EEOC v. Joe's Stone Crabs, Inc., (11th Cir. 2002)

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12917

D. C. Docket No. 93-01082 CV-DTKH

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

versus

JOE'S STONE CRABS, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(July 12, 2002)

Before TJOFLAT, COX and BRIGHT (1), Circuit Judges.

PER CURIAM: Joe's Stone Crab, Inc. ("Joe's") appeals the district court's entry of judgment

in favor of the Equal Employment Opportunity Commission ("EEOC") on the

EEOC's claims, under Title VII, that Joe's intentionally discriminated against four

female applicants -- Carol Coyle, Raquel Munoz, Catherine Stratford, and Teresa

Romanello. Although none of these women actually applied for a position during the

actionable time period, the district court found that Joe's was liable because its

discriminatory hiring practices during that time period deterred the women from

applying. Because this finding is not supported with respect to Coyle and Munoz, we

reverse the district court's judgment as to those applicants. By contrast, the record

does support the district court's finding as to Stratford and Romanello. We affirm the

district court's judgment as to Stratford; as to Romanello, we vacate and remand for

the district court to recalculate damages.

I. Background

The facts and procedural history of this case, which is making its second

appearance before this court, are described thoroughly in the opinion of the previous

panel. See EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000).

Accordingly, we note only that background relevant to our decision in this appeal.

This case began on June 25, 1991, when an EEOC Commissioner filed a

discrimination charge against Joe's pursuant to sections 706 and 707 of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 & § 2000e-6. The charge alleged

that Joe's discriminated against women generally with respect to recruitment, hiring,

and job assignments, but it did not allege discrimination against any specific

individual. (R.5-137, Ex. A.) After investigating the allegations made in the charge,

the EEOC issued a decision finding that Joe's had engaged in a pattern and practice

of intentional discrimination against women by failing to recruit and hire them as wait

staff. (R.5-137, Ex. B at 6.) As required by Title VII, see 42 U.S.C. § 2000e-5(b),

Joe's and the EEOC attempted to conciliate the findings made in the Decision, but

their efforts proved unsuccessful.

Thereafter, on June 8, 1993, the EEOC filed a complaint in federal court

pursuant to § 706, 42 U.S.C. § 2000e-5(f), alleging that Joe's violated Title VII

through both intentional disparate treatment discrimination and unintentional

disparate impact discrimination. The complaint, however, did not allege that Joe's

engaged in a pattern and practice of discrimination, the type of discrimination

specifically referenced in the EEOC's Decision. The EEOC subsequently filed an

amended complaint in response to Joe's motion for a more definite statement. Like

the original complaint, the amended complaint alleged disparate treatment

discrimination and disparate impact discrimination, but it did not allege pattern and

practice discrimination. (2) Unlike the original complaint, however, the amended

complaint identified eighteen individuals allegedly aggrieved by the employment

practices at Joe's. (R.1-38, Ex. A.) Among the individuals identified were Raquel

Munoz, Catherine Stratford, and Carol Coyle, three of the claimants whose claims are

at issue in this appeal. (Id.) The fourth claimant, Theresa Romanello, was identified

later in the proceedings.

The district court held a bench trial on liability, after which it entered a partial

judgment in favor of the EEOC, making factual findings and conclusions of law with

respect to Joe's hiring practices. See EEOC v. Joe's Stone Crab, Inc., 969 F. Supp.

727 (S.D. Fla. 1997). Since the late 1970s, the owners of Joe's have delegated

authority to hire new food servers to subordinate staff. See id. at 731. Food servers

generally are hired at a "roll call," held every year on the second Tuesday in October.

