UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 92-3770
_______________
CALVIN RHODES,
Plaintiff-Appellee,
versus
GUIBERSON OIL TOOLS, a/k/a F.I.E.,
a/k/a DIV. DRESSER IND. INC.,
Defendant-Appellant.
__________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
__________________________________________________
(November 23, 1994)
Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL,
District Judge.*
DeMOSS, delivered the majority opinion. ZAGEL filed a special
concurring opinion. GARZA filed a dissenting opinion.
Calvin Rhodes sued his former employer, Guiberson Oil Tools
("Guiberson Oil"), alleging that Guiberson Oil terminated him on
account of his age, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-34 (1988) ("ADEA"). The parties
stipulated that a magistrate judge would decide all issues except
liability. The liability issues were tried to a jury who found
that Guiberson Oil had discriminated against Rhodes. Guiberson Oil
*
District Judge of the Northern District of Illinois, sitting by
designation.
moved for judgment as a matter of law both before and after the
jury verdict. The magistrate judge dismissed Rhodes' case with
prejudice because Rhodes, prior to bringing this action, failed to
timely file a charge with the Equal Employment Opportunity
Commission. Rhodes appealed the dismissal, contending that his
suit was not time-barred. A panel of this court agreed, reversed
the magistrate judge's decision setting aside the jury verdict, and
remanded for a determination of damages. See Rhodes v. Guiberson
Oil Tools Div., 927 F.2d 876 (5th Cir.), cert. denied, ___ U.S.
___, 112 S. Ct. 198, 116 L. Ed. 2d 158 (1991) (Rhodes I). In so
holding, the panel specifically noted that the question of whether
the evidence supported the verdict was not before it. Id. at 887.
After remand, the magistrate judge held a hearing on damages and
determined that Rhodes had sustained damages in the amount of
$188,866.70. Guiberson Oil renewed its motion for judgment as a
matter of law on lack of evidence but the magistrate denied such
motion. Guiberson Oil now appeals both the jury's finding of
liability and the magistrate judge's calculation of damages.
Rhodes cross-appeals both the jury's finding that Guiberson Oil did
not willfully violate the ADEA and the magistrate judge's
calculation of damages. Finding the evidence of discrimination to
be insufficient, we reverse the judgment based on the jury verdict,
and render judgment for Guiberson Oil.
2
I
The critical issue in dispute on this appeal is sufficiency of
the evidence to support a jury finding of age discrimination. That
issue calls upon us to exercise our appellate review responsibility
to determine whether there was sufficient evidence upon which a
reasonable jury could rationally conclude that Guiberson Oil
discriminated against Rhodes on the basis of age. The testimony
presented at trial showed the following.
From 1955 until May 1986, Rhodes sold wireline products for
the Atlas Division of Dresser (Atlas) and the corporate
predecessors of that division. With the collapse of oil prices in
the early 1980's and the resulting sharp decline in domestic oil
drilling and production, Atlas along with many other companies in
the oil field services industry experienced severe economic
difficulties. In response to these pressures, Atlas reduced the
size of its sales force from 70 to 25 through major layoffs
occurring in 1984, 1985, and early 1986. In each round of these
layoffs, Atlas attempted to retain the strongest performers and to
let go the least productive personnel. Each time, the Company cut
the bottom five percent of performers. Rhodes survived each of
these prior reductions in personnel. However, in March 1986, faced
with the need to reduce sales forces still further, Rhodes'
immediate supervisor decided to let Rhodes go. Rhodes selection
for that round of layoffs was based on his lack of technical
ability, in comparison to the other remaining sales personnel, and
3
his declining customer base. Rhodes' supervisor personally
informed him both of his layoff and of the reasons for it.
However, before Rhodes' termination from Atlas became effective, a
company official found Rhodes a position selling another product
line and Rhodes accepted this transfer in lieu of termination.
This new product line was transferred from Atlas to Guiberson Oil,
another division of Dresser, in the middle of 1986. This new
product line suffered the same economic difficulties as had
occurred at Atlas. In July 1986, Rhodes' supervisor, Lee Snyder,
as part of a continuing reduction in force (RIF), released a 27-
year old sales representative. In October 1986 it became apparent
further reductions in the sales force were needed. Snyder selected
Rhodes and a 32-year old "technical representative" for termination
because they were his least productive employees. At the time of
his termination, Rhodes was 56 years old and received an annual
salary of $65,000. On Rhodes' severance report, Guiberson Oil
stated both that it discharged Rhodes because of a reduction in
work force and that it would consider re-hiring him. Within two
months, however, Guiberson Oil hired a 42-year old salesman, at an
annual salary of $36,000, to replace Rhodes. During trial, Rhodes
conceded that his sales were low and, in fact, conceded that his
sales were lower than Lloyd Allen's sales, the salesman in the New
Orleans tubing services sector. He even admitted that had he been
management, he would have RIF'd himself instead of Allen. Rhodes
paraded a group of customers before the jury, all confirming that
4
Rhodes was a hard worker. But each customer also confirmed that
his bids were not competitive and that they did not give him the
jobs. Guiberson Oil does not say, and never said, that it fired
Rhodes because he was lazy; it says it selected Rhodes for
reduction in force because his sales were down and his customer
base was eroding, both of which placed him in the bottom five
percent of performers and below Allen. Rhodes' trial strategy was
to attribute the low sales to the company's bidding practice and
use of in-house materials instead of materials competitively priced
in the open market. This showing did nothing to undermine the
legitimate business reason proffered by Guiberson Oil.
Next, it is important to note what is not in the record.
