United States Court of Appeals,

                                Eleventh Circuit.

                                  No. 94-4769.

                   Paul ISENBERGH, Plaintiff-Appellant,

                                          v.

  KNIGHT-RIDDER NEWSPAPER SALES, INCORPORATED, a/k/a Newspapers
First, Inc., Knight-Ridder, Inc., Defendants-Appellees.

                                 June 11, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 91-1596-CIV-UUB), Jacob Mishler, Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL*, Senior
Circuit Judge.

       ENGEL, Senior Circuit Judge:

       Plaintiff Paul Isenbergh appeals the district court's grant of

judgment as a matter of law for defendant Knight-Ridder Newspaper

Sales, Inc. ("KRNS"), a/k/a Newspapers First, Inc. ("Newspapers

First"), in Isenbergh's suit under the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.                Isenbergh claims

that Newspapers First discriminated against him because of his age

in selecting the manager for the company's Miami sales office.

After trial, a jury returned a verdict in favor of Isenbergh and

awarded him $250,000 in damages.               Newspapers First, which earlier

had submitted a motion for judgment as a matter of law that the

district court denied, renewed its motion under Rule 50(b) of the

Federal Rules of Civil Procedure.               The district court granted the

motion.      Because we agree that Isenbergh did not produce evidence

from       which   the   jury     could        reasonably   infer   intentional

       *
      Honorable Albert J. Engel, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.
discrimination based on age, we affirm.

                                         I.

       In 1990, KRNS merged with Million Market Newspapers/Times

Mirror National Marketing, Inc. ("MMTM") to form Newspapers First.

At the time of the merger, Isenbergh, sixty years old, was the

manager of KRNS's Miami sales office.                 Larry Malloy, forty-four

years old, was the manager of MMTM's Miami sales office.                    Both were

candidates, along with eight other KRNS and MMTM managers from

around the country, for the new position of manager of Newspapers

First's Miami sales office.              To select the new manager, King

Anthony, the former president of MMTM and current president of

Newspapers First, and John Kosanke, the former president of KRNS

and    current      executive      vice-president      of     Newspapers      First,

interviewed the ten candidates.             The only real competition for the

new position, however, was apparently between Isenbergh and Malloy,

because Newspapers First did not want to move a manager from

another part of the country to Miami.                 In conjunction with the

interviews,      Anthony    and    Kosanke     used   an   "alternation      ranking

system" to rate the candidates.               KRNS had never used this system

before   to   make    personnel     decisions.        Under    the   system,      each

candidate     received     two    ordinal     rankings:     one     based    on   past

management performance and one based on the interview.                       The two

rankings were averaged to obtain each candidate's overall score.

       When the nine candidates who had worked at KRNS or MMTM for

more   than   six    months      were   ranked    according    to    this    system,

Isenbergh finished eighth. Malloy finished second. Three managers

over age fifty—including one who was sixty-three years old—finished
higher than Isenbergh.              Malloy got the job, and Isenbergh was

offered the chance to interview for a sales position in Miami.                       He

chose to take early retirement instead.

      Isenbergh testified that the atmosphere at his interview was

"cold" and that Anthony was on the phone most of the time.                          His

interview allegedly lasted only a half-hour, whereas Malloy's was

a   full    hour,   as   all   of    the    interviews    were      planned    to   be.

Newspapers First presented evidence challenging Isenbergh's version

of what happened at the interview.

      Isenbergh worked for KRNS from the late 1960s until 1990,

mostly as a salesman.           He became a vice-president in 1984.                  In

1986, he won the praise of Kosanke by selling an advertising

package to Walt Disney World.               Isenbergh's competitors for the

account included a newspaper whose sales were handled by Malloy.

The   parties       dispute    the    significance       of    this    transaction.

Isenbergh characterizes it as evidence of his good job performance

in the past and of his superior qualification, relative to Malloy,

for   the    managerial       job.     Newspapers    First       deems   it    to    be

irrelevant, because it involved sales, not management, and because

Isenbergh's newspaper was able to offer Walt Disney World a lower

advertising rate than was Malloy's newspaper.