Although Joe's rarely advertises, the district court found that the roll call was "widely

known throughout the local food server community." Id. at 733. In addition, there

existed a "widely-held belief among workers in the Miami food serving industry" that

Joe's did not hire women to fill food server positions. Id. Between 1986 and 1990,

Joe's hired 108 new food servers, all of whom were male. Id. The district court

rejected the EEOC's disparate treatment claims on the ground that the EEOC had not

proven intentional discrimination. See id. at 735. The district court found, however,

that Joe's nonetheless was liable for disparate impact discrimination because its

delegation of hiring authority to subordinate staff resulted in a statistical disparity

between the available female labor pool and the number of females actually hired by

Joe's. See id. at 736-40. With liability determined, the district court then held

another bench trial, this time on remedies, and entered judgments awarding back pay

and prejudgment interest to Stratford, Munoz, Coyle, and Romanello. The district

court also ordered extensive injunctive relief with respect to Joe's hiring practices. (3)

Joe's appealed the district court's entry of judgment on the disparate impact

claims, as well as the imposition of monetary and injunctive relief. The EEOC also

filed a notice of appeal; however, this court subsequently dismissed that cross-appeal

pursuant to the EEOC's own motion. Instead of pursuing the cross-appeal, the EEOC

argued that, if the judgment could not be affirmed for the reasons articulated by the

district court (i.e., unintentional disparate impact), it nonetheless could be affirmed

on the alternative basis that Joe's had discriminated against the claimants

intentionally (i.e., intentional disparate treatment). This court rejected the district

court's finding of disparate impact and vacated its judgment of liability as to the

EEOC's disparate impact claims. See Joe's, 220 F.3d at 1283. But, concluding that

the district court's factual findings might support a finding of intentional

discrimination, the court remanded the case to the district court to "make such factual

findings and draw such conclusions of law about the EEOC's intentional

discrimination claims as it may deem appropriate." Id. at 1287.

On remand, without holding a hearing or receiving supplemental briefing or

argument from the parties, the district court determined that the EEOC proved its

claim of intentional disparate treatment discrimination. See EEOC v. Joe's Stone

Crab, Inc., 136 F. Supp. 2d 1311, 1313 (S.D. Fla. 2001). Reiterating certain of its

previous factual findings, and reaffirming all others, see id. at 1312-13, the district

court then entered an amended final judgment, again awarding back pay and

prejudgment interest to Stratford, Munoz, Coyle, and Romanello. Joe's appeals.

II. Standard of Review

In considering the district court's judgment, we review its factual findings for

clear error and its legal conclusions de novo. See, e.g., Joe's, 220 F.3d at 1273;

Wilson v. Minor, 220 F.3d 1297, 1301 (11th Cir. 2000). We review the district

court's award of back pay for abuse of discretion. See EEOC v. Guardian Pools, Inc.,

828 F.2d 1507, 1511 (11th Cir. 1987).

III. Discussion

Joe's asserts two primary challenges to the district court's judgment. First,

Joe's contends that the district court erred in finding it liable for disparate treatment

discrimination because the evidence is insufficient to support that finding with

respect to any of the four claimants at issue. Second, Joe's contends that, even

assuming that the EEOC established disparate treatment liability as to the four

claimants, the district court erred in its determination of damages and prejudgment

interest. (4)

A. Liability

1. Actionable Period

At the outset, we must establish the appropriate temporal reach of the EEOC's

disparate treatment claims. Section 706 of Title VII, the statute under which the

EEOC brought this action, requires that a plaintiff, including the EEOC itself, exhaust

certain administrative remedies before filing a suit for employment discrimination.

See generally 42 U.S.C. § 2000e-5; Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317

(11th Cir. 2001). The administrative process is initiated by timely filing a charge of

discrimination. See 42 U.S.C. § 2000e-5(b); Wilkerson, 270 F.3d at 1317. For a

charge to be timely in a deferral state such as Florida, it must be filed within 300 days

of the last discriminatory act. See 42 U.S.C. § 2000e-5(e)(1). Accordingly, only

those claims arising within 300 days prior to the filing of the EEOC's discrimination

charge are actionable. See Nat'l R.R. Passenger Corp. v. Morgan, ___S. Ct. ___ , No.

00-1614 (June 10, 2002); Taylor v. Hudson Pulp & Paper Co., 788 F.2d 1455, 1458

(11th Cir. 1986). Because the EEOC filed its charge on June 25, 1991, discriminatory

acts occurring prior to August 29, 1990 are outside the scope of this action.

The EEOC, however, argues that the discrimination in this case constituted a

continuing violation, which extended the limitations period beyond August 29, 1990.

