbelieved Rhodes’ proffered explanation for its action, it is the

jury’s job (not ours) to decide whether Rhodes acted with

discriminatory intent. See Combs v. Plantation Patterns, 106 F.3d

at 153 (“[O]ne way a plaintiff may succeed in establishing

discrimination is by showing that the employer’s proffered
14

explanations are not credible. When that happens, the plaintiff

may or may not ultimately prevail in the litigation, because the

factfinder may or may not choose to make the permissible inference

of discrimination.”). Here, the jury made that inference, and it

was a permissible one. Because Ross presented enough evidence from

which the jury could find pretext, the jury’s final, permissible

inference as to the question of Rhodes’s intent should be left

undisturbed. Therefore, the judgment of the district court is

REVERSED and the case is REMANDED to the district court with

instructions to reinstate the jury verdict and to enter judgment in

accordance therewith, with allowance of interest from the date the

jury rendered its verdict.