IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50958
Summary Calendar
ROBERT R. SCHWARTZ,
Plaintiff-Appellant,
versus
ANN VENEMAN, Secretary,
United States Department of Agriculture,
Defendant-Appellee.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. W-99-CV-209)
_______________________________________________________
March 23, 2001
Before REAVLEY, JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Robert Schwartz appeals the district court’s entry of
summary judgment in favor of the United States Department of Agriculture
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited circumstances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. R. 47.5.4.
(USDA). Schwartz sued under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634. Schwartz contends that he was passed over for
promotion to Senior Auditor because of his age. We agree with the order of the
district court and affirm.
Once a plaintiff has made out a prima facie case of age discrimination, the
burden of production shifts to the defendant to show a nondiscriminatory reason for
the contested action. See Reeves v. Sanderson Plumbing Prod. Inc., 120 S.Ct.
2097, 2106 (2000). The plaintiff then must show that the reason given was a
pretext. See id. The plaintiff’s prima facie case, combined with sufficient evidence
of pretext, may permit the trier of fact to conclude that the employer discriminated
unlawfully. See id. at 2109. Whether judgment as a matter of law is appropriate
depends on the circumstances of the particular case. See id.
Here, the USDA contends it decided not to promote Schwartz because he had
limited auditing experience and less seniority at his position than some of the other
candidates, including Pat Lachowsky, who was eventually selected. Regional
Inspector General (RIG) Jack Leavy, who made the decision to promote
Lachowsky, relied on Schwartz’s immediate supervisor Wayne Bynum to assess
Schwartz’s candidacy. Bynum commented that Schwartz was a “good man” but not
ready for the promotion. This assessment was based in part on Schwartz’s lack of
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attention to detail in a particular assignment. Nothing in the record suggests that
Bynum’s assessment was in bad faith. Furthermore, Schwartz does not dispute that
he had less seniority than the candidates who were considered for the position, or
that seniority was a relevant, if not dispositive, factor in the decision. We find
Schwartz’s evidence insufficient to create a fact dispute as to pretext.
Schwartz also tries to prove age discrimination by showing that USDA had a
pattern or practice of discriminating on the basis of age. Schwartz relies on a chart
he produced showing that from the time he started at the USDA until he was passed
over for promotion, there were seven promotions to the position he sought, and all
of them favored younger candidates. The USDA responds by pointing out that in
the seventeen decisions Leavy made while serving as RIG, he chose candidates over
forty ten times (and candidates over fifty three times.) We agree with the district
court that without evidence that the data he presents is statistically significant,
Schwartz cannot show a pattern or practice of discrimination.
AFFIRMED.
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