In determining whether a discriminatory employment practice constitutes a

continuing violation, "we must distinguish between the present consequence of a one-time violation, which does not extend the limitations period, and the continuation of

the violation into the present, which does." See Beavers v. American Cast Iron Pipe

Co., 975 F.2d 792, 796 (11th Cir. 1992) (internal quotations omitted). The disparate

treatment claims asserted by the EEOC fall into the former category. The alleged acts

at issue -- the failure to hire the claimants because they were women -- were

discrete, one-time employment events that should have put the claimants on notice

that a cause of action had accrued. See Morgan, ___ S. Ct. at ___; see also Clark v.

Olinkraft, Inc., 556 F.2d 1219, 1222 (5th Cir. 1977) (suggesting that failure to hire

does not constitute continuing violation); (5) East v. Romine, Inc., 518 F.2d 332, 336-37

(5th Cir.), overruled on other grounds, Burdine v. Texas Dep't of Community Affairs,

647 F.2d 513 (5th Cir. 1975), (holding that district court should not have considered

plaintiff's failure to hire claims arising prior to limitations period). Accordingly, the

continuing violation doctrine does not extend the actionable time period beyond

August 29, 1990, and the EEOC had to show acts of intentional discrimination

injuring each of the four claimants that occurred between that date and the filing of

the charge on June 25, 1991. (6)

2. The Legal Framework

As explained above, this appeal involves only claims of disparate treatment

discrimination, i.e., that Joe's intentionally discriminated against Stratford, Munoz,

Coyle, and Romanello by failing to hire them on account of their gender. See Joe's,

220 F.3d at 1273 (explaining that disparate treatment claims require proof of

discriminatory intent). Whether an employer intentionally discriminated against an

employee or potential employee is a question of fact, which may be proved either

through direct or circumstantial evidence. See Green v. Sch. Bd. of Hillsborough

County, 25 F.3d 974, 977-78 (11th Cir. 1994). "Direct evidence of discrimination is

evidence, that, 'if believed, proves [the] existence of [a] fact in issue without

inference or presumption.'" Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.

1999) (quoting Burrell v. Bd. of Trustees of Ga. Military College, 125 F.3d 1390,

1393 (11th Cir. 1997)) (alterations in original).

Absent such evidence, a plaintiff may prove its case through circumstantial

evidence, using the familiar burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and subsequent cases.

Under this framework, the plaintiff initially must establish a prima facie case of

discrimination. See id. at 802, 93 S. Ct. at 1824. By establishing a prima facie case,

the plaintiff creates a rebuttable presumption that the employer unlawfully

discriminated against her. See United States Postal Service Bd. of Governors v.

Aikens, 460 U.S. 711, 714, 103 S. Ct. 1478, 1481 (1983). The burden then shifts to

the employer to rebut this presumption by producing evidence that its action was

taken for some legitimate, non-discriminatory reason. See Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S. Ct. 1089, 1094 (1981). Should the

employer meet its burden of production, the presumption of discrimination is

rebutted, and the inquiry "proceeds to a new level of specificity," in which the

plaintiff must show that the proffered reason really is a pretext for unlawful

discrimination. See id. at 255-56, 101 S. Ct. at 1095-96. Although the intermediate

burdens of production shift back and forth, the ultimate burden of persuading the trier

of fact that the employer intentionally discriminated against the employee remains at

all times with the plaintiff. See id. at 253, 101 S. Ct. at 1093; see also Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106 (2000).3. Analysis

a. Prima Facie Case and Futile Gesture Doctrine

Having reviewed the record, we find no direct evidence of intentional

discrimination toward any of the four claimants between August 29, 1990 and June

25, 1991. Thus, the EEOC's case must be premised on circumstantial evidence and

the McDonnell Douglas framework. In a traditional failure-to-hire case, the plaintiff

establishes a prima facie case by demonstrating that: (1) she was a member of a

protected class; (2) she applied and was qualified for a position for which the

employer was accepting applications; (3) despite her qualifications, she was not hired;

and (4) the position remained open or was filled by another person outside of her

protected class. See Schoenfeld, 168 F.3d at 1267. Joe's contends that the EEOC

failed to establish a prima facie case of discrimination because none of the claimants

applied for a job at Joe's during the actionable period. The EEOC, on the other hand,

maintains that the issue in this appeal is not whether it established a prima facie case,

but whether the district court, having considered all of the evidence as the trier of

fact, clearly erred in its ultimate finding that Joe's intentionally discriminated against

the claimants. Thus, before addressing the district court's finding of liability, we

must determine the exact question before us.

