Russell v. McKinney Hosp Vntr ( 2001 )

  •                       REVISED, JANUARY 5, 2001
                          FOR THE FIFTH CIRCUIT
                               No. 99-41390
                                       Plaintiff - Appellant
         MCKINNEY HOSPITAL VENTURE, a joint venture
         of Parkway Hospital, Inc. and NTMC Venture,
         Inc., d/b/a Columbia Medical Center of McKinney,
         d/b/a Columbia Homecare of McKinney; NTMC
         VENTURE, INC., d/b/a Columbia Medical Center of
                                       Defendants - Appellees
              Appeal from the United States District Court
                    for the Eastern District of Texas
                             December 6, 2000
    Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,*
    District Judge.
    KING, Chief Judge:
         Plaintiff-Appellant Sandra Russell appeals from the district
    court’s order granting Defendants-Appellees judgment as a matter
    of law in this case brought under the Age Discrimination in
            District Judge of the Northern District of Texas,
    sitting by designation.
    Employment Act.    For the following reasons, we AFFIRM in part and
    REVERSE in part.
                                I. BACKGROUND
         On October 9, 1995, fifty-four year old Sandra Russell began
    employment for Columbia Homecare of McKinney (“Homecare”) as the
    Director of Clinical Services.   Carol Jacobsen, age fifty-three
    and Russell’s immediate supervisor, also began working at
    Homecare on the same day.   In January 1996, Steve Ciulla, age
    twenty-eight, was hired as the Director of Operations, a position
    that was to be at the same level as Russell’s position and one
    that reported to Jacobsen as well.    Ciulla was the son of the
    Chief Executive Officer of Columbia Medical Center of McKinney
    (“Medical Center”), the parent company of Homecare.
         On January 27, 1997, Russell was terminated from her
    employment.   Subsequently, on April 23, 1998, Russell filed suit
    in federal district court1 charging defendants with violating the
    Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
    § 623(a)(1) (1999).2   A jury trial commenced on July 12, 1999.    At
            Russell had originally filed her suit in Texas state
    court, which defendants subsequently removed to federal district
    court. Russell moved to remand, but the district court denied
    her motion.
            Under the ADEA, it is unlawful “to discharge any
    individual or otherwise discriminate against any individual with
    respect to his compensation, terms, conditions, or privileges of
    employment, because of such individual’s age.” 29 U.S.C.
    § 623(a)(1) (1999).
    the close of Russell’s case in full, defendants moved for
    judgment as a matter of law, pursuant to Rule 50 of the Federal
    Rules of Civil Procedure.    The district court responded that it
    would take the motion under advisement and would render a ruling
    after the jury returned its verdict.    On July 15, 1999, the jury
    returned a verdict in favor of Russell, granting her $25,000 in
    back pay.   The jury further found that defendants had willfully
    violated the ADEA, but did not assess any liquidated damages.
    Defendants renewed their motion for judgment as a matter of law,
    which the district court granted on November 1, 1999.    Russell
    timely appeals.
                            II. STANDARD OF REVIEW
         We review de novo a district court’s grant of a motion for
    judgment as a matter of law, applying the same standard as the
    district court.     See Price v. Marathon Cheese Corp., 
    119 F.3d 330
    , 333 (5th Cir. 1997).    Judgment as a matter of law is
    appropriate if “there is no legally sufficient evidentiary basis
    for a reasonable jury to find for that party on that issue.”       FED.
    R. CIV. P. 50(a).    Reviewing all of the evidence in the record, we
    “must draw all reasonable inferences in favor of the nonmoving
    party, and [we] may not make credibility determinations or weigh
    the evidence.”    Reeves v. Sanderson Plumbing Prods., Inc., 120 S.
    Ct. 2097, 2110 (2000); see also Boeing Co. v. Shipman, 
    411 F.2d 3
    365, 374-75 (5th Cir. 1969) (en banc) (stating that it is the
    function of the jury to weigh conflicting evidence and inferences
    and determine the credibility to be accorded to the witnesses).
    In so doing, we “must disregard all evidence favorable to the
    moving party that the jury is not required to believe.”     Reeves,
    120 S. Ct. at 2110.
         To determine whether judgment as a matter of law against
    Russell was appropriate, we must ascertain if sufficient evidence
    existed for a reasonable jury to find age discrimination.    This
    inquiry is driven by the Supreme Court’s most recent statement on
    the standard for granting judgment as a matter of law, Reeves v.
    Sanderson Plumbing Products, Inc., 
    120 S. Ct. 2097
     (2000).      We
    thus set out this analytical framework, and then analyze whether
    the evidence was sufficient to sustain the jury verdict in this
                          A. Analytical Framework
         A plaintiff can prove a claim of intentional discrimination
    by either direct or circumstantial evidence.    Absent direct
    evidence of discriminatory intent, as is typically the case,
    proof via circumstantial evidence is assembled using the
    framework set forth in the seminal case of McDonnell Douglas
    Corp. v. Green, 
    411 U.S. 792
     (1973).3    “First, the plaintiff must
    establish a prima facie case of discrimination.”     Reeves, 120 S.
