UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
Summary Calendar
No. 00-30549
_______________________
Jane F. Smolensky,
Plaintiff-Appellant
versus
Grover C. McDaniel and General Electric Company,
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-1849)
_________________________________________________________________
January 5, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Jane F. Smolensky appeals from the district court’s grant
of summary judgment and other rulings in favor of Defendants-
Appellees Grover C. McDaniel and General Electric Company.
*
Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under the limited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 5th Cir. Rule 47.5.4.
Smolensky’s action is rooted in GE’s decision not to hire her to
fill either of two positions in the Metairie, Louisiana office of
its General Electric Medical Systems Division (“GEMS”). Finding
reversible error only in the grant of summary judgment to GE, we
affirm in part and reverse and remand in part.
BACKGROUND
Smolensky is a former GE employee who worked for three
different divisions of the company (but never for GEMS) over the
course of 28 years, but was laid off in 1996 due to lack of work.
In May, 1998, Smolensky, then age 51, applied for a position as a
“Sales Secretary” at GE’s GEMS unit. Smolensky was interviewed by
Grover McDaniel for this position, but was ultimately not awarded
the job. GE asserts that Smolensky was not hired due to a
restructuring in the Metairie office, which eliminated the Sales
Secretary position. Additionally, McDaniel was not impressed with
Smolensky’s “level of enthusiasm and teamwork spirit.” In the wake
of the office reorganization, the duties of the Sales Secretary
were divided between a new “Parts Analyst” and the “Regional Sales
Administrator.” A thirty year old male was hired for Parts Analyst
position.
In July 1998 the Regional Sales Administrator job opened
up, and Smolensky was again interviewed. Smolensky apparently did
not impress her interviewers, but this point became moot because,
before a new Regional Sales Administrator could be hired, the GEMS
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home office imposed a hiring freeze. Because of the hiring freeze,
the Regional Sales Administrator position was filled by a part-time
contract employee (a former employee of GEMS already familiar with
its work) retained through an outside staffing firm.
Frustrated by her inability to secure a position with GE,
Smolensky filed this lawsuit against GE and McDaniel, the GEMS
Senior Operations Specialist who had initially interviewed her. To
avoid federal court, Smolensky brought claims only under the
Louisiana Age Discrimination in Employment Act and the constitution
of Louisiana, and a breach of contract action. GE removed
Smolensky’s case to federal district court on both diversity and
federal question (ERISA preemption) grounds.1
After discovery, the parties filed cross motions for
summary judgment. After GE had filed its Motion for Summary
Judgment, Smolensky sought leave to amend her complaint, proposing
41 new paragraphs and several new allegations. The district court
granted GE’s motion for summary judgment, denied both of
Smolensky’s motions and entered judgment with prejudice against
her.
Smolensky now appeals, asserting that the district court
improperly denied her motion to remand, erroneously dismissed
1
At the same time that it denied Smolensky’s motion to remand, the
district court dismissed her claims against McDaniel, concluding that he had been
fraudulently joined in the action to defeat diversity and that there was no
possibility that Smolensky could recover against him. Smolensky appealed the
district court’s order denying remand and dismissing all claims against McDaniel,
but on December 6, 1999 this court dismissed Smolensky’s appeal.
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Grover McDaniel, abused its discretion in denying the motion to
amend her complaint, and improperly granted summary judgment to GE.
Having reviewed the parties’ briefs, the district court’s
opinion, and pertinent sections of the record, we summarily reject
certain of her contentions. First, this Court agrees with the
district court that federal jurisdiction was sustainable at least
on diversity grounds, and thus removal was proper. Further,
because “there is no possibility that Plaintiff can recover from
Defendant McDaniel” under the Louisiana age discrimination law or
state constitution, we affirm the dismissal of appellant’s claims
against McDaniel based on the district court’s reasoning and
analysis. The district court’s granting of summary judgment to GE
on Smolensky’s state constitutional and contract2 claims was also
correct. Finally, the district court did not abuse its discretion
in denying Smolensky’s late-filed motion to amend her complaint.
Nance v. Gulf Oil Corp., 817 F.2d 1176 (5th Cir. 1987). The court
did not err in deciding that it raised new factual contentions on
the eve of trial inexcusably, after GE had filed its summary
judgment motion. Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.
1999).3
2
Even if the 1998 handbook applied to Smolensky, it specifically
rejects that its terms create a contract with employees.
3
Cf. Union Planters National Leasing v. Woods, 687 F.2d 117,121 (5th
Cir. 1982) (district court did not abuse its discretion in denying leave to amend
more than a year after suit had been filed and after grant of summary judgment
in favor of opposing party); Daves, 661 F.2d at 1024 (no abuse of discretion
where district court refused leave to amend on eve of trial and proposed
amendment came more than 19 months after commencement of suit); Addington, 650
4
However, a closer examination of the grant of summary
judgment to GE on Smolensky’s Louisiana law age discrimination
claims is warranted in light of the Supreme Court’s intervening
decision in Reeves v. Sanderson Plumbing, ___ U.S. ____, 120 S.Ct.