The EEOC correctly points out that, when a defendant fails to persuade the

district court to dismiss the action for lack of a prima facie case and responds to the

plaintiff's proof by offering evidence of a non-discriminatory reason for its actions,

the presumption of discrimination established under the McDonnell Douglas

framework "drops from the case." See Aikens, 460 U.S. at 715, 103 S. Ct. at 1481.

Put differently, "[w]here the defendant has done everything that would be required

of him if the plaintiff had properly made out a prima facie case, whether the plaintiff

really did so is no longer relevant." Id., 103 S. Ct. at 1482. In this case, however,

Joe's did not satisfy its burden of producing evidence of legitimate, non-discriminatory reasons with regard to the actionable period defined above. Joe's

offered no evidence whatsoever to explain why it failed to hire any of the four

claimants during the period between August 29, 1990 and June 25, 1991. (7) Rather,

throughout these proceedings, Joe's has asserted that the claimants' failure to apply

during the 300 days preceding the charge is fatal to the EEOC's claims. The question

before us, then, is whether the district court, as the trier of fact, clearly erred in

finding that the EEOC's prima facie case as to each claimant is supported by a

preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

509-10 & n.3, 113 S. Ct. 2742, 2748 n.3 (1993). (8)

It is undisputed that none of the four claimants applied for a food server

position at Joe's during the time period between August 29, 1990 and June 25, 1991.

Specifically, none of the claimants applied at Joe's October 1990 roll call, the only

time during the actionable period in which Joe's hired food servers. Contrary to the

argument advanced by Joe's, however, this is not the end of the matter. Our

precedent demonstrates that a non-applicant may nonetheless establish a prima facie

case by showing that she refrained from applying due to a justifiable belief that the

employer's discriminatory practices made application a futile gesture. See Taylor,

788 F.2d at 1462; Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972).

To have a "justifiable belief" for purposes of this exception to the application

requirement, a person must demonstrate: (1) that she had a real and present interest

in the job for which the employer was seeking applications; and (2) that she would

have applied for the job but effectively was deterred from doing so by the employer's

discriminatory practices. See Hailes, 464 F.2d at 1008. In this case, the EEOC had

to show that these criteria were satisfied as to each of the four claimants at issue.

b. Real and Present Interest

We conclude that the EEOC did not meet its burden of showing that Coyle and

Munoz possessed real and present interests in food server positions at Joe's during

the actionable period. Coyle, for example, did not apply to Joe's until sometime in

the fall of 1991, and there is no indication that she ever contemplated applying at any

earlier date. In fact, the district court awarded damages to Coyle based solely on her

1991 application, without any finding that she would have applied earlier. (R.11-324

at 12-13.) Munoz likewise did not apply until the fall of 1991, but the district court

found that Munoz intended to apply "long before the October 1989 roll call." (R.11-324 at 10.) Whatever Munoz's intention prior to 1989, however, we have found no

evidence that Munoz had a real and present interest in applying at Joe's at the

October 1990 roll call. The only specific dates mentioned by Munoz were 1983,

when she first wanted to apply but refrained because she thought she was too young,

and 1991, when she actually applied. (R.18 at 583-84.) Although Munoz testified

that she refrained from applying prior to 1991 because she heard that Joe's did not

hire women (R.18 at 584), this testimony does not reveal what specific dates between

1983 and 1991 she contemplated applying. Because the EEOC failed to demonstrate

that Coyle and Munoz had real and present interests in applying at the 1990 roll call,

its prima facie case as to these claimants was not supported by a preponderance of the

evidence, and the district court clearly erred in finding otherwise.