    Ct. at 2106.   Second, the employer must respond with a
    legitimate, nondiscriminatory reason for its decision.      See
    McDonnell Douglas, 411 U.S. at 802.     This burden on the employer
    is only one of production, not persuasion, involving no
    credibility assessments.   See Tex. Dep’t of Cmty. Affairs v.
    450 U.S. 248
    , 255-56 (1981).    Third, if the employer
    carries its burden, the “mandatory inference of discrimination”
    created by the plaintiff’s prima facie case, Burdine, 450 U.S. at
    256 n.10, “drops out of the picture” and the fact finder must
    “decide the ultimate question: whether [the] plaintiff has proven
    [intentional discrimination],” St. Mary’s Honor Ctr. v. Hicks,
    509 U.S. 502
    , 511-12 (1993).
         In making this showing, the plaintiff can rely on evidence
    that the employer’s reasons were a pretext for unlawful
    discrimination.   See McDonnell Douglas, 411 U.S. at 804.    “[T]he
    trier of fact may still consider the evidence establishing the
    plaintiff’s prima facie case ‘and inferences properly drawn
            Russell is asserting her claim of disparate treatment
    under the ADEA. “Although McDonnell Douglas is a Title VII case,
    we have previously held that its framework is applicable to ADEA
    cases.” Woodhouse v. Magnolia Hosp., 
    92 F.3d 248
    , 252 n.3 (5th
    Cir. 1996); see also Bauer v. Albemarle Corp., 
    169 F.3d 962
    , 966
    (5th Cir. 1999) (“The same evidentiary procedure for allocating
    burdens of production and proof applies to discrimination claims
    under both [Title VII and the ADEA].”). Thus, we will examine
    Russell’s ADEA claim under the well-established Title VII rubric
    of analysis.
    therefrom . . . on the issue of whether the defendant’s
    explanation is pretextual.’”      Reeves, 120 S. Ct. at 2106 (quoting
    Burdine, 450 U.S. at 255 n.10).     However, as the Court stated in
    Hicks, a showing of pretext does not automatically entitle an
    employee to a judgment as a matter of law.      See 509 U.S. at 524.
    It is “not enough . . . to disbelieve the employer; the [fact
    finder] must believe the plaintiff’s explanation of intentional
    discrimination.”   Id. at 519 (emphasis in original).     This
    statement in Hicks caused confusion as to whether intentional
    discrimination could be inferred from a showing of pretext.      See
    Reeves, 120 S. Ct. at 2104-05 (describing the circuit conflict
    resulting from the confusion).
         The Supreme Court resolved the circuit split by repudiating
    the “pretext-plus” approach, thus overruling our decision below,
    Reeves v. Sanderson Plumbing Products, Inc., 
    197 F.3d 688
    Cir. 1999).   See Reeves, 120 S. Ct. at 2108.     A unanimous Court
    held that this circuit had “misconceived the evidentiary burden
    borne by plaintiffs who attempt to prove intentional
    discrimination through indirect evidence.”      Id.   “Thus, a
    plaintiff’s prima facie case, combined with sufficient evidence
    to find that the employer’s asserted justification is false, may
    permit the trier of fact to conclude that the employee unlawfully
    discriminated.”    Id. at 2109.
         The Court further stated that, more likely than not, a
    showing of pretext will lead to an inference of discrimination:
    “Moreover, once the employer’s justification has been eliminated,
    discrimination may well be the most likely alternative
    explanation, especially since the employer is in the best
    position to put forth the actual reason for its decision.”   Id.
    at 2108-09.
         The Court also cautioned that there may be instances,
    although rare, where a showing of pretext would not be sufficient
    to infer discrimination.   Such a situation would occur “if the
    record conclusively revealed some other, nondiscriminatory reason
    for the employer’s decision, or if the plaintiff created only a
    weak issue of fact as to whether the employer’s reason was untrue
    and there was abundant and uncontroverted independent evidence
    that no discrimination occurred.”    Id. at 2109.4
            By its ruling in Reeves, the Supreme Court repudiated
    part of our en banc decision in Rhodes v. Guiberson Oil Tools, 
    75 F.3d 989
     (1996). The Court noted that Rhodes stood for the
    proposition that the “plaintiff must introduce sufficient
    evidence for [the] jury to find both that [the] employer’s reason
    was false and that [the] real reason was discrimination.”
