Dailey v. Johnson & Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 94-10555
(Summary Calendar)

SARAH DAILEY,

Plaintiff-Appellant,

versus

JOHNSON & JOHNSON
CONSUMER PRODUCTS, INC.,

Defendant-Appellee.

Appeal from the United States District Court
For the Northern District of Texas, Dallas Division
(3:93-CV-473-X)

September 26, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges:

PER CURIAM:*

This is an appeal by Plaintiff-Appellant Sarah Dailey from the

district court’s order granting summary judgment to Defendant-

Appellee Johnson & Johnson Consumer Products, Inc. (JJCPI) on her

claim brought under the Age Discrimination in Employment Act

*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
(ADEA).1 As Dailey failed to demonstrate the existence of a

genuine issue of material fact concerning whether JJCPI’s proffered

nondiscriminatory reason for firing her was pretextual, we affirm.

I

FACTS AND PROCEEDINGS

One of JJCPI’s predecessors hired Dailey in 1982 when she was

42 years old. JJCPI was formed in 1989, and Dailey continued to

work as one of the company’s eight part-time retail sales

representatives in the Dallas/Fort Worth area until, in 1992, JJCPI

eliminated all but two of those positions and contracted with an

independent broker to perform the same duties in a larger

territory. Dailey, age 52, was among the part-time representatives

who JJCPI terminated; the two who were kept on were Louise Gallik,

age 48, and Rita Blanton, age 38.

According to JJCPI, its Southern Region Manager, Jim Crotty,

made the final decision about which two of the eight part-time

representatives would be retained to fill the two remaining

positions. He relied in part on the recommendations of Linda

Tiller, the Retail Supervisor, and Ron Lindeman, the District

Manager. Crotty was 42, Lindeman was 52, and Tiller was 40 when

the staffing decision was made. Crotty purportedly based his

decision on five criteria: (1) willingness to work 24-hours per

1
29 U.S.C. § 623(a)(1) (1988)(The ADEA makes it “unlawful
for an employer ... to discharge any individual ... because of such
individual’s age.”)

2
week; (2) past performance ratings; (3) previous experience and

potential to handle the responsibility of servicing and selling to

direct-buying accounts; (4) company service; and (5) geographic

location to direct-buying accounts in the market.

With respect to geography, JJCPI stated that it needed to fill

one position with a candidate who lived in the western part of the

market and the other position with a candidate who lived in the

eastern part. A third part, the central area of the market, would

continue to be served by 58-year old Paul Boynton, a former

Regional Accounts, District, and Retail Operations Manager who,

after his retirement, worked part-time for JJCPI as a Sales

Consultant on a contract basis. Boynton lives in North Dallas.

Three of the eight existing part-time representatives were

automatically eliminated from consideration because they were

unwilling to work 24 hours per week. From the five remaining

candidates, Crotty chose Gallik, who lives in Fort Worth, to fill

the western position and Blanton, who lives east of Dallas in

Rowlett, to fill the eastern position. Like Boynton, Dailey lives

in North Dallas.

Dailey, who worked 10 years for JJCPI and its predecessors

before the staffing decision was made, had more tenure with the

company than either Gallik or Blanton. Gallik had worked only one

year for JJCPI, but she also had significant previous experience

selling directly to customers on behalf of a consumer packaged

goods manufacturer. Blanton had worked a total of approximately 5

3
years for JJCPI, including 2½ years between 1984 and 1986 for one

of JJCPI’s predecessors and another 2½ years as one of JJCPI’s

eight part-time representatives, beginning in 1990. In the three

interim years, she worked as a merchandiser for a major food

manufacturer.

A chart was available to Crotty that ranked the part-time

representatives according to their most recent performance

evaluations, which covered the period from July to December 1991.

Dailey, Gallik, and Blanton had been evaluated by Elaine Bolling,

Tiller’s predecessor as Retail Supervisor. Blanton, with a score

of 98, ranked first out of the five available candidates and first

out of the 50 part-time representatives in the general southern

region. Gallik, with a score of 96, ranked third out of the five

available candidates and seventh in the region. Dailey, with a

score of 95, ranked fourth out of the five available candidates and

eleventh in the region.