By contrast, the record sufficiently supports a finding that Stratford and

Romanello both possessed a real and present interest in applying during the

actionable period. Although Stratford did not actually apply until October 1991, she

testified that she moved from New Jersey to Miami Beach in 1990 with the intention

of attending Joe's roll call that year. (R.17 at 323, 326-28.) Similarly, even though

Romanello did not apply until October 1993, she testified that she first looked into

working at Joe's several years earlier, making inquiries about the roll calls throughout

the years from 1989 to 1993. (R.16 at 200; R.38 at 396.)

c. Effective Deterrence by Discriminatory Practices

Having established that Stratford and Romanello had real and present interests

in applying at Joe's during the actionable period, the EEOC had to show that these

claimants effectively were deterred from applying at the 1990 roll call by Joe's

discriminatory hiring practices. Both Stratford and Romanello testified that they

failed to apply during the actionable period because they were informed by

acquaintances in the Miami Beach restaurant community that Joe's did not hire

women. (R.17 at 325-27; R.38 at 396-97.) This testimony supports a finding that

these claimants effectively were deterred by Joe's reputation for discriminatory hiring

practices. The only question is whether the evidence supports a finding that this

reputation was caused or perpetuated by Joe's. See Joe's, 220 F.3d at 1281

(explaining that employer may be held liable for discriminatory reputation only if it

caused or perpetuated such reputation through some intentional affirmative act). We

think that it does.

The district court specifically found that, although Joe's did not have an

express policy of excluding women from food server positions, it nonetheless had an

implicit policy to that effect. See Joe's, 136 F. Supp. 2d at 1312-13. According to

the district court's factual findings, the owners delegated complete authority over

hiring decisions to subordinates who "deliberately and systematically excluded

women from food server positions based on a sexual stereotype which simply

associated 'fine-dining ambience' with all-male food service." Id. at 1313.

Moreover, although not directly involved in the hiring process, the owners, "through

their silence, consented to the deliberate and systematic exclusion of women from the

serving staff." Id. Finally, the district court found that it was this implicit consent

that caused the reputation that Joe's discriminated against women. Id.

These findings are supported adequately by the record. Roy Garrett, the night

maitre d' at Joe's with authority to hire and supervise food servers, explained that

male servers were the "accepted thing" at Joe's. (R.22 at 1483.) Garrett further

testified: "It was always tradition from the time I arrived there that it was a male

server type of job. And until just recently when we became aware that we had to do

other things, . . . originally it was traditionally a male place." (R.22 at 1484-85.)

Garrett also testified that, in his opinion, Joe's predominantly male wait staff was part

of the reason that few women applied for food server positions. (R.22 at 1485-86.)

The day maitre d', Anthony Arenson, who also had hiring and supervisory authority

over food servers, testified that gender was never mentioned at Joe's because "many

fine dining establishments throughout the world have an all male staff. I think it was

a perception that people didn't even think about." (R.25 at 2057.)

Arenson also testified about the specifics of the hiring process. According to

Arenson, applicants were judged according to four factors: appearance, articulation,

attitude, and application. (R.18 at 678; R.24 at 1969.) Arenson admitted, however,

that the assessment of these factors was a subjective process, based on the individual

interviewer's "gut-feeling." (R.19 at 699; R.25 at 2002-04.) Arenson also testified

that Joe's had no female food servers in 1990, and no females were hired as food

servers during any of the years from 1987 to 1990. (R.19 at 793, 814.) Robert

Moorehead, the general manager at Joe's since 1986, similarly testified that he could

not remember any women being hired as food servers from 1986 to 1990, and that

this paucity of female food servers did not strike him as odd. (R.22 at 1467.)

Nonetheless, Dennis Sutton, a lunch captain who was actively involved in the

interview process in 1990, testified that women can perform the job of food server

satisfactorily, and Garrett testified that Joe's "always had women that were qualified

women." (R.22 at 1413, 1428, 1485.) Based on this testimony, we cannot say that

the above-referenced factual findings are clearly erroneous.