      There is conflicting evidence about how Isenbergh was viewed

within the company and about his qualifications as a manager.

Isenbergh       points         to     his      annual         pay     raises        and

management-by-objective bonuses that were approved by Kosanke, as

well as to the lack of a paper trail of criticism, as evidence of

his perceived competence.              He further points to testimony by
Kosanke that Isenbergh was a "seasoned manager" and a "satisfactory

manager."     Kosanke also testified, however, that Isenbergh was a

"lone ranger" and was not a "team player."          Isenbergh argues that

his experience running newspaper offices of up to five people and

commanding a department of about sixty men while he was in the Navy

qualified   him   as   a   manager.    Newspapers   First    counters   that

Isenbergh's job at KRNS entailed little management and that for the

management Isenbergh did do, he was criticized by Kosanke.                It

stresses Malloy's extensive management experience and argues that

he was better suited for the new job than Isenbergh.

                                      II.

                                      A.

      We review de novo the district court's grant of judgment as

a matter of law.       Daniel v. City of Tampa, 

, 549 (11th

Cir.1994), cert. denied, --- U.S. ----, 

, 

(1995).     In other words, we apply the same standard as that

applied by the district court.         Carter v. City of Miami, 

, 581 (11th Cir.1989).      In considering a motion for judgment as

a matter of law, a court must view all the evidence in the light

most favorable to the nonmoving party and draw all reasonable

inferences in favor of the nonmoving party.         

should

be granted only if upon such consideration, the court finds that

reasonable people in the exercise of impartial judgment could not

arrive at a contrary verdict.         

may not weigh the

evidence or decide the credibility of witnesses.            Watts v. Great

Atl. & Pac. Tea Co., 

, 310 (11th Cir.1988) (quoting

Boeing Co. v. Shipman, 

, 375 (5th Cir.1969) (en banc)).
The nonmoving party must provide more than a mere scintilla of

evidence to survive a motion for judgment as a matter of law;

"there must be a substantial conflict in evidence to support a jury

question."   

.

      Newspapers First argues that judgment as a matter of law is

appropriate in age discrimination cases more often than in other

cases because in age discrimination cases juries tend to return

verdicts based on sympathy rather than law.            Certainly it is true

that in some age discrimination cases, "sympathy for the plaintiff

may present an overriding but impermissible factor in a jury

verdict for plaintiff."      Chappell v. GTE Prods. Corp., 

, 265 (6th Cir.1986), cert. denied, 

, 

, 

(1987).      If there can be no reasonable dispute

as to the facts of the case and the inferences to be drawn from

them, judgment as a matter of law is of course applicable to

prevent a jury verdict based purely on sympathy.                   The legal

standard for when to grant judgment as a matter of law in age

discrimination cases, however, is no different from that in other

cases:     whether reasonable people could arrive at a contrary

verdict.     In   fact,   this   court   has   cautioned      against   taking

employment discrimination cases away from the jury.             See Batey v.

Stone, 

, 1336 (11th Cir.1994) (noting that summary

judgment is often inappropriate in employment discrimination cases

because the factual inquiry involves an examination of motive and

intent);   Hairston v. Gainesville Sun Publishing Co., 

,

921 (11th Cir.1993) (noting that summary judgment is "generally

unsuitable   in   Title   VII    cases   in    which    the   plaintiff   has
established a prima facie case").

      The fact that the district court judge allowed the question

of Newspapers First's liability to go to the jury before granting

judgment as a matter of law does not affect our review of the

judgment.     Before the 1991 amendment to Rule 50, a Rule 50 motion

before the verdict was a "motion for directed verdict," and a Rule

50   motion    after   the    verdict     was   a   "motion   for   judgment

notwithstanding the verdict."           Now, both are termed "motion for

judgment as a matter of law."      The Advisory Committee on Rules has

explained that one reason for the change in terminology was to

express "the common identity of the two motions made at different

times in the proceeding."      Fed.R.Civ.P. 50(a) advisory committee's

note on 1991 amendment.       Furthermore, our cases have acknowledged

that the standard of review for a judgment notwithstanding the

verdict is the same as that for a directed verdict.           E.g., Lamb v.

