Case: 13-14389   Date Filed: 09/04/2014   Page: 1 of 17


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14389
                         ________________________

                     D.C. Docket No. 1:07-cv-00326-WSD

RUSSELL E. MARTIN, individually and on behalf of all those similarly situated,
DOUGLAS HATCHER,
JAMES RAWLS,
ALFORD TERRY, JR.,
ROBERT WEBBER,
RAYMOND D. BEARDEN,
JAN PETER THIEL,
GREGG W. RUCKSTUHL,
WILLIAM SCOTT BOSTWICK,
DANIEL F. O’NEILL,
GREGORY L. SHINKLE,
DANNY G. BYESS,
SCOTT WHALEN,
MICHAEL BECKMAN,
KENNETH N. HALE,
PHILLIP YARRI,
RICHARD M. BODANE,
MICHAEL RICE,
ROBERT HUMPHREYS,
MARK WAYNE FARMER,
DENNIS BROWN,
GRIFFIN E. HOWELL, III, as Chapter 7 Trustee for JAMES ROBERT DYCUS,

                                                           Plaintiffs - Appellants,

JIMMY DAVID GITTENS, MR., et al.,

                                                                        Plaintiffs,
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                                             versus

CITY OF ATLANTA, GEORGIA,
DENNIS L. RUBIN,

                                                                     Defendants - Appellees.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                     (September 4, 2014)

Before FAY, Circuit Judge, and HODGES ∗ and HUCK, ∗∗ District Judges.

PER CURIAM:

       Appellants, twenty-two current and former Caucasian Fire Captains of the

City of Atlanta Fire and Rescue Department (“the Department”), appeal the district

judge’s entry of judgment as a matter of law and final judgment following a jury

trial against Appellees, the City of Atlanta (“the City”) and Dennis Rubin. We

affirm.

                                    I. BACKGROUND

       In July 2004, Rubin, the Department Chief, initiated a new process for the

promotion of Captains to the position of Battalion or Section Chief.1 Under the

∗
  Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
∗∗
   Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.

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new process, Captains were required to meet certain minimum service

qualifications; if these were met, they could take an exam administered by an

outside vendor. Those Captains, who passed the exam, interviewed with a panel of

officials from the Department and fire departments in other jurisdictions. The

panel ranked the interviewed candidates as “outstanding,” “well qualified,” or

“qualified.” Rubin then would make promotional appointments from the panel’s

ranked list. After two years, the list would expire, and the process would begin

again.

         In October 2004, after candidates had taken the exam and interviewed, the

panel developed its first list (“2004 List”). The 2004 List ranked sixteen (seven

Caucasian and eight African-American) 2 Captains in the “outstanding” category,

twelve (ten Caucasian and two African-American) Captains in the “well qualified”

category, and sixteen Captains in the “qualified” category. Thirteen Appellants

were on the 2004 List. 3 Of these, ten were in the “qualified” category (the lowest




1
  Prior to the new process, the appointment of Battalion and Section Chiefs did not require
testing; the Department Chief alone selected whom to promote.
2
    The record does not show the race of Calvin Matthews, a Captain who was rated “outstanding.”
3
 The Appellants on the 2004 List were Raymond D. Bearden, Michael Beckman, Richard M.
Bodane, William Scott Bostwick, Dennis Brown, Danny G. Byess, Russell E. Martin, Daniel F.
O’Neill, Gregory L. Shinkle, Alfred Terry, Jr., Jan Peter Thiel, Scott Whalen, and Phillip Yarri.

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category), 4 three were in the “well qualified” category, 5 and none were in the

“outstanding” category. Before publication of the 2004 List, Rubin asked the

interview panel to consider changing one Captain’s ranking, Cindy Thompson.

Thompson, a Caucasian Captain, was elevated to “outstanding” so that she could

be promoted to a specific position for which she was specially trained.6

         Rubin made promotions from the 2004 List, first appointing Captains in the

“outstanding” category, including Thompson. When all “outstanding” Captains

were promoted, he began appointments from the “well qualified” group. All nine

of the African-American Captains who were promoted were from the

“outstanding” and “well qualified” categories.

