CASH DISTRIBUTING v. NEELY

DICKINSON, Justice, for the Court.

¶ 1. James A. Neely sued his former employer, Cash Distributing Company, Inc. ("Cash"), claiming he was dismissed because of federally prohibited age discrimination. The jury returned a verdict in Neely's favor, and Cash appealed, urging us to either set aside the verdict because Neely failed to rebut every nondiscriminatory reason offered at trial for the dismissal. or to allow a set-off for the amount of retirement benefits paid to Neely subsequent to his termination. Neely cross-appealed, claiming he was entitled to additional damages.

¶ 2. A sharply divided Court of Appeals affirmed the trial court's decision as to Cash's appeal and affirmed in part and reversed and remanded in part as to Neely's cross-appeal. Cash Distributing Co. v. Neely, No. 2004-CA-01124-COA, 947 So.2d 317, 328, 2006 WL 52246, 2006 Miss.App. LEXIS 6, at *24 (Miss.Ct.App. Jan.3, 2006). Although we find the Court of Appeals reached the correct conclusion in this case, we granted certiorari to address the appropriate allocation of the burdens of proof (both production and persuasion) to be followed in our trial courts in employment discrimination cases.

¶ 3. Cash, is a regional Mississippi beer wholesale distributorship for Anheuser-Busch products, with offices in Starkville, Columbus, and Tupelo. The distributor-ship is a family-owned business founded in Columbus by the late Marvin and Emily Cash, whose grandson, Danny Cash ("Danny"), currently serves as CEO and equity owner. Cash operates pursuant to its distributorship agreement with the brewery, Anheuser-Busch ("the Brewery") in St. Louis, Missouri.

¶ 4. In 1973, Marvin hired Neely, who began a twenty-seven-year climb up the ladder at Cash. In 1996, Neely — who had served for ten years as Sales Manager — was considered for promotion to General Manager of Cash's Columbus operations. Marvin and his son, Mike Cash, who was the executive vice-president, voted in favor of promoting Neely, and Danny, who had just been named vice president, cast the sole dissenting vote.

¶ 5. According to Danny, when his grandfather hired Neely, there was a casual attitude at Cash, and the rules set by the Brewery were often relaxed or ignored. However, in 1997, the Brewery began a new approach to raise its wholesalers up to a minimum standards level. The new approach involved "assessments" which included a visit to the wholesaler by a Brewery representative each spring. At the conclusion of the visit, the Brewery representative provided a list of deficiencies to be addressed. The Brewery then followed up with another visit in the fall to determine whether the identified problems had been addressed and alleviated.

¶ 6. In April 1997, the Brewery's market manager visited Cash's Columbus operation for an assessment and provided a list of issues and problems to be addressed. Immediately after this visit, Danny issued a three-page, single-spaced memorandum to Neely pointing out these issues and demanded that Neely address them before the Brewery's follow-up visit in the fall. The topics listed included customer survey, employee survey, community involvement, standard operating procedures, employee training jacket, assessment manual main books, and steering team. The memo also addressed the need for a market plan.

¶ 7. The following year, Marvin died, and Danny became Cash's CEO. He announced that, due to the new requirements imposed by the Brewery upon its distributors, he intended to strictly enforce the policies and rules. These changes included strict documentation requirements in preparation for the Brewery's periodic assessments and evaluations of Cash's operations.

¶ 8. Danny began to require Neely to submit daily call sheets disclosing where he had been and what he had done each day, and to submit regular written evaluations of the employees who worked for him in the Columbus operation. Danny also instituted a "ride-with" policy, requiring managers (such as Neely) to ride in the truck and visit customers with Cash's salespersons. At trial, Neely testified he understood that the Brewery required these and other technological changes.

