C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants

I respectfully dissent. This appeal raises two important issues in applying St. Mary’s *848Honor Center v. Hicks, 509 U.S. 502, 118 S.Ct. 2742, 125 L.Ed.2d 407 (1993): first, what is the proper standard for granting judgment as a matter of law (JAML) under Hicks; and second, whether jury instructions frequently given in ADEA cases, including this one, are inappropriate after Hicks. Though I agree with the court’s JAML standard, I conclude that KARE 11 is entitled to JAML on the facts of this case, and I further conclude that the district court’s jury instructions were reversible error under…