IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10931
Summary Calendar
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CLEVE E. SAPP,
Plaintiff-Appellant,
v.
POWER COMPUTING COMPANY; MCDERMOTT, INC.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CV-2518-R)
_________________________________________________________________
April 23, 1996
Before KING, JOLLY, and PARKER, Circuit Judges.
PER CURIAM:*
Cleve E. Sapp filed suit in federal district court in Dallas
against Power Computing Company ("PCC") and its corporate parent,
McDermott Incorporated ("McDermott"), alleging that his
employment with PCC was terminated in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §21.001 et seq. Upon
completion of most of the discovery, PCC and McDermott filed a
motion for summary judgment. After Sapp filed his response, 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this opinion should not be published and is not precedent except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.
district court granted summary judgment for the defendant. Sapp
timely appealed.
The district court properly found, on the basis of the
summary judgment evidence, that Sapp had established a prima
facie case of age discrimination and that PCC had met its minimum
burden of producing a legitimate, nondiscriminatory reason for
his discharge: during a reduction in force at PCC, Sapp was
compared with other individuals to determine who would occupy the
slots remaining after the reduction in force and Sapp was found
to be the least qualified and therefore terminated. Sapp's
appeal focuses on whether the district court was correct when it
determined that the evidence that Sapp produced was not
sufficient to allow a jury to find that this reason was a mere
pretext for age discrimination. Sapp attempted to show in the
district court, and argues on appeal, that the rationale
articulated by PCC for the decision to discharge him was not the
true reason by arguing that the decision was a poor one, i.e.,
that Sapp was as qualified or more qualified than some of the
others with whom he was compared. As PCC correctly argues,
however, a fact finder may infer pretext only if it finds that
"the employee was `clearly better qualified' (as opposed to
merely better or as qualified) than the employees who are
selected [for a job opening]." EEOC v. Louisiana Office of
Community Services, 47 F.3d 1438, 1445 (5th Cir. 1995). We have
reviewed the evidence proffered by Sapp, consisting mainly of his
own subjective evaluation of the relative qualifications of the
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employees at issue, and we agree with the district court that it
does not rise to that level.
Sapp argues that the district court improperly relied on
Sapp's lack of direct evidence of age discrimination. We have
reviewed the district court's opinion with care, and we find no
such reliance. In the interval since the district court's
decision, this court has issued its en banc decision in Rhodes v.
Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc), and
the district court's opinion in this case fares well under the
rationale adopted in Rhodes.
The judgment of the district court is AFFIRMED.
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