¶ 9. Neely frequently failed to timely complete his duties as assigned by Danny, often refusing to complete them at all. In fact, Neely freely admitted at trial that he refused to do tasks for Danny that he often happily did for Marvin. Danny's father, Mike, testified that Neely simply did not want to take orders from Danny. Despite being ordered to provide monthly evaluations on employees, Neely refused to do so. Neely testified that he might have submitted three evaluations on one of the employees from June 14, 1996, to March 3, 2000. Danny abandoned his efforts to obtain the required monthly evaluations, and he directed Neely to provide quarterly evaluations. These Neely also refused to complete. He also declined to use the required tracking forms to prevent out-of-date beer from being sold by Cash's customers.

¶ 10. Danny's evaluations of Neely included both criticism and praise. For instance, in the January evaluation, Danny told Neely he needed to work with team leaders on setting up on-premises promotions. In Neely's February evaluation, Danny stated, "[k]eep up the great job of reducing expenses." Danny's August 1998 evaluation of Neely began with praise: "The accounts I did visit looked really good. We really dominated the cooler displays and other aspects of the business. The trucks have looked good rolling down the road and the warehouse has been clean each time I visited." However, later in the memo, Danny stated, "[i]n order to provide more value vs. `twenty years of service' the positions need to keep adding abilities, not seniority. This is not a social security system."

¶ 11. In the "game plan" for 1999 — while Neely was the general manager of Cash's Columbus operations — Danny stated, "I'm very pleased with the overall direction the impact has given the Columbus operation." Then, in a document Danny prepared called "Jim Neely Time Line," when referring to an employee named Tony Carley who worked for Cash, Danny noted, "[h]e was later promoted to supervisor and actually did most of the work for the other too [sic] much older supervisors that were riding their time out."

¶ 12. In early 2000, Neely rode with one of his salesmen, Mickey Lewis, to visit his accounts. After the visits, neither Lewis nor Neely reported finding any out-of-date product at the customer locations. Soon thereafter, on March 3, 2000, Danny called Neely into a conference and terminated his employment with Cash, replacing him with Carley who, at that time, was 38 years old.

¶ 13. Neely filed suit against Cash in the Circuit Court of Lowndes County, alleging violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"), and at the conclusion of the trial, the jury returned a verdict for Neely and awarded him $120,000.00 in back pay. The jury also found that Cash's violation of the ADEA was not willful.

¶ 14. Cash filed various post trial motions, including a motion for judgment not-withstanding the verdict. Neely also filed post trial motions, including a motion for an additur or, in the alternative, a new trial on damages, as well as a motion for prejudgment and post-judgment interest, attorney fees, and costs. The trial court denied all post trial motions.

¶ 15. Cash timely perfected its appeal, claiming it was entitled to judgment notwithstanding the verdict because Neely failed to rebut all of the nondiscriminatory reasons Cash presented at trial for his dismissal, and that, in any case, the verdict should be offset by $208,896.66 in retirement benefits paid to Neely after he was terminated. Neely cross-appealed, claiming as error the trial court's refusal to grant him an additur or new trial on damages, front pay, prejudgment and post-judgment interest, costs, and attorney fees.

¶ 16. In a majority opinion written by Judge Irving on behalf of a five-judge majority, the Court of Appeals affirmed the trial court on Cash's direct appeal and affirmed in part Neely's cross-appeal, conditioned on Cash's acceptance of an additur in the amount of $58,754; however the majority reversed and remanded on the trial court's failure to grant prejudgment interest, post-judgment interest, loss of in surance benefits, front pay, and attorneys' fees. Cash Distributing, 947 So.2d at 328, 2006 Miss.App. LEXIS 6, at *24.

¶ 17. Judge Griffis, joined by two judges, dissented, pointing out that the record included no direct evidence of age discrimination, because Danny's memos containing age-related comments, when viewed in context, were unrelated to any discriminatory purpose. Id. at 328, at *25 (Griffis, J., dissenting). Cash petitioned this Court for a writ of certiorari, which we granted.

¶ 18. In 1967, the United States Congress passed the ADEA, which "prohibits] arbitrary age discrimination in employment." 29 U.S.C. § 621(b). Specifically, the ADEA makes it "unlawful for an employer to . . . discharge any individual . . . because of such individual's age." Id. § 623(a)(1).