There is no testimony of any kind that Rhodes' age or the age of
any other employee was ever mentioned or discussed as a decision-
making factor. There is no testimony from any fellow employee that
Guiberson Oil's management personnel talked about Rhodes' age.
There is no documentary evidence indicating any internal memorandum
of Guiberson Oil which discussed Rhodes' age. There was no
rebuttal testimony by Rhodes that could have established that
Guiberson Oil had a pattern or practice of reducing the sales force
by terminating older employees. There was no rebuttal testimony
from Rhodes that the 32-year old technical representative was not
actually terminated at the same time as Rhodes. Finally, Rhodes
did not rebut testimony from Snyder, a sales manager above Rhodes,
that Rhodes and the 32-year old "technical representative" were
5
terminated "because they were his least productive employees." In
support of his claim that he had been terminated "because of his
age," Rhodes offered only the following:
1. After Rhodes was terminated, Guiberson Oil hired a 42-
year old1 sales representative to cover sales in the New
Orleans area;
2. Guiberson Oil paid this 42-year old $3,000 per month,
which was approximately $2,000 per month less than Rhodes
had been making; and
3. Alfred Lee Snyder (a sales manager below Givens and above
Rhodes) testified that Givens stated once that he could
hire two younger salesmen for what some of the older
salesmen were costing. Snyder later retracted "younger"
and clarified that he said two "new" salesmen for what
some of the "other" salesmen were costing, but it was
Snyder who offered the statement as the only reference
made to age.
The first two items of proof offered by Rhodes in support of
his discrimination claim simply completed the prima facie case.
The third item of his proof was not spoken with Rhodes in mind and
makes no reference to either Rhodes' age or the age of any "other"
employees who were being over paid. Surely there is no rational
basis for inferring discrimination on the basis of age from such
generalized comments as this. In short, our review of the evidence
1
This "replacement" was over 40 and therefore within the protected class but was younger than Rhodes.
6
in this case leads us to conclude that there is no evidence or
testimony which shows any connection between Rhodes' age and the
decision to terminate his employment.2 In several ADEA cases
decided previously in this circuit, it is clear that our circuit
has not closed its eyes to situations in which this fundamental
lack of evidence exists.3
In his briefs, Rhodes attempts to argue away the insufficiency
of the evidence problem by reiterating the essentials of his prima
facie proof and by repeated references to language used by the
other panel of this court who considered the interlocutory appeal
in Rhodes I. Rhodes argues that these statements indicate that the
severance report was "false" and that the reasons offered by
2
Our colleague in dissent castigates us for our detailed
review of what is and what is not in the testimony before the jury.
We note however that Rhodes did not point out in his brief and the
dissent does not mention any other evidence, direct or indirect,
other than the matters identified in our review of the evidence as
being relevant to a review of sufficiency of the evidence claim.
Furthermore, there were no conflicts in the testimony where the
jury's credibility choice would be binding.
3
See Moore v. Eli Lilly & Co., 990 F.2d 812, 817 n.24 (5th
Cir. 1993) (listing cases in which plaintiffs failed to meet their
burden of proof, including Waggoner v. City of Garland, 987 F.2d
1160 (5th Cir. 1993); Guthrie v. Tifco Indus., 941 F.2d 374, 378
(5th Cir. 1991); Amburgey v. Corhart Refractories Corp., 936 F.2d
805, 813-814 (5th Cir. 1991); Hanchey v. Energas Co., 925 F.2d 96,
98-99 (5th Cir. 1990) (all affirming summary judgment in favor of
defendant); Little v. Republic Refining Co., 924 F.2d 93, 96-98
(5th Cir. 1991) (affirming grant of JNOV in favor of defendant);
Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.
1993); Laurence v. Chevron, U.S.A. Inc., 885 F.2d 280, 284-85 (5th
Cir. 1989) (both reversing jury verdict in favor of plaintiff)).
7
Guiberson Oil therein were "completely misleading" and that
consequently Guiberson Oil's reasons were "pretextual."4
The Rhodes I opinion, however, expressly stated that the panel
had not addressed the issue of the sufficiency of the evidence, and
therefore, whatever conclusions that panel reached are clearly
dicta as to that issue in this appeal. We are at a total loss to
understand how dicta in an opinion on interlocutory appeal, which
made no attempt to evaluate the evidence considered by the jury,
could have any bearing whatsoever on the question of the
sufficiency of the evidence before the jury in this appeal.
During pendency of this appeal, the Supreme Court decided St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993). By Rule
28(j) letter briefs, both sides furnished copies of that decision
with their respective arguments as to how that decision should
impact our determination of this case. Like many 5-to-4 decisions
of the Supreme Court, the opinion in St. Mary's is not easy to
analyze, but from our view, that opinion breaks down into the
following primary and secondary holdings:
4
The dissent echoes Rhodes' arguments, particularly as to what
is called "discrepancies between Rhodes' severance report and
Guiberson's trial justification for his discharge." We see no
discrepancy whatsoever between the language of the severance report
indicating that Rhodes was terminated because of a "reduction in
force" and the testimony presented by Guiberson as to the history
of reductions in force which took place in the offices in which
Rhodes was employed and ultimately affected Rhodes. Likewise, the
language of the severance report indicating that Guiberson would
"consider rehiring" Rhodes is simply a polite way of confirming
that the employee was not fired for misconduct.
8
A. The primary holding of St. Mary's is that an employee
plaintiff is not entitled to judgment as a matter of law,
even though the factfinder concludes that the reasons for
his discharge proffered by the employer were not the real
reasons for such discharge. St. Mary's, 113 S. Ct. at
2751.
