UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-10415
Summary Calendar
_______________________
EARLE DAVID CRIM,
Plaintiff-Appellant,
versus
RICKI TIGERT HELFER,
Chairman of the Federal Deposit Insurance Corporation,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:93-CV-2268-T)
_________________________________________________________________
January 16, 1996
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Earle David Crim filed suit under the Age Discrimination
in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq., against
Ricki Tigert Helfer, in her capacity as chairman of the Federal
Deposit Insurance Corporation (collectively with Helfer, the
*
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this opinion should not be published and is not precedent except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.
"FDIC").1 The district court granted summary judgment to the FDIC,
and Crim appealed. We affirm the district court's judgment.
I. BACKGROUND
In November 1989, Crim was hired, at the age of 59, as an
internal review specialist at the FDIC's Addison, Texas office. In
December 1991, at the age of 61, he was promoted to a section
chief. He contends he was told at that time he would not be
promoted to "Grade 13" until he had satisfactorily served as a
section chief for six months.
Before the six month period expired, the FDIC merged its
Addison and Dallas offices. As a result, the number of section
chiefs was reduced from twelve to eight. Crim was not one of the
eight retained. He was then sixty-two years old. At the time of
the consolidation, the ages of the section chiefs retained were 37,
37, 35, 33, 37, 35, 32, and 40. The ages of those not retained,
including Crim, were 62, 38, 41, and 34.
Crim filed suit, seeking punitive damages, against the
FDIC. He contended it violated the ADEA and Title VII, 42 U.S.C.
§ 2000, by not retaining him as a section chief in the merged
office and by failing to promote him to Grade 13. The district
court granted summary judgment on all claims, dismissing them with
prejudice.
1
Crim's complaint initially named as defendant Andrew Hove, the then-
acting chairman of the FDIC. Helfer subsequently became chairman, and Crim filed,
and was granted, a motion to substitute parties.
2
Crim appeals the district court's grant of summary
judgment on his ADEA claims.2 He contends the district court erred
in finding he did not present sufficient evidence from which a
reasonable fact-finder could infer the FDIC discriminated against
him because of his age in not retaining him as a section chief and
in failing to promote him to Grade 13.
II. DISCUSSION
A. Standard of Review
We review the district court's grant of summary judgment
de novo, applying the same standards as the district court.
Bodenheimer v. PPG Ind., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
Federal Rule of Civil Procedure 56 provides that summary judgment
is appropriate when "there is no genuine issue as to any material
fact." "A dispute about a material fact is 'genuine' if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Bodenheimer, 5 F.3d at 956 (citations
omitted). "In making its determination, the court must draw all
justifiable inferences in favor of the nonmoving party." Id.
(citations omitted).
B. Background on the ADEA
The ADEA makes it unlawful to discriminate against an
individual over 40 years of age with respect to "compensation,
terms, conditions, or privileges of employment because of such
individual's age." 29 U.S.C. § 623(a). Given that the instant
2
Crim does not appeal the district court's grant of summary judgment on
his Title VII and punitive damages claims.
3
case relies on circumstantial evidence to prove discrimination, we
analyze it according to the three-part test enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.E.2d 668
(1973). Initially, the employee must set forth a prima facie case
demonstrating that he or she 1) was within the protected class of
the ADEA; 2) was adversely affected by the employment decision; 3)
was qualified for the position at the time of the adverse decision;
and 4) was replaced by someone younger or was otherwise discharged
because of his or her age. Bodenheimer, 5 F.3d at 957. The
establishment of the prima facie case creates a rebuttable
presumption that the employer unlawfully discriminated against the
employee. Id. The employer may then rebut the presumption by
articulating a legitimate, non-discriminatory business reason for
its action. Id. If the employer articulates such a reason, the
burden reverts back to the employee. He or she must then prove the
employer's reason was only a pretext for discrimination. Id.
To prevail ultimately, the employee must present
sufficient evidence from which a reasonable fact-finder could infer
that the employer's articulated reason was false and that
discrimination was the true reason for the adverse employment
decision. St. Mary's Honor Center v. Hicks, __ U.S. __, 113 S.Ct.
2742, 2750, 125 L.E.2d 407 (1993). The employee must present
"proof that age motivated the employer's action, otherwise the law
has been converted from one preventing discrimination because of
age to ensuring dismissals only for 'just cause' to all people over
4
40." Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508
n.6 (5th Cir. 1988).
Accordingly, at the summary judgment stage, "we must
assess whether [the employee] tendered factual evidence that would
lead a jury to reasonably conclude that [the employer's] reasons
are a pretext for age discrimination." Bodenheimer, 5 F.3d at 958.
We conclude Crim has not presented such evidence, and thus affirm
the district court's grant of summary judgment.
C. Crim's ADEA Claims
1. Failure to Retain as a Section Chief
Crim first contends the FDIC discriminated against him
because of his age by not retaining him as a section chief in the
merged Addison-Dallas office.3 In support, he presents the
following evidence:
1. Seven of the eight section chiefs retained
in the merged office were under forty years
old. Two of the four section chiefs not
retained were over 40. This disparity was
noted by a counselor from the FDIC's Equal
Opportunity Office (the "EEO").