    Reeves, 120 S. Ct. at 2105 (emphasis added) (statement in
    parenthetical). This pretext-plus requirement is contrary to the
    Court’s holding that the employer’s prevarication may be
    sufficient in many cases to demonstrate discriminatory animus.
    See id. at 2108-09. While portions of our Rhodes opinion do not
    fully comport with Reeves, we have previously recognized that
    there are central features of Rhodes that endure. See Vadie v.
    Miss. State Univ., 
    218 F.3d 365
    , 373 n.23 (5th Cir. 2000)
    (“Rhodes is consistent with Reeves and continues to be the
    governing standard in this circuit.”). We do not see much to be
    gained from dissecting Rhodes to divine those features. Rather,
    we simply comply with the Supreme Court’s mandate in Reeves not
    to substitute our judgment for that of the jury and not to unduly
    restrict a plaintiff’s circumstantial case of discrimination. We
    therefore underscore that Reeves is the authoritative statement
    regarding the standard for judgment as a matter of law in
         With this framework in mind, we proceed to analyze Russell’s
    evidence supporting her ADEA claim.
               B. Application of the Analytical Framework
         Under the McDonnell Douglas circumstantial evidence
    framework, to make out a prima facie case of age discrimination
    under the ADEA, a plaintiff must establish:
         (1) [she] was discharged; (2) [she] was qualified for
         [her] position; (3) [she] was within the protected
         class; and (4) [she] was replaced by someone outside
         the protected class, someone younger, or was otherwise
         discharged because of age.
    Brown v. CSC Logic, Inc., 
    82 F.3d 651
    , 654 (5th Cir. 1996)
    (citations omitted).   It is undisputed that Russell satisfied her
    burden to establish a prima facie case of discrimination.5    In
    response, defendants put forth the need for a new management
    style as their legitimate reason for terminating Russell.
    Russell disputed this proffered justification, contending that
    discrimination cases. Reeves guides our decisions, and insofar
    as Rhodes is inconsistent with Reeves, we follow Reeves.
            Defendants stipulated to the prima facie case because
    Russell established that she was terminated, that she was
    qualified for her position, that she was in her mid-fifties, and
    that she was replaced by a woman in her early-thirties.
            Defendants contended in their supplemental brief that
    because they stipulated to the prima facie case, it is somehow
    infirm. This argument is wholly without merit. First,
    stipulations do not weaken the evidence. Second, the Supreme
    Court has stated that for a case that is “fully tried on the
    merits,” the sufficiency of the prima facie case as such is “no
    longer relevant.” See United States Postal Serv. Bd. of
    Governors v. Aikens, 
    460 U.S. 711
    , 714, 715 (1983).
    the real reason for her termination was Ciulla’s age-based
         While evidence beyond that of the prima facie case and
    pretext clearly is not required, see supra Part III.A, Russell
    provided additional evidence of discrimination.   Because we
    review the entire record when considering a motion for a judgment
    as a matter of law, see Reeves, 120 S. Ct. at 2110, we first
    examine Russell’s evidence of pretext and then her additional
    evidence of discrimination.
                           1. Evidence of Pretext
         Defendants’ proffered reason for Russell’s termination was
    that “a change in management style” was needed.   We find that
    Russell provided sufficient evidence to create a jury issue that
    this justification was pretextual.
         At trial, Russell demonstrated that she had received a very
    favorable evaluation from her supervisor Jacobsen only two months
    prior to her termination.   On that evaluation, Russell was noted
    as “exceptional” or “exceeding expectations” in all the relevant
    categories but one, in which she received a “meets standards”
    rating.6   Jacobsen conceded that Russell was not given a formal
            The rating guide was as follows: 4 - “exceptional
    performance”; 3 - “exceeds standards”; 2 - “meets standards”; 1 -
    “almost meets standards”; and 0 - “does not meet standards.”
    Russell received her “2” rating in a cost-control category
    (“manages the utilization of supplies and equipment”).
    oral warning, a written warning, or a “corrective action plan,”
    all of which are required by Homecare’s own internal procedures.
         In addition, Dayna Westmoreland, Jacobsen’s administrative
    assistant, testified that Jacobsen received (what Jacobsen
    herself termed) an “ultimatum” from Ciulla that he would quit if
    Russell were not fired.   During the four days between Ciulla’s
    ultimatum and Russell’s termination, Jacobsen called a special
    meeting of nurses under Russell’s supervision, during which some
    indicated that they were unhappy with Russell.    Thus, the jury
    had before it evidence that the meeting was hastily assembled
    immediately after Ciulla’s ultimatum and that Russell was fired
    only a few days after the ultimatum.