B. The secondary holdings of St. Mary's were:
(1) Once a Title VII case has been fully tried to the
factfinder, the McDonnell Douglas/Burdine
framework, regarding prima facie case and the order
and burdens for production of evidence, becomes
irrelevant and disappears; and a case involving a
claim of discrimination should then be treated at
the trial and appellate level just like any other
case calling for an ultimate determination of fact.
Id. at 2753.
(2) The ultimate factual determination in a Title VII
case is: "Did the employer take an action [i.e.
failure to hire, failure to promote or discharge]
by reason of a prohibited factor [i.e., sex, race,
religion, etc.]?". Id. at 2749.
(3) The burden of proof and persuasion on that ultimate
fact remains at all times on the plaintiff. Id. at
2749.
9
C. In addition, there were two other subordinate holdings
which were material to the court's conclusion in St.
Mary's:
(1) The term "pretext" means "pretext for
discrimination". To establish that a proffered
reason for an action taken by an employer was
"pretext for discrimination," the plaintiff must
show both that the employer's proffered reason was
false and that discrimination was the real reason.
Id. at 2752.
(2) Finally, the language of Burdine that a plaintiff
may show discrimination "indirectly by showing that
the employer's proffered explanation is unworthy of
credence" is dictum, which is inconsistent with
other language in Burdine and McDonnell Douglas.
To the extent that such language suggests that
"disproof of the defendant's reason [is] a totally
independent, rather than an auxiliary, means of
proving unlawful intent," such language is "an
inadvertence." Id. at 2753.
We have described in some detail our conclusions as to these
holdings of the majority opinion in St. Mary's because that
decision makes two changes which are critically important to the
resolution on this case:
10
(a) first, whatever the term "pretext" may have meant in the
past, under St. Mary's, it can now only mean "pretext for
discrimination;" and
(b) second, when read as a whole and considering the
controversy between the majority opinion and the dissent
in St. Mary's, it is clear that the Supreme Court ruled
against the theory of "pretext only" under which a Title
VII plaintiff automatically wins if she successfully
shows that the reasons proffered by her employer for her
termination are factually false.
In this case, Rhodes and our colleague in dissent would urge
us to conclude that there is yet a third position articulated
within the majority decision in St. Mary's by the language quoted
in Rhodes' 28(j) letter.5 We decline such invitation, first
because the quoted language is obviously dicta. The trier of fact
in St. Mary's did not make a determination of "discrimination," and
the question before the Supreme Court was not the validity of the
trial court's determination of no discrimination, but the validity
of the Circuit Court's reversal of that determination as a matter
5
That position is that the district court is compelled to
submit the case to the jury once plaintiff creates a fact issue as
to whether the employer's asserted reason is true and is based on
the following language: "The factfinder's disbelief of the reasons
put forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional
discrimination, . . . and the Court of Appeals was correct when it
noted that, upon such rejection, 'no additional proof of
discrimination is required.'" St. Mary's, 113 S. Ct. at 2749.
11
of law. Consequently, in determining what language of St. Mary's
applies to or controls our case, the "dicta language" should yield
to the language involved in the holding of St. Mary's itself.
Secondly, St. Mary's is just not a sufficiency of the evidence
case, and, we should look not only at what the Supreme Court said
in St. Mary's, but what the Court did, i.e., the Court reversed and
remanded the case to the Circuit Court to apply normal appellate
review -- "which should be conducted on remand in this case under
the `clearly erroneous' standard of Federal Rules of Civil
Procedure 2(A)" -- to the determinations made by the trial court in
St. Mary's6. Id. at 2756. The Supreme Court concluded by saying
that such appellate review would be made "consistent with this
opinion." Implicit in the function of appellate review is the
responsibility to determine the sufficiency of the evidence when
that has been properly preserved in the trial below.
This case is not the first time our circuit and other circuits
have addressed the impact of St. Mary's on later cases. In
Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir. 1993), we
held that St. Mary's requires a plaintiff at the summary judgment
stage to tender some evidence that age was a determinative factor
in the employment decision, and that plaintiffs could not rely
6
The holding by the trial court in St. Mary's was: "Plaintiff
has succeeded in proving that the violations for which he was
disciplined were pretextual reasons for his demotion and discharge.
Plaintiff has not, however, proven by direct evidence or inference
that his unfair treatment was motivated by his race." See Hicks v.
St. Mary's Honor Center, 970 F.2d 487, 492 (8th Cir. 1992)
(internal corrections omitted).
12
solely on conclusionary allegations trying to discredit the
employer's reasons. Bodenheimer, 5 F.3d at 959. Similarly, in
Mitchell v. Data General Corp., 12 F.3d 1310 (4th Cir. 1993), the
Fourth Circuit held that the employer's conclusory statements about
performance, which were not expressly age-related, were not
sufficient to raise a fact issue as to the employer's legitimate
non-discriminatory explanation because there was no direct evidence
indicating that plaintiff was discharged based on age. Mitchell,
12 F.3d at 1318 (affirming summary judgment in favor of the
employer). Additionally, in Durham v. Xerox Corporation, 18 F.3d
836 (10th Cir. 1994), the Tenth Circuit cited St. Mary's for the
proposition that when the employer tenders proof of a legitimate
non-discriminatory reason for not promoting the employee, "the
presumption of discrimination from the employee's prima facie case
simply drops out of the picture" and the trier of fact must then
decide the ultimate question of intentional discrimination.