2097 (2000). The district court acknowledged that Smolensky has
established her prima facie case for age discrimination. What is
at issue are GE’s stated non-discriminatory reasons for its adverse
employment decision regarding Smolensky. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25
(1973); Haas v. Advo Systems, 168 F.3d 732, 733 (5th Cir. 1999).
The district court applied this court’s pre-Reeves
standard to Smolensky’s age discrimination claims and concluded
that Smolensky had not presented sufficient evidence of actual
discrimination to withstand summary judgment. The district court
concluded that “while [Plaintiff-Appellant’s] evidence may support
an inference that the Defendant’s reasons are untrue, it is not the
type of ‘substantial’ evidence that supports a reasonable inference
of discriminatory intent” (emphasis in original).
In the time since the district court entered this order,
the Supreme Court decided Reeves and clarified the standard for
what a discrimination plaintiff must show to rebut a defendant’s
F.2d at 667 (district court was within the bounds of its discretion when it
denied party leave to amend more than a year after the institution of the suit
and where parties had already terminated discovery).
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proffered non-discriminatory justification. The Supreme Court
announced that:
Proof that the defendant’s explanation is unworthy of
credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it
may be quite persuasive. . . . In appropriate
circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose. . . .
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 employer unlawfully discriminated.
Reeves, 120 S.Ct. at 2108. The Supreme Court went on to explain
that “because a prima facie case and sufficient evidence to reject
the employer’s explanation may permit a finding of liability, the
Court of Appeals erred in proceeding from the premise that a
plaintiff must always introduce additional, independent evidence of
discrimination.” Id. at 2109. To survive summary judgment under
the Reeves standard, the plaintiff must introduce evidence
sufficient to allow a reasonable fact-finder to infer that
discrimination did occur. Evidence that the employer’s legitimate,
non-discriminatory reason for its hiring decision is false may
permit or contribute to such an inference.
However, evidence that the employer’s proffered
justification is untrue does not guarantee the availability of an
inference of discrimination. In interpreting Reeves, this Court
has noted that “there will be instances where, although the
plaintiff has established a prima facie case and set forth
sufficient evidence to reject the defendant’s explanation, no
6
rational fact finder could conclude that the action was
discriminatory.” Vadie v. Mississippi State University, 218 F.3d
365, 374 n.23 (5th Cir. 2000). Such an instance would occur where
“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 had
occurred.” Id. (citing to Reeves, 120 S.Ct. at 2109).
Under the somewhat more relaxed Reeves framework,
Smolensky has barely adduced sufficient evidence to create a
genuine issue of material fact as to GE’s alleged discriminatory
motive in not hiring her as a Parts Analyst. Smolensky concedes
that there is no direct evidence of GE’s discriminatory intent.
The probative circumstantial evidence introduced by the Appellant,
though weak, might allow a reasonable juror to infer age
discrimination. In reaching this post-Reeves conclusion, however,
we by no means forecast whether, after a trial, the evidence will
in fact be sufficient to sustain a verdict for Smolensky.
We initially point out what is not probative. Smolensky
relies heavily on the circumstantial argument that she was not
hired by GEMS because, as a former GE employee, she would have been
entitled to a vast amount of vacation time and sick leave, along
with assorted early retirement options and pension benefits.
Assuming, as we must for summary judgment purposes, that this
argument is true and that GEMS refused to hire Smolensky in order
to prevent her from receiving her accumulated GE benefits, this
7
still provides no evidence of age discrimination. The Supreme
Court has held that:
“an employer does not violate the ADEA just by
interfering with an older employee’s pension benefits
that would have vested by virtue of the employee’s years
of service . . . This is true even if the motivating
factor is correlated with age, as pension status
typically is.”
Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701 (1993).
Age and years of service to an employer are separate and
analytically distinct categories. Id. The law does not protect
against discrimination on the basis of costly perks earned through
years of service. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d
144, 149 (5th Cir. 1995) (“ADEA does not provide a cause of action
for interference with retirement benefits that are based on
seniority, without evidence the decision was motivated by age”).
So Smolensky’s circumstantial evidence that GE refused to hire her
based on her pension and leave status is not evidence of age
discrimination at all.
The other critical piece of circumstantial evidence on
which Smolensky relies is the “Schaefer Letter,” the position
letter sent from GE to the federal Equal Opportunity Employment
Commission (“EEOC”) at the outset of the EEOC’s investigation and
prior to this litigation. Smolensky now seeks to use this document
to demonstrate that GE’s proffered non-discriminatory reasons for
not hiring Smolensky were false, thereby allowing the jury to draw
an inference of age discrimination. See Reeves, 120 S.Ct. at
8
2109. GE admits that factual errors were made in the Schaefer
letter, i.e. that Smolensky was applying for a “receptionist
position” (in fact she applied for a more responsible sales
secretary post), and that Smolensky withdrew her application when
GE told her this position and the Regional Sales Manager position
were part-time and/or contract-agency positions (Smolensky denies
these assertions). GE states that the first error was
“immaterial,” but it doesn’t explain how the second error, crucial
to its side of the case, was made. This letter appears to create
discrepancies in GE’s proffered explanations for not hiring
Smolensky. Post-Reeves, a jury issue as to GE’s motivation exists.
For these reasons, the judgment of the district court is
AFFIRMED in Part, and REVERSED and REMANDED in Part.
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