         Russell also elicited information from two nurses, who were
    defendants’ witnesses, that Russell did an “excellent” job of
    keeping the facility in federal compliance.   As for feeling
    belittled from Russell’s “nitpicking,” the nurses conceded that
    the reprimands occurred when they committed errors that were
    violations of professional and federal rules regarding accuracy
    of data and dispensing medication to patients.7   In addition,
    Russell produced evidence at trial that Homecare dominated the
            For example, one of the nurses was reprimanded for
    giving a patient insulin without a doctor’s authorization.
    healthcare market, thus casting doubt upon defendants’ contention
    that the nurses were “disinterested” witnesses.8
         Although defendants contested Russell’s case, their evidence
    is not of such magnitude that a reasonable jury could only find
    in their favor (i.e., that their justification for terminating
    Russell was not pretextual).   All defendants have demonstrated is
    that they disputed Russell’s characterization of the events and
    put forth evidence to support their position.   The record reveals
    that Russell countered defendants’ arguments and created
    conflicts in substantial evidence.   See Boeing, 411 F.2d at 375.
    The jury had both conflicting versions before it and apparently
    did not find credible defendants’ explanation that the ratings
    reflected serious management style issues, that tensions with
    other staff stemmed from Russell’s inability to work with people
    (versus Russell’s ensuring that Homecare was in federal
    compliance), and that the special meeting with the nurses was
    entirely aboveboard.   See Reeves, 120 S. Ct. at 2110 (stating
    that courts are not required to give credence to evidence
    supporting defendants that is not uncontradicted and
    unimpeached); see also United States v. Ramos-Garcia, 
    184 F.3d 463
    , 466 (5th Cir. 1999) (stating that the jury evidently did not
    believe the alternative explanation of the events and that the
            Defendants had argued that because the nurses no longer
    worked for Homecare during the time of the trial, they were
    “disinterested” witnesses.
    court would “‘not second guess the jury in its choice’”);
    Woodhouse v. Magnolia Hosp., 
    92 F.3d 248
    , 254 (5th Cir. 1996)
    (“The jury was presented conflicting evidence . . . [and]
    apparently chose to believe that [age was a criterion in the
    decision].”); United States v. Kaufman, 
    858 F.2d 994
    , 1004 (5th
    Cir. 1988) (finding that it was a “serious mistake . . . to
    second-guess judgments that . . . [were made] firsthand”); Fowler
    v. Carrollton Pub. Library, 
    799 F.2d 976
    , 984 (5th Cir. 1986)
    (“Motivation presents a classic jury issue.”).
         The jury, with its ability to listen to live testimony, was
    in a better position to judge the credibility of the witnesses
    and the accounts of the events; as such, we will not second guess
    their rejection of defendants’ proffered justification.     See
    Reeves, 120 S. Ct. at 2110 (stating that the court “may not make
    credibility determinations or weigh the evidence”); Vance v.
    Union Planters Corp., 
    209 F.3d 438
    , 443 (5th Cir. 2000) (stating
    that the court “[lacked] the jury’s opportunity to observe [the
    witness’s] demeanor and hear his voice” and this fact contributed
    to the court’s confidence in the jury’s verdict).
                2. Additional Evidence of Discrimination
         In addition to establishing a prima facie case of
    discrimination and creating a jury issue as to the veracity of
    defendants’ explanation, Russell introduced evidence of oral
    statements that supported her case of age discrimination.9    The
    value of such remarks is dependent upon the content of the
    remarks and the speaker.   See Reeves, 120 S. Ct. at 2111 (finding
    that the age-related comments further supported the jury’s
    verdict of liability because the content of the remarks indicated
    “age-based animus” and the speaker was “principally responsible
    for [the plaintiff’s] firing.”).
         The four-part test of Brown v. CSC Logic, Inc., 
    82 F.3d 651
    (5th Cir. 1996),10 was originally devised in order to address a
    situation in which one of the elements of the plaintiff’s prima
    facie case is missing and the plaintiff attempts to remedy the
    deficiency by adducing evidence of discrimination in the form of
    remarks evidencing animus or bias.   That said, the four-part test
    has been widely used in this circuit, notably by the panel that
    decided Reeves.   See Reeves, 197 F. 3d at 692-93.   The Court in
    Reeves made clear that viewing remarks that a jury could find to
    evidence animus through the harsh lens employed by the Reeves
    panel (which, in turn, relied upon Brown) was unacceptable:
         The [Fifth Circuit] also failed to draw all reasonable
         inferences in favor of petitioner. For instance, while
            We note that such remarks could also be utilized by a
    plaintiff to demonstrate pretext.
            “[R]emarks may serve as sufficient evidence of age
    discrimination if the offered comments are: 1) age related; 2)
    proximate in time to the terminations; 3) made by an individual
    with authority over the employment decision at issue; and 4)
    related to the employment decision at issue.” Brown, 82 F.3d at
    655 (emphasis added).
         acknowledging “the potentially damning nature” of [the]
         age-related comments, the court discounted them on the
         ground that they “were not made in the direct context
         of [the plaintiff’s] termination.”