Although the Tenth Circuit cited the very same St. Mary's language
relied upon by Rhodes in his 28(j) letter, it nonetheless concluded
that summary judgment was still appropriate because the employee
had not offered sufficient evidence to support a finding that the
employer's stated reason was a pretext for discrimination. Id. at
840 (affirming summary judgment in favor of the employer).
Finally, in Anderson v. Baxter Health Care Corporation, 13
F.3d 1120 (7th Cir. 1994), the Seventh Circuit recognized that
after St. Mary's, an ADEA plaintiff is not entitled to judgment as
13
a matter of law simply because she proves her prima facie case and
then shows that the employer's proffered reasons for her discharge
are false. Anderson, 13 F.3d at 1125-26. In Anderson, the
employer claimed it had discharged Anderson based on poor
performance. The Court held that even if Anderson had proven that
the employer's stated reason, performance, was a pretext, and that
plaintiff had been discharged to reduce salary, such facts would
not establish age discrimination. Id.
The employee in Anderson also contended that the employer
committed age discrimination by firing him simply to reduce salary
costs; and cited a previous decision in the Seventh Circuit which
supported that contention. However, the Seventh Circuit expressly
recognized that that prior decision had, in effect, been overturned
by the unanimous decision of the Supreme Court in Hazen Paper
Company v. Biggins, U.S. , 113 S. Ct. 1701 (1993), in which
the Supreme Court held that "there is no disparate treatment under
the ADEA when the factor motivating the employer is some feature
other than the employee's age." Hazen Paper, 113 S. Ct. at 1705.
The Supreme Court decided Hazen Paper on April 20, 1993, and
decided St. Mary's on June 25, 1993. In Hazen Paper the Supreme
Court mentions that it is considering the St. Mary's case; but, in
its St. Mary's opinion, the Supreme Court does not cite or refer to
Hazen Paper at all. St. Mary's is of course a Title VII case and
14
Hazen Paper is an ADEA case. Since the case before us is an ADEA
case, we believe that Hazen Paper is more relevant and
determinative to this decision than St. Mary's. We turn now to an
analysis of Hazen Paper.
In Hazen Paper, Biggins (the employee) sued his employer
(Hazen Paper) under ADEA and ERISA and asserted pendent claims in
tort and contract under state law. As in this case, Hazen Paper
was fully tried to a jury. The jury found that Hazen Paper
violated the ADEA and awarded Biggins $560,775 in damages.7 The
jury also found that the ADEA violation was willful (the jury in
this case did not find a willful violation). Both Biggins and
Hazen Paper filed post-trial motions, including specifically a
motion by Hazen Paper under Rule 50(b) for judgment as a matter of
law or in the alternative for a new trial. The trial court granted
judgment as a matter of law in favor of Biggins on the ADEA
violation and on one of the state law claims, awarding damages and
accepting the jury's advisory finding that the ADEA violation was
willful. On appeal, the Circuit Court affirmed the trial court,
relying heavily on evidence that Hazen Paper had fired Biggins in
order to prevent his pension benefits from vesting as support for
the jury finding of an ADEA violation. On appeal, after
reiterating the distinction between "disparate treatment" and
"disparate impact" cases, the Supreme Court reversed the Circuit
7
The jury also found for Biggins on his ERISA claim and some
of his state tort and contract claims.
15
Court and held: "[w]e now clarify that there is no disparate
treatment under the ADEA when the factor motivating the employer is
some feature other than the employee's age." Hazen Paper, 113 S.
Ct. at 1705. Furthermore, the Supreme Court stated, "[a] disparate
treatment claim cannot succeed unless the employee's protected
trait actually played a role in that process and had a
determinative influence on the outcome." Id. at 1706. Finally,
the Supreme Court stated:
"Because age and years of service are
analytically distinct, an employer can take
account of one while ignoring the other, and
thus, it is incorrect to say that a decision
based on years of service is necessarily `age
based'". Id. at 1707.
Accordingly, in Hazen Paper the Supreme Court reversed the
ADEA claim and remanded the case to the Circuit Court to
"reconsider whether the jury had sufficient evidence to find an
ADEA violation." That is the very task which we now have
appropriately addressed here; and in our judgment, Rhodes presented
no evidence or testimony from which a jury could rationally
conclude that age "had a determinative influence" on Guiberson
Oil's decision to terminate him.
We recognize that our dissenting colleague can find opinions
from other circuits which support his contentions as to the meaning
of St. Mary's or more specifically as to the concept that the
language quoted in footnote 5, supra, was intended to fashion some
16
new hybrid test as to what was required to show discrimination.8
If read and applied as suggested by the dissent, the quoted
language would lead to two very momentous developments:
A. Summary judgments for the employer would be eliminated in
Title VII and ADEA suits in cases where even though there
was absolutely no evidence whatsoever of discriminatory
animus or actions the employee plaintiff establishes his
8
With all due respect to our colleague, the six cases cited in
his dissent do not all support his position. Of the six cases
cited by the dissent, four affirmed judgment in favor of the
employer and one reversed judgment in favor of the employee. At
least one, LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.