¶ 19. A plaintiff wishing to establish an employer's liability for violation of the ADEA may bring the claim in state or federal court. Id. § 626(c)(1). When a plaintiff brings an ADEA claim in our state courts, we are bound to apply the law as interpreted by the United States Supreme Court. See, e.g., Saunders v. Mullins, 412 So.2d 245, 246 (Miss. 1982).

¶ 20. In setting forth the standard of review for this case, we borrow the following from the Court of Appeals:

When reviewing the denial of a motion for judgment notwithstanding the verdict, we consider the evidence in a light most favorable to the non-moving party (in this case, Neely). We also give the non-moving party the `benefit of all favorable inference [sic] that may be reasonably drawn from the evidence.' 3M Co. v. Johnson, 895 So.2d 151, 160(1130) (Miss. 2005) (quoting Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992)). We will reverse only if the evidence `points so overwhelmingly in favor of the moving party [in this case, Cash] that reasonable jurors could not have found in favor of the non-moving party. Id.

¶ 21. In bringing an ADEA claim, the plaintiff must follow a precise scheme, or allocation, of the burdens of proof (both production and persuasion). Our analysis of these burdens and their application in this case must begin with a review of United States Supreme Court precedent.

¶ 22. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court squarely addressed what it called the "critical issue" of "the order and allocation of proof in a private, non-class action challenging employment discrimination." The McDonnell Douglas Court explained that "[t]he complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802-03, 93 S.Ct. 1817. If that burden is met, the employee must then "be afforded a fair opportunity to show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." Id. at 804, 93 S.Ct. 1817.

¶ 23. Eight years later, the Supreme Court provided additional explanation in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Burdine Court began by restating its holding in McDonnell Douglas:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' [ McDonnell Douglas, 411 U.S.] at 802[, 93 S.Ct. 1817]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804[, 93 S.Ct. 1817].

[t]he nature of the burden that shifts to the defendant should be understood in light of the plaintiffs ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.

¶ 24. Where a plaintiff establishes a prima facie case, discrimination is presumed unless the employer provides a non-discriminatory explanation for the adverse employment action. This is so because the acts establishing the prima facie case, "if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

¶ 25. The Burdine Court went further to state that "[i]f the trier of fact believes the plaintiffs evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case." 450 U.S. at 254, 101 S.Ct. 1089. However, where the employer does "carr[y] [its] burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity." Id. at 255, 101 S.Ct. 1089.

¶ 26. The foregoing is a fair statement of the United States Supreme Court's guidance on the subject as of 1981. The question which remained unanswered, however, was whether a Title VII plaintiff who presented a prima facie case, but offered no rebuttal to nondiscriminatory reasons offered by the employer, could nonetheless prevail. We find the confusion related to this question arises from some courts' misreading of the Supreme Court's holdings in McDonnell Douglas and Burdine. There appears to be an inconsistent understanding and application of the concept of rebutting the employer's nondiscriminatory explanation for terminating the aggrieved employee.

¶ 27. We do not read McDonnell Douglas and Burdine to require a Title VII (or ADEA) plaintiff to rebut with specific evidence each and every nondiscriminatory reason offered by an employer for the termination. We do read them to say that "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination". Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Requiring courts to provide this opportunity is, we think, quite different from saying that the plaintiff must present specific rebuttal evidence as to each nondiscriminatory reason for the dismissal.

¶ 28. The confusion, as demonstrated by the briefing provided to us in this case, arises from Wallace v. Methodist Hospital System, 271 F.3d 212 (5th Cir. 2001). In Wallace, the United States Court of Appeals for the Fifth Circuit held that, once an employer provides evidence of a nondiscriminatory reason for the plaintiffs termination, "`the plaintiff must produce substantial evidence of pretext.'" Id. at 220 (quoting Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001)). Wallace next states that "[t]he plaintiff must put forward evidence rebutting each of the nondiscriminatory reasons the employer articulates." Id. Wallace cites two additional Fifth Circuit cases and one case from the Court of Appeals for the Seventh Circuit for the proposition that a plaintiff "`must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive summary judgment.'" Id. (quoting Clay v. Holy Cross Hospital, 253 F.3d 1000, 1007 (7th Cir. 2001)).