    120 S. Ct. at 2111 (citation omitted).
         The remarks at issue in this case are certainly appropriate
    additional circumstantial evidence of age discrimination because
    their content indicates age animus and the speaker (Ciulla) was
    primarily responsible for Russell’s termination.     See Reeves, 120
    S. Ct. at 2111.   Russell revealed at trial that Ciulla frequently
    referred to her as “old bitch.”11     She testified that the constant
    drumbeat of “old bitch” forced her to get earplugs so she would
    be able to work in the office.   Russell also testified that
            Russell also testified that Ciulla “viciously” referred
    to her as “Miss Daisy.” In addition, the evidence revealed that
    one of Ciulla’s employees created a cover to a book of work
    discrepancies kept by Homecare; the cover read “Miss Daisy’s
    Discrepancy Book.” It is uncontested that the “Miss Daisy”
    remarks had an innocuous beginning. In the summer of 1996, Gwen
    Morris, Homecare’s Quality Assurance Director, began referring to
    Russell in jest as “Miss Daisy.” In the course of managing
    nurses from regional offices and reviewing their paperwork for
    regulatory compliance, Russell and Morris regularly traveled
    together to outlying locations. On these occasions, Russell
    drove because Morris preferred not to drive. Morris, who is
    African American, found the situation amusing in light of the
    film Driving Miss Daisy, in which an African-American man
    chauffeurs a Caucasian woman. Viewing references to Russell as
    Miss Daisy as evidence of age-based animus is considerably more
    difficult than so viewing the “old bitch” comments.
            Russell also recounted a conversation between herself
    and Jacobsen that occurred when she spoke with Jacobsen about her
    problems with Ciulla: Russell asked whether she should be seeking
    other employment, and Jacobsen replied, “You and I really don’t
    have to work but Steve Ciulla has a young family.” We agree with
    defendants that a reasonable jury could not find that this
    comment evidences age-based discrimination.
    Ciulla laughed at her when she confronted him about his dealings
    with her.   We determine that the jury could find the repeated use
    of “old bitch” indicates that Ciulla had discriminatory
    motivations.12   That Ciulla did not explicitly remark to Russell,
    “I do not like you because you are old,” does not render
    Russell’s evidence infirm.   See, e.g., Normand, 927 F.2d at 864
    n.4 (“[I]ndirect references to an employee’s age . . . can
    support an inference of age discrimination.”).   Thus, the content
    of Ciulla’s remarks could be found by a jury to manifest age
         Next, a jury could find that these remarks were made by one
    “principally responsible” for Russell’s termination.     See Reeves,
    120 S. Ct. at 2110.   Typically, the person with authority over
    the employment decision is the one who executes the action
    against the employee.   However, that is not necessarily the case.
    See Long v. Eastfield Coll., 
    88 F.3d 300
    , 306 (5th Cir. 1996)
    (“[O]rdinary employees . . . normally [cannot affect the
    employment of their co-employees.]” (emphasis added)).    If the
    employee can demonstrate that others had influence or leverage
    over the official decisionmaker, and thus were not ordinary
    coworkers, it is proper to impute their discriminatory attitudes
            Ciulla disputes that he repeatedly called Russell “old
    bitch,” but in reviewing judgment as a matter of law, we make all
    reasonable inferences in favor of the nonmoving party and do not
    make credibility determinations. See Reeves, 120 S. Ct. at 2110.
    Further, defendants on appeal also concede that we must take as
    true that Ciulla made those comments.
    to the formal decisionmaker.   See, e.g., id. at 307 (stating that
    if official decisionmaker “merely ‘rubber stamped’” the wishes of
    others, that decisionmaker would inherit the discriminatory
    taint); Haas v. Advo Sys., Inc., 
    168 F.3d 732
    , 734 n.1 (5th Cir.
    1999) (rejecting defendant’s argument that subordinate exerted no
    influence over ultimate decisionmaker and thus determining that
    sufficient evidence existed to demonstrate a causal nexus between
    the discriminatory remarks and the employment decision (citing
    Long, 88 F.3d at 307)).
         Our sister circuits also support this approach.13   For
    instance, in Shager v. Upjohn Co., Judge Posner, writing for a
    panel of the Court of Appeals for the Seventh Circuit, reversed a
    summary judgment for the employer in an ADEA case, finding that
    the influence of the person with the discriminatory attitude may
    well have been decisive in the employment decision.   See 
    913 F.3d 398
    , 405 (7th Cir. 1990).   “If the [formal decisionmakers] acted
    as the conduit of [the employee’s] prejudice — his cat’s paw —
    the innocence of the [decisionmakers] would not spare the company
    from liability.”   Id.