1993), clearly holds that the test governing when an ADEA case is
entitled to go to the jury is not whether the employee has created
a fact issue as to the employer's articulated reason but whether
there is evidence from which a reasonable juror could find that the
employment decision was motivated by age animus. Id. at 842-43; see
also Marcantel v. Dep't of Transp. and Dev., No. 93-3717, slip op.
at 453 (5th Cir. Nov. 3, 1994) (St. Mary's settled the issue that
"the `pretext-only' doctrine is not enough; even if the employee
proves that the employer's nondiscriminatory reason is pretextual,
the plaintiff must prove that an unlawful discriminatory intent
motivated the employer's action"); Seman v. Coplay Cement Co., 26
F.3d 428, 433 (3d Cir. 1994) (St. Mary's "requires that once an
employer has met its burden of production by coming forward with a
nondiscriminatory business reason for discharging a protected
employee, the plaintiff-employee must then prove that the business
reason was pretextual and that he was intentionally discriminated
against on the basis of age. Proof of one without the other will
not suffice."); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,
1125-26 (7th Cir. 1994) (affirming summary judgment for the
employer notwithstanding evidence creating a fact issue that the
employer's nondiscriminatory reason was false). Manzer v. Diamond
Shamrock Chem Co., 29 F.3d 1078 (6th Cir. 1994), involved only the
issue of the ADEA's application to religious institutions.
Further, we do not by this decision create a Circuit conflict where
there was none before. Compare, e.g., Leblanc, 6 F.3d 836 (1st
Cir. 1993) with Washington v. Garrett, 10 F.3d 1421 (9th Cir.
1993).
17
prima facie case and raises a question of fact as to the
employer's non-discriminatory explanation; and
B. If the case is then tried on its merits and the
factfinder determines that the employer's non-
discriminatory reason is not believable, the employee is
entitled to judgment which cannot be set aside for
insufficiency of the evidence even though the trial
record is absolutely devoid of any evidence or testimony
which relates to discriminatory actions or animus.
In our view, these results are the same as would have occurred
if the minority view in St. Mary's had in fact been adopted by the
majority. We proceed on the assumption that the majority in St.
Mary's did not inadvertently let the cat out of the bag.
Accordingly, we REVERSE the decision of the magistrate judge
to deny Guiberson Oil's motion for judgment as a matter of law and
render judgment in favor of Guiberson Oil. In view of this
decision, the other points of error raised on appeal by Guiberson
Oil and in his cross-appeal by Rhodes are moot.
18
ZAGEL, District Judge, specially concurring.
I join in Judge DeMoss' opinion, but I write separately
because I am troubled by the instructions tendered to the jury in
this case. The jury was told:
Though the defendant claims a legitimate
business reason for the plaintiff's discharge,
you may still find for the plaintiff if you
find that he has proven by a preponderance of
the evidence, that the reasons stated by the
defendant were not the true reasons for the
plaintiff's discharge, or that the plaintiff's
age more likely than not was a determining
factor in his discharge. (Emphasis added.)
This instruction is inconsistent with the Supreme court's
opinion in St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993), and ought not be given. I read St. Mary's to say that a
jury cannot find liability for the plaintiff solely because the
defendant gave a false reason at the time of discharge. This is
what I believe the Supreme Court meant when it said that "nothing
in law would permit us to substitute for the required finding that
the employer's action was the product of unlawful discrimination,
the much different (and much lesser) finding that the employer's
explanation of its actions was not believable." St. Mary's, 113 S.
Ct. at 2751.
Nothing in law necessarily prevents a jury from rejecting the
proffered reason at trial and inferring "the ultimate fact of
intentional discrimination." Id. at 2749. Whether the "lie"
serves as a proxy for discrimination necessarily depends on the
19
context in which the "lie" is uttered. See id. at 2752 (employer's
proffered reason is not a pretext for discrimination "unless it is
shown both that the reason was false, and that discrimination was
the real reason")(emphasis in original.) The basis for this is
simply a recognition that employers rarely tell employees that they
are being discharged for being lousy workers. Employers often
"lie" in different ways for legitimate business reasons, one of
which is to soften the blow to the employee by saying that there is
a reduction in force or that business is being shifted when, in
fact, they are discharging the employee for poor performance.
Clearly, this is not the only ground for the decision in St.
Mary's. But I believe it is one reason. And, I believe the court
in St. Mary's proposed to remedy this problem by carefully drafting
jury instructions so that less emphasis is placed on the employer's
lie at the time of discharge.
The jury here should have been instructed that it may hold the
defendant liable only if it finds that the plaintiff has proven
that the plaintiff's age more likely than not was a determining
factor in the discharge. The jury also should have been instructed
that it may make its usual decisions about whom to believe and that
if it finds that the defendant proffered false reasons for the
plaintiff's discharge at trial, it may (but is not compelled to)
infer from the context of the lie and the other evidence the
ultimate fact that age was a determining factor in the discharge.
20
EMILIO M. GARZA, Circuit Judge, dissenting:
Because the majority 1) fails to view the evidence in the
light most favorable to the jury verdict, 2) fails to articulate
and employ the proper appellate standard of review, and 3) fails to
analyze and apply Supreme Court precedent properly, I respectfully
dissent.
I
Calvin Rhodes began his employment with Guiberson Oil and
other divisions of Dresser Industries in 1955 as a salesman of oil-
industry-related products.1 On October 31, 1986, Guiberson Oil
discharged Rhodes, allegedly because of a reduction in force
necessitated by a recession in the oil industry. At the time of
his termination, Rhodes was fifty-six years old and received an
annual salary of $65,000. On his severance report, Guiberson Oil
stated both that it had discharged Rhodes because of a reduction in
work force and that it would consider rehiring him. Within two
months, however, Guiberson Oil hired a forty-two year old salesman,
at an annual salary of $36,000, to replace Rhodes.
Rhodes subsequently sued Guiberson Oil for violating the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988)
("ADEA"). A jury found that Guiberson Oil terminated Rhodes from
his employment because of his age, but also found that Guiberson
1
In order to properly exercise our appellate function, we view the
evidence in the light most favorable to the jury verdict, that is, to Rhodes.
See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).