2. The FDIC employee making the retention
decision, Victor Robert, incorrectly stated on
his spreadsheet comparing the qualifications
of the candidates for retention as section
chief, that Crim's supervisor had rated him
"poor" rather than "satisfactory."
3. Robert did not give the spreadsheet to
Ester Vana during the EEO investigation.
3
As did the district court, we assume Crim has established a prima facie
case. The FDIC articulated a non-discriminatory reason for its action.
5
This evidence is insufficient to establish a fact issue
that the FDIC's reasons for not retaining Crim as a section chief
were pretexts for age discrimination.
First, Crim's statistical evidence does not establish an
age discrimination claim because it only analyzes twelve employees.
Statistical evidence on small groups of employees cannot be used to
establish an employer's discriminatory intent.4 Haskell v. Kaman
Corp., 743 F.2d 113, 121 (2d Cir. 1984) (collecting cases).
Similarly, that an EEO counselor noted the "statistics" does not
demonstrate the FDIC discriminated against Crim because of his age.
Second, Crim's allegation that Robert's spreadsheet did
not accurately reflect his supervisor's evaluation of him does not
establish a pretext for age discrimination. Even if Robert's
information was incorrect, Crim cannot demonstrate the FDIC's
reasons for not retaining him were false. Robert relied on
fourteen other factors in deciding which section chiefs to retain.
Further, this evidence does not establish Crim's age was a
determinative factor or even an influence in the FDIC's not
retaining him. Indeed, Robert's initial consolidation plan did
retain Crim as a section chief. However, the regional FDIC office
rejected the plan and ordered further staff cuts.
4
Further, while the Fifth Circuit has recognized that gross statistical
disparities may be used to establish discriminatory intent, Walter v. Lone Star Gas
Co., 977 F.2d 161, 162 (5th Cir. 1992), Crim's statistics do not demonstrate a gross
disparity. Eighty-three percent --ten out of twelve-- of the employees considered
for retention as section chiefs were under age forty. Taking this fact into
account, that the FDIC retained eighty-seven percent --seven out of eight-- of the
under-forty employees does not demonstrate a gross disparity.
6
Third, Crim alleges that, because Robert did not provide
the spreadsheet to the investigating EEO employee when initially
requested, Robert fabricated the spreadsheet "after the fact" to
justify his action. This speculation is insufficient to bar
summary judgment. Travelers Ins. Co. v. Liljeberg Enterprises,
Inc., 7 F.3d 1203 (5th Cir. 1993). Robert has given unrebutted
sworn testimony that he prepared the spreadsheet before making his
final decision.
Fourth, the FDIC presented much uncontradicted evidence
supporting its non-discriminatory reasons for not retaining Crim.
Robert based his selections of which section chiefs to retain upon,
inter alia, each candidate's experience in property management,
technical expertise, leadership skills, aggressive management
style, interaction with senior management, organizational skills,
supervisory skills, and track record in a downsizing environment.
One of Crim's supervisors, Kevie Beard, testified that Crim did not
have experience in property management, did not have an aggressive
management style, had inadequate leadership and management skills,
and generally lacked the specialized knowledge and technical
expertise for the available section chief positions. Overall,
Beard gave Crim's qualifications the lowest rating. Robert also
testified that Crim had inadequate leadership and management
skills.
Therefore, the district court properly granted summary
judgment to the FDIC on Crim's failure-to-be-retained claim.
7
2. Failure to Promote to Grade 13
Crim's contention that the FDIC discriminated against him
due to his age in failing to promote him to Grade 13 is also
without merit. In support, Crim presents evidence that his
supervisors told him he would at some time be considered for the
promotion, that his promotion would not be prohibited by the FDIC's
hiring freeze, and that one of Crim's supervisors, Jerry
Bumbalough, thought he was qualified for the promotion.
This evidence does not support a cause of action for age
discrimination. To the extent Crim's failure-to-promote claim is
based on his failure-to-retain claim, we have rejected his claim
for failing to be retained as a section chief. We thus reject his
claim for failing to be promoted. To the extent his failure-to-
promote claim is independent of his first claim, we find that Crim
cannot establish a prima facie case of discrimination. See Ford v.
General Motors Corp., 656 F.2d 117, 118 n.2 (5th Cir. 1981)
(setting forth requirements for prima facie case for failure-to-
promote discrimination).5 He cannot demonstrate he was qualified
for the promotion. Following the Addison-Dallas offices merger,
Crim was no longer a section chief. He thus did not hold a
position with the potential for a Grade 13 promotion. Further,
5
To establish a prima facie case for failure-to-promote discrimination,
the employee must show:
(1) that he was a member of the protected age group; (2)
that he was not promoted to a given position; (3) that
another person, generally outside the protected age
category, was placed in the position at issue; and (4)
that [the employee] was qualified to fill the position
sought.
Ford, 656 F.2d at 118 n.2.
8
even assuming Crim could establish a prima facie case, his evidence
in no way indicates his age was a determinative factor in his not
being promoted.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
9