         Many circuit cases have also echoed the idea underlying
    Judge Posner’s “cat’s paw” analysis that courts will not blindly
            If this were not so and we adhered to a rigid
    formalistic application, employers could easily insulate
    themselves from liability by ensuring that the one who performed
    the employment action was isolated from the employee, thus
    eviscerating the spirit of the “actual decisionmaker” guideline.
    accept the titular decisionmaker as the true decisionmaker:     “[A]
    defendant may be held liable if the manager who discharged the
    plaintiff merely acted as a rubber stamp, or the ‘cat’s paw,’ for
    a subordinate employee’s prejudice, even if the manager lacked
    discriminatory intent.”   Kendrick v. Penske Transp. Servs., Inc.,
    220 F.3d 1220
    , 1231 (10th Cir. 2000) (citing, inter alia, Long,
    88 F.3d at 307); see also Santiago-Ramos v. Centennial P.R.
    Wireless Corp., 
    217 F.3d 46
    , 55 (1st Cir. 2000) (stating that
    “discriminatory comments . . . made by the key decisionmaker or
    those in a position to influence the decisionmaker” can be used
    by the plaintiff to establish pretext); Ercegovich v. Goodyear
    Tire & Rubber Co., 
    154 F.3d 344
    , 354-55 (6th Cir. 1998)
    (“[Decisionmaker] rule was never intended to apply
    formalistically, and [thus] remarks by those who did not
    independently have the authority or did not directly exercise
    their authority to fire the plaintiff, but who nevertheless
    played a meaningful role in the decision to terminate the
    plaintiff, [are] relevant.”); Griffin v. Washington Convention
    142 F.3d 1308
    , 1312 (D.C. Cir. 1998) (“[E]vidence of a
    subordinate’s bias is relevant where the ultimate decision maker
    is not insulated from the subordinate’s influence.”); Llampallas
    v. Mini-Circuits, Lab, Inc., 
    163 F.3d 1236
    , 1249 (11th Cir. 1998)
    (“In a cat’s paw situation, the harasser clearly causes the
    tangible employment action, regardless of which individual
    actually signs the employee’s walking papers.”); Long, 88 F.3d at
    307 (citing Shager); Kientzy v. McDonnell Douglas Corp., 
    990 F.2d 1051
    , 1060 (8th Cir. 1993) (“A reasonable jury could have found
    that [the employee] used [the decisionmakers] as the conduit of
    his prejudice — ‘his cat’s paw.’”).
         We therefore look to who actually made the decision or
    caused the decision to be made, not simply to who officially made
    the decision.   Consequently, it is appropriate to tag the
    employer with an employee’s age-based animus if the evidence
    indicates that the worker possessed leverage, or exerted
    influence, over the titular decisionmaker.
         As in Reeves, Russell fortified her evidence of age-related
    remarks by “[introducing] evidence that [the speaker of the
    discriminatory remarks] was the actual decisionmaker behind [her]
    firing.”   Reeves, 120 S. Ct. at 2111 (emphasis added).
    Defendants repeatedly emphasize that Russell and Ciulla were both
    managers at the same level and that Russell was officially
    terminated by Jacobsen, her supervisor, not by Ciulla.    However,
    Russell presented adequate evidence at trial for a jury to find
    that Ciulla wielded sufficiently great “informal” power within
    Homecare such that he effectively became the decisionmaker with
    respect to Russell’s termination.     See id. (finding that the
    source of the age-related remarks was the actual decisionmaker
    because of his influence over the company president, his wife,
    who officially terminated the employee); see also Griffin, 142
    F.3d at 1312 (collecting cases from various circuits, including
    the Fifth Circuit).
         To demonstrate that Ciulla was the de facto decisionmaker,
    Russell points to the following evidence:   Ciulla gave Jacobsen
    an ultimatum that he would quit if she did not fire Russell14;
    Jacobsen’s budget was controlled by Ciulla’s father; Jacobsen
    went crying to her assistant Dayna Westmoreland immediately after
    Ciulla’s ultimatum; before the ultimatum, Jacobsen had told
    Russell that she was not going to lose her job over the friction
    between Russell and Ciulla; Ciulla unilaterally transferred an
    employee under Russell’s supervision without her knowledge or
    consent; and Ciulla received “perks” that his colleagues did not,
    such as arriving late at work with impunity, setting up a ping-
    pong table outside his office, and playing in charity golf
    tournaments on company time.