¶ 29. We note that the Fifth Circuit's minority position that the employee rebut "each and every" nondiscriminatory reason proffered by the employer has been adopted by three other courts of appeals. However, we are unable to find any statutory support for the proposition, nor do we find it espoused or approved by any decision of the United States Supreme Court.

¶ 30 While this Court often defers to Fifth Circuit decisions interpreting federal law, we are under no obligation to do so. See, e.g., State v. Montano, 206 Ariz. 296, 77 P.3d 1246, 1247 n. 1 (2003) (Arizona Supreme Court finding it was not bound by the Ninth Circuit's interpretation of the United States Constitution); People v. Dunlap, 975 P.2d 723, 748 (Colo. 1999) (Colorado Supreme Court explaining it was not bound by Tenth Circuit's interpretation of federal constitutional requirements); Stratos v. Dep't of Pub. Welfare, 387 Mass. 312, 439 N.E.2d 778, 787 n. 8 (1982) (Supreme Judicial Court of Massachusetts finding that although the calculation of an award under § 1988 was governed by federal law, it was not bound to follow the method adopted by the First Circuit); State v. Cody, 319 Mont. 82, 82 P.3d 27, 30 (2003) (Montana Supreme Court refusing to follow Ninth Circuit's interpretation of federal law, stating the Courts of Appeals "do not have appellate jurisdiction over the state courts and their decisions are not conclusive on state courts, even on questions of federal law"); Lincoln Elec. Sys. v. Neb. Pub. Serv. Comm'n, 265 Neb. 70, 655 N.W.2d 363, 371 (2003) (Nebraska Supreme Court noting that while state courts are bound by the United States Supreme Court's interpretation of federal law, they are not bound by circuit courts' interpretations); Commonwealth v. Cross, 555 Pa. 603, 726 A.2d 333, 338 n. 4 (1999) (Pennsylvania Supreme Court holding that it was not bound by Third Circuit decisions interpreting United States Supreme Court jurisprudence); Lundborg v. Keystone Shipping Co., 138 Wash.2d 658, 981 P.2d 854, 862-63 (1999) (Washington Supreme Court refusing to follow Ninth Circuit's interpretation of federal maritime law issue). We will not hesitate to take a different path where we conclude it is necessary to comport with controlling precedent from the United States Supreme Court.

¶ 31. We find the plaintiffs burden of rebutting the employer's nondiscriminatory reasons for termination is clearly described by the following statement in Burdine:

A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiffs initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual. Indeed, there may be some cases where the plaintiffs initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant's explanation.

concluded that petitioner `very well may be correct' that `a reasonable jury could have found that [respondent's] explanation for its employment decision was pretextual.' Nonetheless, the court held that this showing, standing alone, was insufficient to sustain the jury's finding of liability: We must, as an essential final step, determine whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision.' And in making this determination, the [Fifth Circuit] ignored the evidence supporting petitioner's prima facie case and challenging respondent's explanation for its decision. . . . [T]he [Fifth Circuit] proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination. In so reasoning, the [Fifth Circuit] misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence.

(Internal citations omitted). The Court went on to specifically stress

`[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.'