Sears, Roebuck & Co.,        

, 1187 (11th Cir.1993).          The

district court's grant of Newspapers First's motion for judgment as

a matter of law after the jury verdict under Rule 50(b) was not

inconsistent with its denial of Newspapers First's motion for

judgment as a matter of law before the verdict under Rule 50(a).

As the Advisory Committee has explained,

     Often it appears to the court ... that a motion for judgment
     as a matter of law made at the close of the evidence should be
     reserved for a post-verdict decision. This is so because a
     jury verdict for the moving party moots the issue and because
     a preverdict ruling gambles that a reversal may result in a
     new trial that might have been avoided. For these reasons,
     the court may often wisely decline to rule on a motion for
     judgment as a matter of law made at the close of the
     evidence....

Fed.R.Civ.P. 50(b) advisory committee's note on 1991 amendment.
The district court in this case took such a prudent course, which

in no way affects our analysis of whether its grant of the motion

after the verdict was correct.

                                           B.

        We look first to see whether Isenbergh has presented a prima

facie     case       of    discrimination.      A    plaintiff     alleging    age

discrimination under the ADEA may choose one of three ways to

establish        a    prima     facie   case:       (1)   direct   evidence     of

discriminatory            intent;    (2)   statistical    proof    of    disparate

treatment;       or (3) meeting a test such as that set out in
                                                             McDonnell

Douglas Corp. v. Green, 

, 

, 

(1973).     See Carter v. City of Miami, 

, 581 (11th

Cir.1989).

        In McDonnell Douglas, the Supreme Court articulated the four

elements a plaintiff must show in order to establish a prima facie

case of employment discrimination:

     (i) that he belongs to a [protected class];      (ii) that he
     applied and was qualified for a job for which the employer was
     seeking applicants; (iii) that, despite his qualifications,
     he was rejected;    and (iv) that, after his rejection, the
     position remained open and the employer continued to seek
     applicants from persons of complainant's qualifications.

McDonnell 

, 93 S.Ct. at 1824.                   The Supreme

Court intended this framework to be flexible, see 

n. 

n. 13, rather than "mechanized, or ritualistic,"

United States Postal Serv. Bd. of Governors v. Aikens, 

, 715, 

, 1482, 

(1983) (quoting

Furnco Constr. Corp. v. Waters, 

, 577, 

,

2949, 

(1978)).              This court has enunciated various

reformulations of the McDonnell Douglas test.                  For example, in
Carter, we applied a variation of the McDonnell Douglas                          test

requiring that a plaintiff show the following elements to establish

a prima facie case under the ADEA:

     (1) that he is a member of the protected group;   (2) that
     adverse employment action was taken against him, e.g.
     discharge, demotion, or failure to hire;   (3) that he was
     replaced by a person outside the protected group; and (4)
     that he was qualified for the position for which he was
     rejected.

(footnote omitted).1                     In    Carter, the

plaintiff had been fired and replaced by a younger employee.                      In

Earley    v.    Champion      International      Corp.,   

  (11th

Cir.1990), we set forth a slightly different variation of the

McDonnell Douglas test in a case involving a "reduction in force."

The plaintiff had to show

     (1) that he was in a protected age group and was adversely
     affected by an employment decision; (2) that he was qualified
     for his current position or to assume another position at the
     time of discharge or demotion; and (3) evidence by which a
     fact finder might reasonably conclude that the employer
     intended to discriminate on the basis of age in reaching the
     decision at issue.

.

         We    have    followed     the   Supreme   Court's     command   that   the

application of any test for establishing a prima facie case be

flexible.      E.g., 

n. 11;              see also Pace v.