         A jury could find that Ciulla possessed power greater than
    that of the ordinary worker at his level due to his father’s
    position as CEO of the parent corporation and that Ciulla took
    advantage of that power.   Furthermore, the evidence also
    established that Jacobsen was afraid of losing her job.     The jury
    could find that Jacobsen believed her options were limited by the
    fact that Ciulla was the son of the CEO, who controlled her job
            Again, Ciulla denies giving Jacobsen the ultimatum, but
    we take as true that he did. See supra note 12.
    and her budget.15   Thus, it would not be unreasonable for the jury
    to conclude that Jacobsen essentially regarded her decision to
    terminate Russell as ordained by other forces.    Whatever the
    formal hierarchy of Homecare might be, the jury could reasonably
    find that Ciulla contributed significantly to the termination
    decision officially made by Jacobsen.16   In the language of
    Reeves, a jury could find that Ciulla “was motivated by age-based
            While the “perks” received by Ciulla are insufficient,
    per se, to support the inference that he had power over the
    decision to terminate Russell, they do provide evidence of his
    “informal” power within the organization — a power which played a
    role in Jacobsen’s decision. Similarly, in Reeves, the Supreme
    Court took into account that a “letter authored by [the
    individual with the discriminatory animus] indicated that he
    berated other company directors, who were supposedly his co-
    equals, about how to do their jobs.” 120 S. Ct. at 2111. Thus,
    as in this case, the evidence demonstrated that an employee
    possessed greater power than other employees at his level,
    strengthening the link between the age-related remarks and the
    employment decision and providing further support for the
    reasonableness of the jury’s verdict. See id.
            Defendants also argue that the “same actor” inference
    applies. The “same actor” inference arises when the individual
    who allegedly discriminated against the plaintiff was the same
    individual who hired the plaintiff and gives rise to an inference
    that discrimination was not the motive behind plaintiff’s
    termination. See Brown, 82 F.3d at 658. In this case,
    defendants assert that the same person who hired Russell,
    Jacobsen, was also the same person who fired her. However, it
    was not uncontested that Jacobsen hired Russell, and thus, the
    inference is not automatic. Russell presented evidence that she
    was hired and then did a courtesy interview with Jacobsen, who
    had also recently been hired. Again, the jury had both versions
    before it and had the opportunity to take the information into
    account in whatever fashion it found credible. We will not
    substitute our interpretation for that of the jury. Further, we
    also note that the “same actor” inference does “not rule out the
    possibility that an individual could prove a case of
    discrimination.” Id.
    animus and was principally responsible for [the plaintiff’s]
    firing.”    Reeves, 120 S. Ct. at 2110.17   His remarks contribute to
    the evidence demonstrating that the jury’s finding of age
    discrimination was not unreasonable.
         In light of the Supreme Court’s admonition in Reeves, our
    pre-Reeves jurisprudence regarding so-called “stray remarks” must
    be viewed cautiously.18   See Reeves, 120 S. Ct. at 2111.    Before
    Reeves was decided by the Supreme Court, we warned that “the
    ‘stray remark’ jurisprudence is itself inconsistent with the
    deference appellate courts traditionally allow juries regarding
    their view of the evidence presented and so should be narrowly
    cabined.”    Vance v. Union Planters Corp., 
    209 F.3d 438
    , 442 n.4
    (5th Cir. 2000).    Just so.   Age-related remarks are appropriately
    taken into account when analyzing the evidence supporting the
    jury’s verdict (even if not in the direct context of the
    decision19 and even if uttered by one other than the formal
            We also note that the fact that Jacobsen herself was
    similar in age to Russell, although relevant and appropriate for
    the jury to consider, “is certainly not dispositive.” Reeves,
    120 S. Ct. at 2111 (stating that evidence of defendant employing
    other employees over the age of fifty does not negate
    discriminatory motivation regarding the plaintiff).
            See, e.g., Boyd v. State Farm Ins. Co., 
    158 F.3d 326
    (5th Cir. 1998).
            In our post-Reeves case, Rubinstein v. Administrators of
    the Tulane Educational Fund, we affirmed summary judgment for the
    employer on several claims (and affirmed the jury verdict for the
    employee on the remaining claim). See 
    218 F.3d 392
     (5th Cir.
    2000). The Rubinstein plaintiff’s case fell into the narrow
    exceptions crafted by Reeves that “the record conclusively
    decisionmaker, provided that the individual is in a position to
    influence the decision).
         Judge Posner recently explained the distinction between
    cases in which “stray remarks” were not taken into account in
    examining the plaintiff’s case and cases in which such remarks
    are appropriately considered:
         All that these [“stray remarks”] cases hold — and all
         they could hold and still make any sense — is that the
         fact that someone who is not involved in the employment
         decision of which the plaintiff complains expressed
         discriminatory feelings is not evidence that the
         decision had a discriminatory motivation. That is
         simple common sense. It is different when . . . it may
         be possible to infer that the decision makers were
         influenced by [the discriminatory] feelings in making
         their decision. . . . Emanating from a source that
         influenced the personnel action (or nonaction) of which
         these plaintiffs complain, the derogatory comments
         became evidence of discrimination.