Oil had not willfully violated the ADEA.2 The magistrate judge,
after hearing further testimony on the issue of damages, found that
Rhodes had sustained damages in the amount of $188,866.70 as a
result of Guiberson Oil's unlawful conduct. Both Guiberson Oil and
Rhodes now appeal the jury's findings on liability issues and the
magistrate judge's calculation of damages.
II
A
Guiberson Oil, which moved for a directed verdict both at the
close of the plaintiff's case-in-chief and at the close of all the
evidence, contends that the evidence is insufficient to support the
jury's finding of age discrimination. Guiberson Oil thus argues
that the magistrate erred in not granting its motion for judgment
notwithstanding the verdict ("JNOV").3 In reviewing a motion for
JNOV,
2
The parties stipulated that a magistrate judge would
decide all issues except liability. Consequently, after the jury
found that Guiberson Oil had discriminated against Rhodes, the
magistrate judge dismissed Rhodes' case with prejudice because
Rhodes, prior to bringing this action, failed to timely file a
charge with the Equal Employment Opportunity Commission. Rhodes
appealed the dismissal, contending that his suit was not time-
barred. We agreed, reversed the magistrate judge's decision
setting aside the jury verdict, and remanded for a determination of
damages. See Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876 (5th
Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 198, 116 L. Ed. 2d
158 (1991) [hereinafter Rhodes I]. In so holding, we specifically
noted that the question of whether the evidence supported the
verdict was not before us. Id. at 878.
3
This case was tried before the effective date of the 1991
amendments to the Federal Rules of Civil Procedure. Rule 50 now
uses the term "judgment as a matter of law" for both a directed
verdict and a JNOV.
22
the Court should consider all of the evidence))not just
that evidence which supports the non-mover's case))but in
the light and with all reasonable inferences most
favorable to the party opposed to the motion. If the
facts and inferences point so strongly and overwhelmingly
in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict,
granting the motion[] is proper. On the other hand, if
there is substantial evidence opposed to the motion[],
that is, evidence of such quality and weight that
reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions, the
motion[] should be denied. . . . [I]t is the function of
the jury as the traditional finder of the facts, and not
the Court, to weigh conflicting evidence and inferences,
and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en
banc).
B
The ADEA makes it "unlawful for an employer . . . to discharge
any individual . . . because of such individual's age." 29 U.S.C.
§ 623(a)(1). 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 of his age." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955,
957 (5th Cir. 1993). If the plaintiff establishes a prima facie
case, he creates a presumption of discrimination, Texas Dept. of
Community Aff. v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089,
1094, 67 L. Ed. 2d 207 (1981), and the burden shifts to the
defendant to "articulate some legitimate, nondiscriminatory reason"
23
for the challenged action. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). The
defendant may meet this burden by presenting evidence that, "if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action." St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___, 113 S.
Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). If the defendant meets
its burden, the presumption raised by the plaintiff's prima facie
case disappears. Burdine, 450 U.S. at 255 & n.10, 101 S. Ct. at
1095 & n.10. The plaintiff then has the opportunity to
demonstrate, through presentation of his own case and through
cross-examination of the defendant's witnesses, that the proffered
reason was not the true reason for the employment decision, and
that age was. St. Mary's, ___ U.S. at ___, 113 S. Ct. at 2747;
Bodenheimer, 5 F.3d at 957. If he succeeds in doing so, "[t]he
factfinder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of
mendacity) may, together with the elements of the prima facie case,
suffice to show intentional discrimination." St. Mary's, ___ U.S.
at ___, 113 S. Ct. at 2749. On appeal, Guiberson Oil conceded that
Rhodes had established a prima facie case.4 Thus, we must
determine only whether the evidence supports the conclusion that
4
I.e., Guiberson conceded that (1) Rhodes was discharged; (2) he was
qualified for the position; (3) he was within the protected class at the time of
discharge; and (4) he was replaced by someone substantially younger within two
months of his discharge.
24
Guiberson Oil's proffered reason was not the true reason for
terminating Rhodes. Id. ("[R]ejection of the defendant's proffered
reasons[] will permit the trier of fact to infer the ultimate fact
of intentional discrimination, and . . . , upon such rejection, no
additional proof of discrimination is required.").
On Rhodes' severance report, Guiberson Oil indicated that
Rhodes was discharged because of a reduction in work force and that
it would consider rehiring Rhodes. The evidence adduced at trial,
however, showed that these reasons were false: Rhodes' position
was not eliminated as a reduction in force. Moreover, contrary to
the statements contained in the severance report, Guiberson Oil's
defense at trial was that Rhodes was discharged because of his poor
work performance. This contradiction between the false reasons
given on the severance report and the justification presented at
trial could reasonably lead a jury to disbelieve Guiberson's
explanation. Consequently, the evidence supports the jury's
finding that Guiberson Oil's proffered reasons for terminating
Rhodes were pretextual. That disbelief, together with the elements
of Rhodes' prima facie case, permitted))but did not require))the
jury to find that Guiberson Oil intentionally discriminated against
Rhodes on account of his age. See St. Mary's, ___ U.S. at ___, 113
S. Ct. at 2749; Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,
1123-24 (7th Cir. 1994) (noting that "the plaintiff may prevail in
a discrimination case by establishing a prima facie case and by
showing that the employer's proffered nondiscriminatory reasons for
25
. . . discharge are false"); Washington v. Garrett, 10 F.3d 1421,
1433 (9th Cir. 1993) (holding that "the factfinder . . . is
entitled to infer discrimination from plaintiff's proof of a prima
facie case and showing of pretext without anything more").