Southern       Ry.    Sys.,   

,      1387   (11th    Cir.)   ("The

particularly         amorphous    nature    of   age    discrimination    counsels

     1
      An ADEA plaintiff need not show that the person selected
for the job was younger than 40, even though ADEA protection
begins at that age. See, e.g., Pace v. Southern Ry. Sys., 

, 1387 (11th Cir.) ("Because of the value of experience
rarely are sixty-year-olds replaced by those under forty."
(quoting McCorstin v. United States Steel Corp., 

,
754 (5th Cir.1980))), cert. denied, 

, 

,

(1983).
against rigid application of a McDonnell Douglas[-type] test."),

cert. denied, 

, 

, 

(1983).

Noting the difficulty of tailoring the McDonnell Douglas test to a

specific case, we have held that the essence of any prima facie

case test is simply "whether the plaintiff has presented sufficient

evidence to provide a basis for an inference that age was a factor

in the employment decision."          

.              Any

particular test that a court chooses to use in evaluating this

question is merely a "tool" to facilitate this evaluation.                

court treated this case as a "failure to hire"

case, as opposed to a "reduction in force" case.               Although, as

discussed   above,   case    law   suggests    that      the   standard    for

establishing   a   prima   facie   case   depends   on   whether   the    case

concerns a reduction in force as opposed to a termination or a

failure to hire, compare 

(listing prima

facie case criteria for reduction-in-force cases), with 

(listing prima facie case criteria for termination and

failure-to-hire cases), the instant appeal demonstrates why, as we

noted in Pace, employment discrimination cases are not easily

categorized and why any prima facie case test must be flexible.             In

a sense, the position of manager of Newspapers First's Miami office

was a new job as a result of the merger of KRNS and MMTM, and

Isenbergh's and Malloy's previous positions disappeared. From this

viewpoint, the case is one of a failure to hire.                Because the

candidates considered for this "new" position, however, were all

from within the two merging companies, the situation was not the

same as in a standard failure-to-hire case. In essence, because of
the merger, there was a reduction in force from two Miami managers

to one.      In deciding whether Isenbergh has established a prima

facie case, we need not crudely categorize the facts as involving

either a failure to hire or a reduction in force.                 Rather, we

examine the facts of the case and decide "whether the plaintiff has

presented sufficient evidence to provide a basis for an inference

that age was a factor in the employment decision."         

.

       If Isenbergh has succeeded in presenting a prima facie case,

we then examine whether Newspapers First has satisfied its burden

of producing evidence that the hiring of Malloy over Isenbergh was

based on some "legitimate, nondiscriminatory reason."         Texas Dep't

of Community Affairs v. Burdine, 

, 254, 

,

1094, 

(1981).       This burden on the employer is one of

production, not persuasion.       St. Mary's Honor Center v. Hicks, 

, 510-11, 

, 2749, 

(1993).           If

the burden is met, the McDonnell Douglas framework "drops out" of

the case, leaving the jury to decide the ultimate question of

whether the employer intentionally discriminated on the basis of

age.   

, 113 S.Ct. at 2749.

       Hicks holds that the plaintiff must show not only that the

employer's proffered reason for the adverse employment decision was

false, but also that discrimination was the real reason.              

113 S.Ct. at 2752.         In   Hicks, a case involving alleged

employment discrimination based on race, the Supreme Court held

that the plaintiff was not entitled to judgment as a matter of law

when   the   trier   of   fact   disbelieved   the   employer's    proffered
nondiscriminatory reason.     The district court, which was the trier

of fact, did not believe the defendant's reason for firing the

plaintiff but also did not think that the plaintiff had proved that

race was the real reason for his discharge.            The court therefore

entered judgment for the defendant.         The Eighth Circuit reversed,

arguing that the discrediting of the defendant's proffered reason

entitled the plaintiff to judgment as a matter of law.              The Supreme

Court in turn reversed the court of appeals and remanded the case

for further proceedings consistent with its opinion, presumably

reinstating the judgment entered in favor of the defendant by the

district court as the trier of fact.        We recognize that the effect

of our decision is not to reinstate the verdict for the plaintiff

entered by the jury as the trier of fact but rather to express our

agreement   with   the   trial   court   that     as     a    matter   of     law

discrimination was not shown.       Nonetheless, we believe that Hicks

is instructive here and persuades us that the district judge did

not err in granting the Rule 50(b) motion.