¶ 32. Cash argues that Neely failed to rebut every nondiscriminatory reason offered for his termination. We take Cash's argument to mean that Neely had to offer proof that each of the events Cash claims led to his dismissal did not actually happen. For instance, under Cash's view of the rebuttal requirement, once Cash asserts it terminated Neely because he refused to fill out certain forms, Neely must come forward with some proof that he actually did fill out the forms. It is this view of the rebuttal requirement that we find unduly restrictive and without foundation in any employment discrimination decision from the United States Supreme Court. Indeed, the language quoted above from Reeves that "[t]he fact finder's disbelief of the reasons put forward by the defendant" does not require the factfinder to disbelieve a particular event occurred, but rather requires the factfinder to find that — even if it did occur — it was not the motivating reason for the dismissal. The jury in this case could very well have found that all of Danny's testimony about Neely's insubordination, while true, was not the real reason for Neely's dismissal.

¶ 33. Stated another way, we find the binding Supreme Court precedent requires only that Neely rebut Cash's nondiscriminatory reasons for the dismissal by persuading the jury that, true or not, the reasons offered by Cash were not the motivating reasons for his termination. Thus, Neely was free to admit that some or all of the wrongful acts attributed to him by Cash were true but were not the real reason for his dismissal.

¶ 34. It is not enough, of course, for Neely simply to make the claim. He must produce some proof which persuades the jury that the true reason for his termination was impermissible age discrimination. And because Neely did exactly that in this case, that is, he produced evidence which persuaded the jury that the real motivation for his dismissal was impermissible age discrimination rather than the reasons proffered by Cash, we must leave the jury verdict undisturbed unless we find that, viewing the evidence in the light most favorable to Neely, no reasonable, rational juror could have reached the same conclusion. Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 54 (Miss. 2004).

¶ 35. In light of this precedent, we decline to follow the Fifth Circuit's view that an ADEA plaintiff must specifically rebut each and every nondiscriminatory reason offered by the employer its adverse employment action. Instead, we shall now fulfill our duty to set forth the test to be used in our state courts for determination of ADEA claims. This test is not new, but is simply a restatement of the test as pronounced and discussed in the United States Supreme Court precedent cited herein, and a rejection of the test set forth by the Fifth Circuit in Wallace.

¶ 36. First, an ADEA plaintiff must establish a prima facie case by showing (1) he or she was a member of the class protected by the ADEA ("individuals who are at least 40 years of age," 29 U.S.C. § 631(a)), (2) he or she was otherwise qualified for the position, (3) he or she suffered an adverse employment action, and (4) he or she was replaced by a substantially younger person. Reeves, 530 U.S. at 142, 120 S.Ct. 2097; see also O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

¶ 37. Once an ADEA plaintiff establishes a prima facie case (assuming the factfinder believes the facts establishing the prima facie case are true), a presumption arises that the employer engaged in impermissible discrimination, and absent some response by the employer, judgment must be entered for the plaintiff.

¶ 38. If the employer responds by proffering nondiscriminatory reasons for the employment decision, the employee must be afforded an opportunity to submit additional evidence that the nondiscriminatory reasons offered by the employer were pretextual, and that the employment decision was motivated by impermissible discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. In responding to a particular nondiscriminatory reason proffered by the employer, the plaintiff may claim either that the event never happened at all, or that the event did, in fact, happen, but was not the true reason for the adverse employment decision. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. In either case,

[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.

¶ 39. The plaintiff may, of course, offer additional evidence of discrimination, such as the employer's verbal or written comments indicating a discriminatory animus. The plaintiff may also offer additional evidence of pretext, such as evidence that the reason offered by the employer for the adverse employment decision also applied to other employees who were not subjected to the same punishment.

¶ 40. The jury must consider all of the evidence submitted at trial and determine whether the motivating factor for the employer's action was impermissible discrimination. In other words, even though several factors may have contributed to the adverse employment action, if the jury finds that the employee would not have been terminated or subjected to the adverse employment decision absent impermissible discrimination, the plaintiff should prevail.