Additionally, that Guiberson Oil deliberately misled Rhodes
concerning the circumstances of his discharge and that Guiberson
Oil hired a younger person to replace Rhodes shortly after his
discharge constitute relevant evidence of intentional age
discrimination. See, e.g., Ramirez v. Allright Parking El Paso,
Inc., 970 F.2d 1372, 1377-78 (5th Cir. 1992) (holding that evidence
that plaintiff was replaced with younger person and that the
employer's proffered reason for discharge))that it fired plaintiff
for poor job performance))was pretextual constituted evidence of
intentional age discrimination). Accordingly, I would hold that
the evidence sufficiently supported the jury's verdict, and the
magistrate correctly refused to grant Guiberson Oil's motion for
JNOV or its motion for a new trial.5
III
A
5
Compare Atkin v. Lincoln Prop. Co., 991 F.2d 268 (5th
Cir. 1993) (reversing jury verdict of age discrimination where
defendant did not concede that plaintiff established prima facie
case and plaintiff produced no evidence that defendant's reason for
terminating him was pretext for discrimination); Moore v. Eli
Lilly Co., 990 F.2d 812 (5th Cir.) (upholding grant of summary
judgment for defendant where plaintiff established prima facie case
but failed to produce any evidence that defendant's explanation for
its action was pretextual), cert. denied, ___ U.S. ___, 114 S. Ct.
467, 126 L. Ed.2d 419 (1993).
26
The majority, however, finds Rhodes' evidence insufficient to
support the jury's finding of intentional discrimination. My first
disagreement with the majority concerns its review of the evidence.
As an appellate court, we do not substitute our own view of the
weight of the facts for that of the jury. Instead, we view the
evidence in the light most favorable to the jury verdict. Boeing
Co., 411 F.2d at 374-75. Because the jury found in favor of
Rhodes, we view the evidence in the light most favorable to Rhodes.
See id. The majority has failed to do this.6
Moreover, our proper appellate function is not to reweigh the
evidence, but only to determine if there was enough to support the
jury's finding. See id. ("[I]t is the function of the jury as the
traditional finder of the facts, and not the Court, to weigh
conflicting evidence and inferences and determine the credibility
of witnesses."). Therefore, the question is not whether we believe
that Rhodes "undermine[d] the legitimate business reason proffered
by Guiberson," slip op. at 5, but whether the jury could reasonably
have disbelieved Guiberson's evidence. Similarly, although the
majority elaborates on "what is not in the record," see slip op. at
5, whether certain items are missing from the evidence presented is
irrelevant if a jury could nonetheless find intentional
discrimination. Rhodes need not have had an overwhelming case,
6
In fact, the majority's recitation of the facts mirrors the statement
of facts in Guiberson's brief almost verbatim. Compare slip op. at 3-5 with Br.
of Def.-Appellant at 4-7. Guiberson clearly did not construe the facts in its
brief to favor Rhodes.
27
only a sufficient one. Moreover, much of evidence that the
majority castigates Rhodes for lacking is direct evidence,7 which
is typically absent in discrimination cases and not required to
prove intentional discrimination.8 Accordingly, its absence does
not mandate judgment in Guiberson's favor.
The majority limits the evidence it considers favorable to
Rhodes to three items.9 As the panel in Rhodes I noted, however,
Rhodes also provided the severance report. See Rhodes I, 927 F.2d
at 881. The majority seeks to eliminate this evidence by stating
that the conclusions derived in Rhodes I are not conclusive in this
proceeding, and it characterizes these conclusions as dicta in this
appeal. I agree. Nonetheless, that this court need not follow the
conclusions of the prior panel does not require us to ignore the
evidence underlying those conclusions.10 Yet the majority does not
7
See slip op. at 5 (criticizing Rhodes for failing to provide evidence
of discussions of his age by Guiberson management or other employees or
documentation that Guiberson's decision related to his age).
8
A plaintiff may use either direct or circumstantial evidence to prove
a case of intentional discrimination. United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714 n.3, 103 S. Ct. 1478, 1481 n.3, 75 L. Ed.
2d 403 (1983). Because direct evidence is rare in discrimination cases, a
plaintiff ordinarily uses circumstantial evidence and inferences therefrom to
satisfy her burden of persuasion. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082,
1085 (5th Cir. 1994) (applying inferential test developed in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668
(1973)).
9
1) Guiberson replaced Rhodes with a younger person; 2) Guiberson
saved approximately $2,000 per month in salary costs by replacing Rhodes; and 3)
"[o]n one occasion Jack Givens, a general manager, said to Lee Snyder, Rhodes'
supervisor, that could `hire two salesmen for what some of the others are costing
me.'" See slip op. at 6.
10
See Mitchell v. Data General Corp., 12 F.3d 1310, 1317 (4th Cir.
1993) ("The evidence, however, that was offered to establish the prima facie case
remains in the case, together with any evidence presented to show that the
28
include in Rhodes' evidence the discrepancies between Rhodes'
severance report and Guiberson's trial justification for his
termination. Instead, the majority characterizes the severance
report in Guiberson's favor, see slip op. at 8 ("[T]he language of
the severance report indicating that Guiberson would `consider
rehiring' Rhodes is simply a polite way of confirming that the
employee was not fired for misconduct."), and reweighs the evidence
on its own, see id. ("We see no discrepancy . . . .") (emphasis
added). Because this is not the proper function of an appellate
court, I disagree with the majority's analysis of the evidence.11
employer's explanation was untrue or pretextual."); LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 843 (1st Cir. 1993) ("[T]he trier of fact may consider, along
with other evidence, the evidence put forward to show that the employer's
justification for its adverse employment action was a pretext."), cert. denied,
___ U.S. ___, 114 S. Ct. 1398, 128 L. Ed. 2d 72 (1994).
11
The majority buttresses its conclusion by citing "several ADEA cases
decided previously in this circuit, [in which] it is clear that our circuit has
not closed its eyes to situations in which this fundamental lack of evidence
exists." See slip op. at 7 & n.2 (citing Moore v. Eli Lilly & Co., 990 F.2d 812,
817 n.24 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 467, 126 L. Ed. 2d
419 (1993)). What the majority apparently closed its eyes to is that the same
footnote in Moore to which it cites indicates that this circuit has also
frequently found that sufficient evidence in a plaintiff's case was not lacking.