Dailey does not complain about JJCPI’s decision to retain

Boynton’s services or about its selection of Gallik to fill the

western position. Instead, she contends that JJCPI should have

selected her over Blanton for the final position. Dailey insists

that her performance was better than Blanton’s, that she had more

relevant experience, that she had more tenure with the company, and

that her geographical location was better suited to JJCPI’s needs.

Therefore, according to Dailey, she was the better candidate for

4
the job under 4 of the 5 criteria used by JJCPI.2

The district court’s summary judgment opinion3 concluded that

Dailey created a fact question regarding the truth of JJCPI’s

proffered nondiscriminatory reasons for firing her, but that this

circuit’s holding in Bodenheimer v. PPG Industries, Inc.4 precluded

Dailey from reaching a jury on the basis of pretext alone. Dailey

timely filed her appeal.

II

DISCUSSION

A. Standard of Review

We review summary judgments de novo, applying the same

standard as the district court.5 Summary judgment is appropriate

only when no genuine issue as to any material fact exists.6 A

dispute about a material fact is “genuine” if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

2
Both Dailey and Blanton satisfied the first criterion
because they were willing to work 24 hours per week.
3
Dailey v. Johnson & Johnson Consumer Products, Inc., 850
F.Supp. 549 (N.D. Tex. 1994).
4
Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.
1993). While the instant appeal was pending, we considered that
issue en banc in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th
Cir. 1996) (en banc).
5
Bodenheimer, 5 F.3d at 956; Waltman v. Int’l Paper Co., 875
F.2d 468, 474 (5th Cir. 1989).
6
Fed. R. Civ. P. 56(c).

5
party.7 In making our determination, we must draw all justifiable

inferences in favor of the nonmoving party.8 As this is an

employment discrimination case, we focus on whether a genuine issue

of fact exists concerning the defendant’s alleged intentional

discrimination against the plaintiff.9

B. Evidentiary Framework

We follow the Supreme Court’s McDonnell Douglas-Burdine Title

VII framework when we review employment discrimination cases

brought under the ADEA.10 The plaintiff bears the initial burden

of proving a prima facie case of discrimination by a preponderance

of the evidence.11 To establish a prima facie case of age

discrimination, the plaintiff “must demonstrate that: (1) he was

discharged; (2) he was qualified for the position; (3) he was

within the protected class at the time of the discharge; and (4) he

was either i) replaced by someone outside the protected class, ii)

replaced by someone younger, or iii) otherwise discharged because

7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Bodenheimer, 5 F.3d at
956.
8
Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Bodenheimer,
5 F.3d at 956.
9
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447-448 (5th
Cir. 1996); Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir.
1993).
10
Bodenheimer, 5 F.3d at 957.
11
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

6
of his age.”12 Once established, the plaintiff’s prima facie case

raises an inference of intentional discrimination.13 The burden of

production then shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged employment action.14

If the defendant comes forward with admissible evidence of a reason

which, if believed, would support a finding that the challenged

action was nondiscriminatory, then the inference raised by the

plaintiff’s prima facie case drops from the case.15 The focus then

shifts to the ultimate question whether the defendant intentionally

discriminated against the plaintiff.16

C. The Plaintiff’s Burden

As the parties concede that Dailey established a prima facie

case and that JJCPI rebutted the prima facie case with evidence of

a legitimate nondiscriminatory reason, we may proceed directly to

the ultimate question: whether Dailey presents sufficient evidence

to allow a jury to decide that JJCPI intentionally discriminated

against her on the basis of her age.

12
Bodenheimer, 5 F.3d at 957.
13
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824;
LaPierre, 86 F.3d at 448.
14
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824;
LaPierre, 86 F.3d at 448.
15
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
255 & n.10, 101 S.Ct. 1089, 1094-95 & n.10, 67 L.Ed.2d 207 (1981).
16
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113
S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).