       Evidence    allowing   the   trier    of   fact       to   discredit    an

employer's proffered reason for an adverse employment decision thus

alone is not enough for a plaintiff to survive a motion for

judgment as a matter of law.     Isenbergh disputes this proposition,

relying on the following language from Hicks:

     The factfinder's disbelief of the reasons put forward by the
     defendant (particularly if disbelief is accompanied by a
     suspicion of mendacity) may, together with the elements of the
     prima facie case, suffice to show intentional discrimination.
     Thus, rejection of the defendant's proffered reasons, will
     permit the trier of fact to infer the ultimate fact of
     intentional discrimination, ... [and] upon such rejection,
     "[n]o additional proof of discrimination is required,"....

Id. at 

(quoting Hicks v. St. Mary's Honor
Center, 

, 493 (8th Cir.1992) (appellate court decision

in same case)).          The first sentence of this passage shows that

disbelief of the employer's proffered reason may be enough for a

plaintiff to survive a motion for judgment as a matter of law.                        The

second sentence is potentially confusing in saying that rejection

of   the    proffered      reason      "will      permit       "    the   inference   of

discrimination.          In    the    context      of   both       sentences   together,

however, it is clear that rejecting the proffered reason is not

always     sufficient     to    show    discrimination.             The     Hicks   Court

clarified this distinction in a footnote:

     Contrary to the dissent's confusion-producing analysis, there
     is nothing whatever inconsistent between [the statement quoted
     above] and our later statements that (1) the plaintiff must
     show "both that the reason was false, and that discrimination
     was the real reason," and (2) "it is not enough ... to dis
     believe the employer." Even though (as we say here) rejection
     of the defendant's proffered reasons is enough at law to
     sustain a finding of discrimination, there must be a finding
     of discrimination.

n. 

n. 4.

     Therefore, under Hicks, a plaintiff must show both that the

defendant's      reason       was    false   and    that   the       real   reason    was

discrimination.         

n. 4, 

n. 4,

2752.    A finding that the defendant's reason was false is alone not

enough;     there must also be a finding of discrimination.                           The

finding    of   discrimination         may   be     inferred,        though,   from   the

disbelief.      Evidence from which the jury may reasonably disbelieve

the employer's proffered reason is not necessarily enough to

support a verdict for the plaintiff;                the jury also must be able to

infer    from    this    disbelief      or     from     other      evidence    that   the

employer's actual reason was discrimination. 

& n. 

& n. 4.          Therefore, if the evidence in this case

reasonably      allows   both   the   inference     that   Newspapers     First's

alleged reason for the employment decision was false                      and the

inference that the real reason was age discrimination, then we must

let the jury verdict stand.

                                        C.

          We find that Isenbergh has presented a prima facie case.            The

circumstances surrounding the merger of the two companies and the

way in which Malloy was selected for the new position suggest that

the   newly    formed    company    might    have   wanted   to   avoid    hiring

employees of Isenbergh's age.          Isenbergh was in the protected age

group, and he was adversely affected by Newspapers First's decision

to select Malloy, who is sixteen years younger than Isenbergh, as

the   new    manager.2     Moreover,     because    the    decisionmakers     for

Newspapers First were familiar with Isenbergh's performance in his

work for KRNS, we can infer from the fact that he was granted an

interview that Isenbergh was at least at some level qualified for

the new job.      Without deciding the ultimate question of whether a

jury could reasonably infer intentional discrimination, we believe

that Isenbergh has satisfied this part of the McDonnell Douglas-

Burdine burden-shifting analysis.