    Hunt v. City of Markham, Ill., 
    219 F.3d 649
    , 652-53 (7th Cir.
    2000) (emphasis in original) (internal citations omitted).
    revealed some other, nondiscriminatory reason . . ., or [that]
    the plaintiff created only a weak issue of fact as to . . .
    [pretext] and there was abundant and uncontroverted independent
    evidence that no discrimination had occurred.” 120 S. Ct. at
    2109. In marked contrast to the instant case, the Rubinstein
    record was “replete with evidence of [the employee’s] poor . . .
    evaluations,” Rubinstein, 218 F. 3d at 400, evidence that was so
    overwhelming as to make summary judgment for the employer
    appropriate in spite of evidence of discriminatory animus in the
    form of remarks that the plaintiff wholly failed to tie to any
    potentially relevant time frame. In our remarks jurisprudence,
    Rubinstein stands only for the proposition that an overwhelming
    case that the adverse employment actions at issue were
    attributable to a legitimate, nondiscriminatory reason will not
    be defeated by remarks that have no link whatsoever to any
    potentially relevant time frame. Were we to read more into
    Rubenstein in this regard, it would be in direct conflict with
         We determine that there was sufficient evidence for the jury
    to find that defendants discriminated against Russell on the
    basis of age.   Russell established a prima facie case, introduced
    sufficient evidence for the jury to reject the defendants’ reason
    for her termination, and produced additional evidence of age-
    based animus.   See Reeves, 120 S. Ct. at 2112.   This case was
    “based upon the accumulation of circumstantial evidence and the
    credibility determinations that were required.    We conclude that
    ‘reasonable men could differ’ about the presence of age
    discrimination, Boeing, 411 F.2d at 374, and we must thus reverse
    the district court’s judgment [as a matter of law] and reinstate
    the jury’s verdict.”   Normand, 927 F.2d at 864-65.
                     3. Willful Violation of the ADEA
         The ADEA is willfully violated if the employer “acts in
    ‘reckless disregard’ of the requirements of the ADEA.”    Normand,
    927 F.2d at 865 (citing Trans World Airlines, Inc. v. Thurston,
    469 U.S. 111
    , 128-29 (1985)).   This test applies not only to
    cases in which there is formal discrimination, but also to cases
    in which the age factor is used on an informal, ad hoc basis.
    See Hazen Paper Co. v. Biggins, 
    507 U.S. 604
    , 616-17 (1993).      An
    employer who willfully violates the ADEA is subject to liquidated
    damages.   See 29 U.S.C. § 626(b) (1999).   “The Supreme Court has
    held that liquidated damages are a punitive sanction and should
    be reserved for the most egregious violations of the ADEA.”
    Hansard v. Pepsi-Cola Metro. Bottling Co., 
    865 F.2d 1461
    , 1470
    (5th Cir.), cert. denied, 
    493 U.S. 842
     (1989) (citing Trans World
    Airlines, 469 U.S. at 125).
         As we have discussed in Part III.B, supra, both sides
    presented evidence supporting their respective versions of the
    events.   While the jury could quite reasonably find defendants
    violated the ADEA, we conclude that the same cannot be said for a
    willful violation.   We do not find evidence in the record to
    support the jury’s determination that defendants’ conduct was
    such that it amounted to “reckless disregard.”   See Trans World
    Airlines, 469 U.S. at 127-28 (stating that simply knowing of the
    potential applicability of the ADEA does not meet the “reckless
    disregard” standard because it would be contrary to legislative
    intent by making every violation a willful violation); see also
    Smith v. Berry Co., 
    165 F.3d 390
    , 395 (5th Cir. 1999) (stating
    that there was sufficient evidence for the jury to conclude
    employer’s actions were willful when plaintiff presented evidence
    of company memorandum that categorized employees by age); Burns
    v. Tex. City Refining, Inc., 
    890 F.2d 747
    , 751-52 (5th Cir. 1989)
    (finding a willful violation when plaintiff presented evidence
    that employer acted to terminate him because of his age and
    before his pension benefits vested); Powell v. Rockwell Int’l
    788 F.2d 279
    , 287-88 (5th Cir. 1986) (affirming jury
    finding of willfulness in a case in which jury found that
    plaintiff was fired in retaliation for exercising his ADEA
    rights).   As such, the jury finding of willfulness is not
    supported by sufficient evidence.    Because the jury awarded
    Russell only back pay, and no liquidated damages, we do not
    disturb the jury’s damage award.
                               V. CONCLUSION
         For the above-stated reasons, the judgment of the district
    court is REVERSED in part and the case is REMANDED with
    instructions to reinstate the jury verdict as to a violation of
    the ADEA and damages.   We AFFIRM the judgment of the district
    court as to a willful violation of the ADEA.    Costs shall be
    borne by defendants.