         In January 2007, a new list was generated by the panel that ranked twelve

Captains in the “outstanding” category, seventeen Captains in the “highly

qualified” category, and eleven Captains in the “qualified” category. Eighteen

Appellants were on the 2007 List. 7 Of these, six were ranked in the “qualified”



4
 The Appellants in the 2004 “qualified” category were Bearden, Beckman, Bodane, Bostwick,
Brown, Byess, Terry, Thiel, Whalen, and Yarri.
5
    The Appellants in the 2004 “well qualified” category were Martin, O’Neill, and Shinkle.
6
 Rubin testified that Thompson had been de facto performing the job functions of the position to
which she was being promoted, and had received specialized course training for that position.
7
 The Appellants on the 2007 List were Bearden, Beckman, Bostwick, Byess, James Robert
Dycus, Mark Wayne Farmer, Kenneth N. Hale, Douglas Hatcher, Robert Humphreys, Martin,
O’Neill, Rawls, Michael Dale Rice, Gregg W. Ruckstuhl, Shinkle, Terry, Robert Webber, and
Whalen. Although Appellant Humphreys was referred to alternatively as “Rodrick Humphreys,”
                                                 4
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category, 8 ten were ranked in the “highly qualified” category, 9 and two were in the

“outstanding” category. 10 Before publication of the 2007 List, Rubin asked the

interview panel to consider changing one Captain’s ranking. Ronnell Johnson, an

African-American Captain, was elevated to “outstanding.” Rubin testified he had

asked that Johnson be classified as “outstanding” so he could promote him to a

specific position for which he was qualified and in which he alone had expressed

an interest.

         Rubin promoted from the 2007 List in order of the rankings. He intended to

promote exclusively from the “outstanding” category and then move to the “highly

qualified” category. Rubin promoted seven Captains from the “outstanding”

group, including three Caucasian Captains and four African-American Captains.

Rubin subsequently left for a new position in Washington, D.C., and did not make

further promotions from the 2007 List.

         Russell E. Martin and twenty-seven other Caucasian Captains filed a

complaint against the City of Atlanta and Rubin and alleged they were denied


we have used “Robert Humphreys,” because that is the way the case is styled from the district
court.
8
 The Appellants in the 2007 “qualified” category were Bearden, Martin, Rawls, Ruckstuhl,
Webber, and Whalen.
9
 The Appellants in the 2007 “highly qualified” category were Bostwick, Byess, Dycus, Farmer,
Hale, Hatcher, Humphrey, Rice, Shinkle, and Terry.
10
     The Appellants in the 2007 “outstanding” category were Beckman and O’Neill.

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promotions because of their race. Prior to this matter going to trial, Rubin moved

for summary judgment based on qualified immunity, and the City of Atlanta also

moved for summary judgment. The motion was denied; Rubin and the City

appealed. This court upheld the denial of qualified immunity for Rubin, because

“Rubin failed to explain why he exercised his discretion in such a manner as to

deny appointments to the individual plaintiffs in this case . . . [and] offered no

evidence that his appointments were motivated by lawful considerations.” Ham v.

City of Atlanta, Ga., 386 F. App’x 899, 908 (11th Cir. 2010) (per curiam).

      In February 2013, before trial, the parties entered into a stipulation, whereby

Appellants agreed that the creation of the 2004 and 2007 Lists was not the result of

discrimination. Appellees also agreed not to introduce evidence of individualized

qualifications of the candidates. In the stipulation, Appellants specifically agreed

not to “directly challenge the composition of the candidate list at trial[,] [but would

instead] contend at trial that Rubin’s selection from the panel-generated list

resulted in a disproportionate under-representation of white candidates in the

Battalion and Section Chief appointments.” Joint Agreement as to the Proposed

Structure of the Trial at 3. Therefore, it was “[Appellants’] burden . . . to

demonstrate that Rubin made appointments to Section and Battalion Chief based

on race.” 