          We next inquire whether Newspapers First has met its burden

of producing evidence of a legitimate, nondiscriminatory reason for

offering the job to Malloy rather than to Isenbergh.              We find that


      2
      That Malloy was      also a member of the class of persons
protected by the ADEA      does not render insufficient Isenbergh's
prima facie showing.       See O'Connor v. Consol. Coin Caterers
Corp., --- U.S. ----,      

, 

(1996).
it has done so.       It has produced evidence showing that the

principal criterion used in determining who would get the job was

management ability, as assessed at the interviews and by evaluating

past performance.

      Finally, we examine whether Isenbergh has produced evidence

that Newspapers First's proffered reason was false and that the

real reason was age discrimination. Looking at all the evidence in

the light most favorable to Isenbergh, and drawing all reasonable

inferences in his favor, we find that even if a reasonable jury

could have disbelieved Newspapers First's proffered reason for

hiring Malloy, there was no evidence from which a reasonable

inference could be drawn that age discrimination was the actual

reason.   We stress that this holding is not inconsistent with our

conclusion that Isenbergh has presented a prima facie case of

discrimination.     See Carter v. City of Miami,   

, 585

(11th Cir.1989) ("[T]he mere establishment of a prima facie case of

discrimination ... does not alone establish a genuine issue of

material fact sufficient to go to the jury.").

      As discussed above, under Hicks, evidence based on which the

employer's proffered reason may be disbelieved     may be enough to

permit the trier of fact to infer discrimination.      In this case,

however, it is not.     Once the employer asserts a reason for the

adverse employment decision, the case is in equipoise, and the

McDonnell Douglas-Burdine framework becomes irrelevant.    Walker v.

NationsBank of Florida, N.A., 

, 1557 (11th Cir.1995).

The plaintiff has the burden of proving discrimination, so if the

case remains in equipoise, the plaintiff must lose as a matter of
law.   Disbelief of the employer's reason is enough to push the case

beyond equipoise and support a judgment for the plaintiff only if

the    disbelief   is   coupled   with   a    reasonable   belief   that

discrimination was the true reason.      In Hicks, the trier of fact

(the district court) disbelieved the defendant's reason but did not

believe that the plaintiff had proved discrimination, and therefore

the plaintiff lost.      In the case at bar, similarly, we find that

there is no evidence from which a reasonable jury could have

inferred the "ultimate fact of intentional discrimination."          See

, 113 S.Ct. at 2749.

       The alternation ranking system, by which Newspapers First

evaluated managers from all around the country, may or may not have

been a fair way to evaluate the candidates for the new job.

Looking at it in the light most favorable to Isenbergh, Newspapers

First may not have been completely truthful in claiming that this

somewhat objective criterion was used to evaluate the candidates.

Malloy did not rank first in the selection process, and the

competition for the new job may effectively have been only between

Malloy and Isenbergh, the two candidates from Miami, which makes

the process appear somewhat suspect.         Isenbergh's testimony that

his interview was shorter than planned and that Anthony talked on

the phone during most of the time, if believed, casts further doubt

on the selection process.     It would not have been mere speculation

for the jury to disbelieve Newspapers First's explanation of the

selection process.      There is no evidence, however, that the real

selection process used age as a criterion.       A sixty-three-year-old

candidate was rated more highly than Isenbergh overall, and more
highly than both Malloy and Isenbergh in terms of managerial

skills. Most likely, Kosanke and Anthony chose Malloy because they

liked the way he had performed in the past.         The alternation

ranking system may have been a smoke screen hiding the fact that

Newspapers First held Malloy in higher regard than Isenbergh, but

there is no evidence from which a jury could reasonably believe

that it was a smoke screen hiding the fact that Malloy was hired

because of his relative youth.

     In sum, there was not sufficient evidence of intentional

discrimination to allow Isenbergh's claim to be decided by the

jury.   Therefore, the district court was correct in granting

Newspapers First's motion for judgment as a matter of law.

                                 III.

     Newspapers First argues that Isenbergh's failure to remain

employed and thereby mitigate his damages cuts off any claim that

he may have.   In view of our ruling, we need not and do not address

this issue.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.