7
 As direct evidence of an employer’s discriminatory intent is

rare, a plaintiff alleging employment discrimination may prove his

claim through circumstantial evidence.17 Furthermore, a plaintiff

may establish circumstantial evidence of intentional discrimination

by demonstrating that the defendant’s proffered nondiscriminatory

reason is pretextual.18 The plaintiff will survive summary judgment

if the circumstantial evidence supporting his claim is “such as to

allow a rational factfinder to make a reasonable inference that age

was a determinative reason for the employment decision.”19 In

Rhodes v. Guiberson Oil Tools,20 we articulated a two-pronged

standard for determining whether the plaintiff has satisfied this

burden:

[A] jury issue will be presented and a plaintiff can
avoid summary judgment and judgment as a matter of law if
the evidence taken as a whole (1) creates a fact issue as
to whether each of the employer’s stated reasons was what
actually motivated the employer and (2) creates a
reasonable inference that age was a determinative factor
in the actions of which plaintiff complains. The
employer, of course, will be entitled to summary judgment
if the evidence taken as a whole would not allow a jury
to infer that the actual reason for the discharge was
discriminatory.21

17
Rhodes, 75 F.3d at 993.
18
McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825;
Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; LaPierre, 86 F.3d at
449.
19
Rhodes, 75 F.3d at 994.
20
75 F.3d 989 (5th Cir. 1996) (en banc).
21
Id. at 994.

8
 In the instant case, Dailey’s only argument in opposition to

the district court’s grant of summary judgment is the conclusionary

statement that she has created a fact question regarding the

veracity of JJCPI’s proffered nondiscriminatory reason for firing

her. She has supported her bald statement with no discrete facts.

We agree that, in an appropriate case, a plaintiff might be able to

survive a motion for summary judgment without other evidence by

establishing a fact question as to whether the employer’s proffered

nondiscriminatory explanation is false.22 Nevertheless, summary

judgment is appropriate if the plaintiff cannot offer sufficient

supporting evidence to create a fact question on the underlying

issue of pretext.

D. Pretext

Dailey alleges that JJCPI fired her not because Crotty

believed Blanton was more qualified, but because Dailey was nearing

retirement age. Dailey seeks to prove that, once the decision was

made to fire her, JJCPI’s managers conspired to give Dailey poor

evaluations in order to make her look less qualified than Blanton.

Dailey also seeks to establish pretext through her testimony that

she was the only candidate with experience in servicing and selling

22
See Rhodes, 75 F.3d at 994 (“A jury may be able to infer
discriminatory intent in an appropriate case from substantial
evidence that the employer’s proffered reasons are false. The
evidence may, for example, strongly indicate that the employer has
introduced fabricated justifications for an employee’s discharge,
and not otherwise suggest a credible nondiscriminatory
explanation.”).

9
to direct buying accounts, which the new position requires, and

that she lived in a better geographic location than Blanton. We

shall consider each of these contentions in turn.

1. Geography

Dailey takes issue with JJCPI’s contention that Blanton’s home

in the eastern part of the market was a better geographical

location than Dailey’s home in North Dallas. Dailey contends that

her location actually places her in the center of Blanton’s new

territory and closer to most, if not all, of the stores that

Blanton now services. Although this allegation is material and, if

properly supported, would constitute some evidence of pretext,

Dailey offers no supporting evidence other than her own

conclusionary testimony. A jury may not determine that JJCPI’s

proffered explanation is false on the basis of Dailey’s statement

without some supporting evidence, such as information about the

specific locations of the stores relative to Dailey and Blanton,

traffic patterns, times and distances, and the like.23 Dailey

failed to satisfy her burden to produce such supporting evidence.

2. Previous Experience and Potential

Crotty apparently relied on the recommendations of Lindeman

and Tiller regarding each candidate’s previous experience and

23
See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992), cert. denied 113 S.Ct. 82 (1992) (“Mere conclusory
allegations are not competent summary judgment evidence, and they
are therefore insufficient to defeat or support a motion for
summary judgment.”).

10
potential. According to JJCPI, Blanton was desirable because she

was an expert on shelf-management and had experience in creating

and updating “plan-o-grams”24 at the corporate level. Dailey offers

nothing to suggest that JJCPI’s explanation is untrue; rather, she

merely offers evidence that she has won awards in the past for

performing similar duties. Dailey also claims that she was the

only part-time representative with experience servicing and selling

to direct buying accounts, but she admits that she performed such

duties on only three occasions, once in each of the last three

months of her employment.

Even though the evidence Dailey has offered tends to prove

that she is well qualified, it does little if anything to prove

that she is more qualified than Blanton. Moreover, the evidence

does nothing at all to create a fact question regarding the

veracity of JJCPI’s assessment that Blanton was more qualified.