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       In March 2013, the district judge held a status conference. During the

conference, Appellants agreed the case would go to trial as a disparate-treatment,

not a disparate-impact case. The judge also excluded the testimony of Appellants’

expert, Dr. David Macpherson.

       On August 19, 2013, the case proceeded to trial. Appellants introduced

evidence that Rubin expressed a desire or goal to achieve or maintain diversity in

relation to employment actions. This included one statement in which Rubin

commented that the Department would maintain “rich diversity” throughout hiring

and this diversity should “roughly mirror the city in which it serve[s].” Trial Tr. at

131. This statement was not introduced as direct evidence of his intent on how to

make promotions, but was allowed only to evaluate Rubin’s intent or motive in

making the challenged promotions.

       After Appellants presented their case-in-chief, Appellees moved for

judgment as a matter of law,11 under Federal Rule of Civil Procedure 50. They

argued the evidence was not sufficient to support the Appellants’ claims. The

district judge reserved ruling and, after all evidence had been admitted, Appellees

renewed their motion. The judge granted judgment as a matter of law against



11
   Appellees also moved for judgment as a matter of law as to six firefighter Plaintiffs who had
failed to testify. These Plaintiffs included Thomas C. Doyle, Jimmy David Gittens, Ronald V.
Pagnota, James W. Peal, Donald Pruett, and Billy J. Shoemaker. Plaintiffs’ counsel did not
oppose the motion and the district judge granted it.

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eighteen Appellants,12 partially granted it against three Appellants, 13 and denied it

against one Appellant. 14 The judge granted the motion against those Appellants

who belonged to lower-ranked categories from which Rubin had not made any

promotions, because he had not exhausted a higher-ranked category. The judge

found Rubin’s selections had been based on promoting the highest-ranked

candidates first, and Appellants had failed to establish pretext. The judge allowed

the claims of Appellants, who were in the 2004 “well qualified” and 2007

“outstanding” categories (categories from which Rubin had made promotions and

which he had not exhausted), to proceed to the jury. 15 The jury returned a defense

verdict as to these claims. They found that these promotions were not denied

because of race.




12
  Appellees’ Motion for Judgment as Matter of Law was granted with respect to all claims
asserted by Bearden, Bodane, Bostwick, Brown, Byess, Dycus, Farmer, Hale, Hatcher,
Humphreys, Rawls, Rice, Ruckstuhl, Terry, Thiel, Webber, Whalen, and Yarri.
13
  Appellees’ Motion for Judgment as Matter of Law was granted in part with respect to claims
asserted by Beckman, Martin, and Shinkle. The motion was granted as to Beckman’s claim
based on the 2004 List, Martin’s claim based on the 2007 List, and Shinkle’s claim based on the
2007 List. The motion was denied as to Beckman’s claim based on the 2007 List, Martin’s claim
based on the 2004 List, and Shinkle’s claim based on the 2004 List.
14
  Appellees’ Motion for Judgment as Matter of Law was denied with respect to all claims
asserted by O’Neill.
15
  The claims that proceeded to trial included Beckman’s claim based on the 2007 List, Martin’s
claim based on the 2004 List, O’Neill’s claims based on the 2004 and 2007 Lists, and Shinkle’s
claim based on the 2004 List.

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                                     II. DISCUSSION

A. Judgment as a Matter of Law

         Appellants argue the district judge erred in granting Appellees’ Rule 50

motion, because the district judge improperly applied the McDonnell Douglas 16

framework. 17 “We review de novo a district court’s grant of judgment as a matter

of law under Fed. R. Civ. P. 50(a), applying the same standard that bound the

district court.” Rodriguez v. Sec’y for the Dep’t of Corrs., 

, 616 (11th

Cir. 2007).