Accordingly, we conclude that the record adequately supports a finding that

Stratford and Romanello would have applied in October 1990, but were deterred from

doing so by discriminatory hiring practices at Joe's. The EEOC thus satisfied its

prima facie case as to these two claimants. Because Joe's did not offer evidence of

a legitimate, non-discriminatory reason relative to the October 1990 roll call, the

district court's determination that these claimants were subjected to unlawful

discrimination must be sustained. See St. Mary's, 509 U.S. at 510 n.3, 113 S. Ct. at

2748 n.3 (explaining that if trier of fact finds that prima case is supported by

preponderance of the evidence, and defendant fails to meet its burden of producing

evidence of non-discriminatory reason, then fact-finder must find unlawful

discrimination and render verdict for plaintiff).B. Damages

That brings us to Joe's arguments regarding the damages awarded to Stratford

and Romanello. (9) Joe's contends that neither Stratford nor Romanello complied with

the district court's order to produce accurate tax returns, and for this reason, these

claimants may not recover back pay. Additionally, Joe's maintains that the district

court erred both in crediting the back pay calculation of the EEOC's expert economist

and in compounding interest. These arguments are meritless and do not warrant

further discussion. The district court did not abuse its discretion for any of the

reasons advanced by Joe's.

Nonetheless, we must vacate the district court's award of damages as to

Romanello. In calculating damages for this claimant, the district court awarded back

pay beginning in October 1989. As we have explained, the only roll call within the

actionable period occurred in October 1990. On remand, the district court should use

this date as the starting point for its calculations of Romanello's damages. Because

the district court used October 1990 as the starting point for calculating Stratford's

back pay, we affirm the district court's award to this claimant.

IV. Conclusion

We affirm the district court's judgment as to Stratford and reverse that

judgment as to Coyle and Munoz. We vacate the judgment as to Romanello and

remand for recalculation of damages to be awarded to her.

AFFIRMED IN PART; REVERSED IN PART; VACATED AND

REMANDED IN PART.

FOOTNOTES

*. Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit,

sitting by designation.

1. In fact, the EEOC expressly stated before both the district court and this

court that this was not a pattern and practice case.

2. The district court primarily required that Joe's follow certain court-ordered

hiring procedures and allow a court-appointed monitor at its roll calls through

January 1, 2001. The requirements set out by the district court have been

completed, and this injunctive relief is not at issue in this appeal.

3. In addition to its arguments about liability and damages, Joe's argues that

the district court erred in entering judgment for the EEOC because the

discrimination charge, as it relates to the disparate treatment claims, was untimely

under 42 U.S.C. § 2000e-5(e)(1). We think, however, that Joe's argument in this

regard is not concerned with procedure -- i.e., whether the charge was filed timely

-- so much as it is concerned with the substance of the EEOC's proof -- i.e.,

whether the EEOC proved an act of intentional discrimination against each of the

four claimants within the actionable period established by § 2000e-5(e)(1). For

this reason, we think that Joe's timeliness argument is subsumed within our

discussion of the merits.

4. In

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), this court adopted as binding precedent all decisions of the Former Fifth

Circuit handed down prior to October 1, 1981.

5. Although all of the claimants applied and were rejected for food server

positions at Joe's after June 25, 1991, the EEOC does not explicitly argue on

appeal that the ending date of the actionable period should be extended to

encompass these post-charge events. Because this issue has not been presented

squarely, we need not address it. We note, however, that Title VII requires a

charge to be filed "after the alleged unlawful employment practice occurred," 42

U.S.C. § 2000e-5(e)(1), and that "'[o]ccurred' means that the practice took place

or happened in the past." Morgan, ___ S. Ct. at ___; see also id. at ___ ("Each

discrete act starts a new clock for filing charges alleging that act.").

6. Joe's did produce evidence in an attempt to show that, in the years the

claimants actually applied, they were not as qualified as the individuals hired.

Because none of the claimants actually applied until after the EEOC filed its

charge of discrimination, however, this evidence is not relevant to the alleged acts

of discrimination occurring within the actionable period.

7. In any event, even had Joe's met its burden of production, we could still

consider evidence concerning the EEOC's prima facie case in considering the

ultimate question of intentional discrimination. See Reeves, 530 U.S. at 143, 120

S. Ct. at 2106 (explaining that trier of fact may consider evidence establishing

prima facie case when determining issue of pretext); Alexander v. Fulton County,

207 F.3d 1303, 1335 (11th Cir. 2000) (same); Green, 25 F.3d at 978-80

(considering whether plaintiff established prima facie case in analyzing whether

district court's finding of intentional discrimination was supported by substantial

evidence).

8. Because we conclude that the district court's liability determination with

respect to Munoz and Coyle was in error, we need not consider the damages

awarded to those claimants.

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