3. Past Performance

JJCPI’s retail supervisors evaluate each part-time

representative on forms that contain two components. The first

component lists various “key objectives”, tailored to each

employee’s particular job duties, along with raw data tracking the

employee’s progress toward each objective. The second component

tabulates “points” given by the retail supervisor according to a

subjective evaluation of the employee’s performance on each key

24
“Plan-o-grams” are schematics of the shelf arrangement of
both JJCPI’s products and those of its competitors.

11
objective. The chart Crotty used to compare the candidates’ past

performances ranked the candidates in order of their total

subjective “points” scored on the evaluation forms for the second

half of 1991.

Dailey opines that she was graded unfairly because the raw

data on her evaluation form reflected a higher level of performance

than Blanton’s but the point total she received was lower than

Blanton’s. For example, the evaluation forms prepared by Tiller

for the first half of 1992 show that Dailey accomplished 229

distributions to Blanton’s 141, but that Dailey received only 20

points to Blanton’s 21. On the basis of that evidence, the

district court concluded that Dailey raised a fact issue on pretext

because it was “apparent that the numbers Plaintiff received in the

Key Objectives are applied backward to her in comparison to the

same application to Blanton.”25

We disagree. As Dailey herself points out, the duties of

part-time representatives varied depending upon the types of stores

in their territories. Thus, a higher number of distributions or a

greater account coverage rate does not evidence better performance

without some common context in which to compare the difficulty of

achieving those numbers. The statistical data is meaningless when

divorced from the subjective evaluation that accompanies it.

Similarly, the fact that Dailey’s score dropped relative to

25
Dailey, 850 F.Supp. at 554.

12
Blanton’s after Tiller became Retail Supervisor in 1992 does not

support an inference that Tiller intentionally graded Dailey down,

much less that age animus was involved. Tiller supervised both

Dailey and Blanton and was in the best position to compare their

relative performance levels after taking differing circumstances

into account. Moreover, Dailey fails to offer any evidence other

than her own speculation that Tiller conspired with others or

otherwise desired to evaluate Dailey unfairly. More importantly,

JJCPI based its past-performance chart on Bolling’s 1991

evaluations, not Tiller’s 1992 evaluations. The evidence shows

that Bolling consistently graded Blanton higher than Dailey, yet

Dailey characterizes Bolling as a friend and does not accuse her of

grading unfairly.

Dailey concedes that her evaluations were slightly lower than

Blanton’s for the last several evaluation periods. She counters

this by opinion testimony of Bolling that it was unfair for JJCPI

to compare performance evaluations because the differences between

employees were small and not reflective of dissimilar job duties.

Such evidence may call into question the wisdom of comparing

employees in the manner that JJCPI chose, but Bolling’s testimony

is of no probative value on the issue of age discrimination

pretext. Dailey cannot survive summary judgment on the strength of

evidence that the criteria JJCPI used to reach its decision was

imperfect. Rather, she must offer evidence that JJCPI’s proffered

explanation is false, and there is nothing in the summary judgment

13
record to that effect.

In sum, Dailey has failed to provide competent, probative

evidence that JJCPI based its decision on some reason other than

the criteria it announced, or that it did not rely on those

criteria. Rather, Dailey seeks to prove that, under JJCPI’s

criteria, she simply was the better candidate for the job. The

ADEA does not empower this court to second-guess an employer’s

legitimate management decisions.26 The question is not whether

JJCPI perfectly appraised the qualifications of each candidate, but

whether its explanation is honest rather than pretextual. For that

reason, a plaintiff cannot create a factual issue of pretext simply

by arguing that the employer’s decision was wrong.

We cannot allow a jury to infer that JJCPI’s proffered reasons

are pretextual absent evidence showing that Dailey was “clearly

better qualified” than Blanton.27 Dailey has failed to do so in

this case.

CONCLUSION

The summary judgment evidence suggests that both Dailey and

Blanton were highly qualified candidates, but that JJCPI decided

that Blanton was the better qualified candidate between the two.

26
See Bodenheimer, 5 F.3d at 959; Bienkowski v. American
Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)(“The ADEA
was not intended to be a vehicle for judicial second-guessing of
employment decisions, now was it intended to transform the courts
into personnel managers.”).
27
Bodenheimer, 5 F.3d at 959.

14
Dailey failed to offer probative evidence that (1) she was clearly

better qualified than Blanton, or (2) JJCPI did not actually base

its decision on the nondiscriminatory criteria that it testified

were used. Therefore, the summary judgment granted by the district

court is

AFFIRMED.

15