         Appellants argue it was improper for the district judge to apply the

McDonnell Douglas framework in deciding the Rule 50 motion. They assert that

U.S. Postal Service Board of Governors v. Aikens, 

, 

(1983), stands for the proposition that a district judge cannot use the McDonnell


16
     McDonnell Douglas v. Green, 

, 

(1973).
17
  Appellants also argue the law-of-the-case doctrine precluded granting Appellee’s Rule 50
motion. On interlocutory appeal, we previously determined the district judge did not err in
denying Rubin’s motion for summary judgment based on qualified immunity. Ham, 386 F.
App’x at 908. The facts before this court on the previous appeal regarding qualified immunity,
however, necessarily were different than the facts currently before us. The interlocutory appeal
hinged on whether the evidence established Rubin was entitled to qualified immunity and was
not an analysis of the sufficiency of the evidence for purposes of deciding a Rule 50 motion on
the ultimate issue of intentional discrimination. Importantly, the plaintiffs in Ham included
higher-ranked individuals who were in categories from which Rubin had made promotions,
whereas judgment as a matter of law was only granted against the lower-ranked plaintiffs.
Additionally, in considering the interlocutory appeal, we rejected any attempt to expand the
scope of review to include other issues in the denial of the motion for summary judgment and
limited our decision to the core issue of immunity. Ham, 386 F. App’x at 904. Therefore, the
law-of-the-case doctrine did not preclude the judge’s ruling on the Rule 50 motion.

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Douglas framework, when deciding a Rule 50 motion, because the presumption of

discrimination is eliminated once a defendant responds to a plaintiff’s prima facie

case by proffering a legitimate business reason. While the presumption of

discrimination is gone, this does not end the application of the framework; the

plaintiff is still required to present evidence to establish the employer’s stated

reasons were pretext for unlawful discrimination. See Combs v. Plantation

Patterns, 

, 1528 (11th Cir. 1997).18

         In a disparate-treatment employment discrimination case, the plaintiff may

prove discriminatory intent either by direct or circumstantial evidence. Denney v.

City of Albany, 

, 1182 (11th Cir. 2001). In the absence of evidence

of discriminatory intent, the defendant is entitled to judgment as a matter of law.


18
     As we have explained:

                 If a defendant carries its burden of producing legitimate,
         nondiscriminatory reasons for its decision, the presumption of discrimination
         created by the McDonnell Douglas framework drops from the case, and the
         factual inquiry proceeds to a new level of specificity. However, elimination of
         the presumption does not imply that the trier of fact no longer may consider
         evidence previously introduced to establish a prima facie case. . . .

                  Once a defendant satisfies its intermediate burden of production, and the
         initial presumption of discrimination accompanying the prima facie case has been
         eliminated, the plaintiff has the opportunity to discredit the defendant’s proffered
         explanations for its decision. . . . In other words, the plaintiff has the opportunity
         to come forward with evidence, including the previously produced evidence
         establishing the prima facie case, sufficient to permit a reasonable factfinder to
         conclude that the reasons given by the employer were not the real reasons for the
         adverse employment decision.

(citations and internal quotation marks omitted).

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See 

(summary judgment case). In a failure-to-promote case, a plaintiff

establishes a prima facie case of discrimination by proving (1) he is a member of a

protected class, (2) he was qualified for and applied for the promotion, (3) he was

rejected, and (4) an individual outside the protected class was promoted. Vessels v.

Atlanta Indep. Sch. Sys., 

, 768 (11th Cir. 2005) (per curiam). If the

plaintiff establishes a prima facie case, the defendant must introduce evidence

showing a legitimate, non-discriminatory reason for the challenged employment

action. 

. If such a reason is given, the plaintiff must

prove the stated reason is pretext for unlawful discrimination. 

McDonnell Douglas burden-shifting framework, granting the Rule

50 motion was not error. Rubin testified to a legitimate, non-discriminatory reason

for not promoting Appellants, because Appellants were ranked objectively in lower

categories on the 2004 and 2007 Lists. The district judge properly examined

whether Appellants presented evidence to show Rubin’s legitimate non-

discriminatory reason was pretext. Considering Appellants’ circumstantial

evidence and Appellants’ stipulation that the process of evaluating and ranking the

candidates was not at issue, the district judge concluded Appellants did not meet

their burden of showing pretext with the evidence presented. 19 Notwithstanding

19
   Because they were ranked in the category from which Rubin promoted, the district judge
allowed the claims of Appellants, who were in the 2004 “well qualified” and 2007 “outstanding”
categories, to proceed to jury trial.