¶ 41. This Court confronted the issue in Columbus Paper Chemical, Inc. v. Chamberlin, 687 So.2d 1143, 1145 (Miss. 1996), in which a former employee brought an ADEA claim against his employer, This Court held that although the employee established a prima facie case of discrimination, he failed to rebut all of the employer's age-neutral reasons for the termination. Id. at 1150. This Court also held that even if the employee had rebutted all of the employer's nondiscriminatory reasons, a reasonable jury could not have concluded that the termination was due to impermissible discrimination. Id. at 1153. To the extent we held in Columbus Paper-that the employee was required to rebut each and every nondiscriminatory reason proffered by the employer for the termination, it is overruled. We now proceed to apply this test to the case before us today.

¶ 42. Cash does not contest that Neely established a prima facie case of discrimination under the ADEA. Instead, Cash claims it discharged Neely for the nondiscriminatory reasons of insubordination and his failure to discover and report out-of-date product on a particular occasion while riding with a salesman. Neely might have claimed that this event never happened at all, which would have served as evidence to rebut Cash's proffered reason for termination. Had this happened, the jury would have been free to believe whichever version of the facts it found credible, and the matter would have proceeded to verdict.

¶ 43. Instead, Neely did not deny that most of the events claimed by Cash occurred. However, Neely offered substantial evidence that these events were not the reason for his termination. For instance, Neely offered evidence that despite Cash's claims of insubordination and poor performance, his operation in Columbus received perfect scores following several evaluations by the Brewery. Neely also offered evidence that out-of-date product was fairly common and that the extremely meticulous audit of his territory was unprecedented, amounting to (according to another witness) a "witch hunt."

¶ 44. Additionally, Neely offered evidence showing that Danny possessed discriminatory animus toward him. This and other evidence of discrimination offered by Neely is fairly set forth in Judge Irving's majority opinion submitted on behalf of the Court of Appeals. Cash Distributing, 947 So.2d at 322, 2006 Miss.App. LEXIS 6, at *6-9.

¶ 45. The jury in this case obviously credited Neely's account of his dismissal and the evidence supporting it over explanations supplied by Cash. This Court has no basis to disturb that decision on appeal. The jury was free to find that even if, as Cash claimed, Neely had been insubordinate, that justification was pre-textual based on evidence of unequal treatment, age-related statements made by Cash's CEO, and the impeachment of Cash's witnesses. As Judge Irving stated, "[t]he responsibility of determining what evidence is credible and what is not is the proper province of the jury." Id. at 322, at *6 (citing Doe v. Stegall, 757 So.2d 201, 205 (Miss. 2000)). A motion for judgment not-withstanding the verdict must be denied where "there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions." Alfa Ins. Corp. v. Ryals, 918 So.2d 1260, 1261 (Miss. 2005). Such is the case here.

¶ 46. In Reeves, the United States Supreme Court held that the Fifth Circuit "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." 530 U.S. at 153, 120 S.Ct. 2097. We will not make that same mistake here, and we therefore find that the jury's determination of Cash's liability must be affirmed.

¶ 47. We turn now to the remaining issues raised on appeal. After careful review, we find the Court of Appeals correctly disposed of those issues.

¶ 48. We overrule Columbus Paper insofar as it requires an ADEA plaintiff to rebut each and every nondiscriminatory reason for an adverse employment decision proffered by the employer. We affirm the circuit court's judgment as to the two issues raised in Cash's direct appeal, As to Neely's cross-appeal on the issue of the adequacy of damages, we affirm the trial court's decision, provided that, within thirty days of the issue of the mandate, Cash accepts and pays an additur in the amount of $58,754. If Cash does not accept the additur, we order a new trial on damages only. We reverse the trial court's denial of Neely's claim for prejudgment and post-judgment interest, loss of insurance benefits, front pay, and attorney's fees, and we remand for further proceedings consistent with this opinion.

¶ 49. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS AFFIRMED ON DIRECT APPEAL AND AFFIRMED IN PART, ADDITUR GRANTED AND REVERSED AND REMANDED IN PART ON CROSS-APPEAL.

COBB, P.J., DIAZ, GRAVES AND RANDOLPH, JJ., CONCUR. CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., AND WALLER, P.J. EASLEY, J., NOT PARTICIPATING.