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Appellants’ contention, the district judge did not reexamine their prima facie case

or disregard circumstantial evidence of pretext.

      Appellants presented the facts regarding Rubin’s comments on race and

efforts to balance and diversify the workforce, but the district judge found these

statements to be insufficient to establish pretext. We agree. The circumstantial

evidence, including the comments, was not enough to establish pretext. See

Cuddeback v. Fla. Bd. of Educ., 

, 1236 (11th Cir. 2004) (affirming

an order granting summary judgment, when a plaintiff established a prima facie

case but failed to establish pretext). The comments were isolated remarks and not

directly related to the promotional decisions. See Rojas v. Florida, 

,

1342-43 (11th Cir. 2002) (per curiam). While these statements can be considered

as part of a circumstantial case of pretext, the comments alone are insufficient. 

pretext, Appellants also note Rubin asked for two candidates,

Cindy Thompson and Ronnell Johnson, to be elevated into the “outstanding”

category so he could promote them. This argument, however, fails. Thompson is

Caucasian and in the same protected class as Appellants; therefore, she cannot

serve as the basis for Appellants’ claims. See Wilson v. B/E Aerospace, Inc., 

, 1089 (11th Cir. 2004) (stating a comparator must be outside the

protected class). Moreover, she was elevated so she could be promoted to a

specific position for which she was specially trained. Similarly, Rubin testified he

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elevated Johnson in order to promote him to a specific section in which “no one

else had expressed an interest or had any seeming desire to be in that role,” Trial

Tr. at 337, and Appellants failed to show this legitimate, nondiscriminatory

explanation was pretextual. 20 See 

(stating plaintiffs must

demonstrate “such weakness, implausibilities, inconsistencies, incoherencies, or

contradictions” in an employer’s explanation “that a reasonable factfinder could

find [it] unworthy of credence” (internal quotation marks omitted)). Moreover,

Appellants stipulated that the compilations of the 2004 and 2007 Lists were race-

neutral. Appellants also agreed the case was a disparate-treatment case.

Appellants’ argument the district judge “ignored” evidence that Rubin tainted the

compilation of the lists is misleading, because Appellants stipulated to those facts

prior to trial. Because Appellants failed to establish pretext, the district judge’s

partially granting Appellees’ Rule 50 motion was not erroneous.

B. Expert Testimony

       Appellants argue the district judge erred in excluding the testimony of their

20
   Appellants also refer to the district judge’s order denying Appellees’ motion for summary
judgment, wherein the judge found it was clear Rubin had control and input in the panel’s
ratings, because he had requested two individuals be moved into different categories, and this
was “probative of pretext because it contradict[ed] defendants’ claim that the panel constituted
an independent promotional process.” Order Granting in Part & Den. in Part Mot. for Summ. J.
at 15 (internal quotation marks omitted). This argument fails, however, because, at the summary
judgment stage, the stipulation stating the compilation of the Lists was race neutral had not yet
been entered. Additionally, Harold Miller, a former Deputy Chief under Rubin, who had
participated on the panel in both 2004 and 2007, testified the panel made the ultimate decision to
accept Rubin’s two requested exceptions. Trial Tr. at 530-32, 545-47.

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statistics expert, Dr. Macpherson. We review a decision to exclude expert

testimony under Daubert 21 for abuse of discretion. Gen. Elec. Co. v. Joiner, 

, 141-42, 

, 517 (1997). Federal Rule of Evidence 702

provides expert testimony is admissible if (1) the expert is qualified to testify

regarding the subject of the testimony; (2) the expert’s methodology is

“sufficiently reliable as determined by the sort of inquiry mandated in Daubert”;

and (3) the expert’s testimony will assist the trier of fact in understanding the

evidence or determining a fact at issue. United States v. Frazier, 

,

1260 (11th Cir. 2004) (en banc) (citation and internal quotation marks omitted).

         Dr. Macpherson evaluated the racial statistics of employee ratings and the

promotion of Captains to Battalion or Section Chief in 2004 and 2007. He opined

the data suggests the number of Caucasian firefighters, who received an

“outstanding” rating, and number promoted was not consistent with the number of

Caucasians that one would expect to find with an “outstanding” rating or be

promoted based on the total applicant pool. The judge evaluated Dr. Macpherson’s

proffered opinion and found it was not reliable or relevant to the trial. The judge

concluded the expert’s opinion was unreliable, because it did not take into account

the panel interviews that, in conjunction with the test scores, resulted in the ranking



21
     Daubert v. Merrell Dow Pharm., Inc., 

, 

(1993).

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of the candidates, rankings which Appellants stipulated were not the product of

discrimination.

      The manner and method of the evaluation including that it did not
      account for the important classification process discredits the
      reliability of [the expert’s] opinion that there “is statistical support that
      the race of candidates influenced” promotion decisions. . . . In this
      case of alleged “intentional discrimination,” this “statistical support”
      is doubtfully probative on the issue of intent to discriminate.

Order Regarding Status Conference at 15-16. The judge additionally concluded

that Dr. Macpherson’s “statistics” were not helpful, because the jury was entirely

capable of looking at the numbers and the racial classifications and making the

same mathematical calculations without expert testimony.

      Moreover, the district judge’s thorough and well-reasoned order specifically

addressed Dr. Macpherson’s methodology and found it unreliable, because he

failed to take the panel interviews into account. Dr. Macpherson’s testimony was

unreliable and was offered as opinion testimony on the ultimate issues of the case.

Given the highly deferential standard in reviewing decisions to exclude expert

testimony under Daubert, Appellants have not shown that the judge abused his

discretion by excluding Dr. Macpherson’s testimony. See Rink v. Cheminova, Inc.,

, 1291 (11th Cir. 2005) (stating this court must defer to the district

judge’s decision on expert testimony “unless it is manifestly erroneous” (internal

quotation marks omitted)). Additionally, expert testimony regarding anything

other than Rubin’s intentional discrimination in making the promotions was
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irrelevant to the issues remaining in the case, because the parties stipulated the

creation of the 2004 and 2007 Lists was not the result of discrimination.

C. Jury Instruction

      Appellants also argue the district judge should have charged the jury

regarding document destruction, because “Rubin intentionally destroyed all

documentation supporting the creation of the ranked candidate lists from which he

promoted Battalion and Section Chiefs.” Appellants’ Br. at 45. Jury instructions

are reviewed de novo “to determine whether they misstate the law or mislead the

jury to the prejudice of the objecting party”; however, the district judge is given

wide discretion concerning the style and wording employed in the instructions.

Lamonica v. Safe Hurricane Shutters, Inc., 

, 1309 (11th Cir. 2013).

“In refusing to give a requested jury instruction, an abuse of discretion is

committed only when (1) the requested instruction correctly stated the law, (2) the

instruction dealt with an issue properly before the jury, and (3) the failure to give

the instruction resulted in prejudicial harm to the requesting party.” 

internal quotation marks omitted).

      Appellants’ argument fails, because the allegedly destroyed evidence relates

to the creation of the 2004 and 2007 Lists, which were created after the panel

interviewed the candidates. Those Lists were, by stipulation, not at issue in this




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case, and the parties had agreed not to refer to that part of the vetting process. 22

Because the instruction did not deal with an issue properly before the jury, the

failure to give the instruction was not an abuse of discretion. See 

.

       AFFIRMED.




22
  Once the parties stipulated that the 2004 and 2007 Lists were not the result of any
discrimination, they were precluded from going behind that stipulation.

                                                17