See Moore, 990 F.2d at 817 n.24 (citing successful cases, including Ramirez v.
Allright Parking El Paso, Inc., 970 F.2d 1372, 1377 (5th Cir. 1992); Lloyd v.
Georgia Gulf Corp., 961 F.2d 1190, 1194-95 (5th Cir. 1992); Walther v. Lone Star
Gas Co., 952 F.2d 119, 122-24 (5th Cir. 1992); Wilson v. Monarch Paper Co., 939
F.2d 1138, 1146-47 (5th Cir. 1991); Normand v. Research Inst. of Am., Inc., 927
F.2d 857, 862-64 (5th Cir. 1991); Young v. City of Houston, 906 F.2d 177, 182
(5th Cir. 1990); DeLoach v. Delchamps, Inc., 897 F.2d 815, 818-19 (5th Cir.
1990); Burns v. Texas City Ref., Inc., 890 F.2d 747, 749-51 (5th Cir. 1989);
Hansard v. Pepsi Cola Metro Bottling Co., 865 F.2d 1461, 1465-66 (5th Cir.),
cert. denied, 493 U.S. 842, 110 S. Ct. 129, 107 L. Ed. 2d 89 (1989); Uffelman v.
Lone Star Steel Co., 863 F.2d 404, 407-08 (5th Cir.), cert. denied, 490 U.S.
1098, 109 S. Ct. 2448, 104 L. Ed. 2d 1003 (1989)). Indeed, Moore also indicates
that the failed cases to which the majority refers are "smaller" in number. 990
F.2d at 817 n.24.
29
B
30
The majority also fails to analyze and apply Supreme Court
precedent properly. After stating various portions of the holding
in St. Mary's Honor Center v. Hicks,12 the majority states that the
following language from St. Mary's is "obviously dicta"13:
The factfinder's disbelief of the reasons put forward by
the defendant (particularly if disbelief is accompanied
by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show
intentional discrimination, . . . and the Court of
Appeals was correct when it noted that, upon such
rejection, `no additional proof of discrimination is
required.'"
___ U.S. at ___, 113 S. Ct. at 2749 (citation omitted).14 I
question the majority's conclusion. Explaining that the plaintiff
was entitled to only a permissive inference of discrimination, not
a mandatory one, was a necessary part of the holding. See
Connecticut v. Doehr, 501 U.S. 1, ___, 111 S. Ct. 2105, 2122, 115
L. Ed. 2d 1 (1991) (Rehnquist, C.J., concurring) (defining dicta as
a court's "discuss[ion of] abstract and hypothetical situations not
before it"); see also Black's Law Dictionary (6th ed. 1990)
12
___ U.S. ___, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
13
See slip op. at 10.
14
St. Mary's is consistent with our pre-St. Mary's cases allowing the
jury to infer the fact of intentional discrimination from evidence establishing
the plaintiff's prima facie case and proof that the defendant's proffered reason
for its action was pretextual. E.g., Moore v. Eli Lilly & Co., 990 F.2d 812, 816
(5th Cir.) (noting that "if a plaintiff is able to demonstrate that the
employer's facially legitimate, non-discriminatory reason for its action is
pretext, the inference created by the prima facie case could well be the basis
for a favorable verdict for the plaintiff"), cert. denied, ___ U.S. ___, 114 S.
Ct. 467, 126 L. Ed. 2d 419 (1993); id. at 817 n.24 (collecting cases). To the
extent the jury instruction given below arguably departed from our prior cases
by allowing the jury to infer discrimination solely from proof of pretext,
Guiberson Oil waived any claim of error by not objecting to the jury charge
below. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir.
1992).
31
(defining dicta as "[o]pinions of a judge which do not embody the
resolution or determination of the specific case before the court"
and "[e]xpressions in court's opinion which go beyond the facts
before court"). Elucidating the proper standard to be applied on
remand was neither abstract nor hypothetical. Instead, it assisted
in the resolution of the specific case, and it did not go any
further than the facts before the court. Indeed, the Court of
Appeals on remand declined to accept the prior trial court's
holding of no discrimination and remanded for consideration of the
very language stated above. Hicks v. St. Mary's Honor Center, 2
F.3d 264, 266-67 (8th Cir. 1993) (quoting the above language and
remanding "because neither the parties nor the district court has
had a full and fair opportunity to apply the Supreme Court's newly
clarified analytical scheme").
Since St. Mary's was decided, six other Circuits have adopted
this specific language as an important holding of St. Mary's and
have employed its permissive inference standard. See LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993) (quoting St.
Mary's and stating that "[s]uch evidence [of pretext], coupled with
the elements of the employee's prima facie case (and, of course,
any other evidence), may (or may not) lead the factfinder to infer
that the employer has engaged in intentional discrimination"),
cert. denied, ___ U.S. ___, 114 S. Ct. 1398, 128 L. Ed. 2d 72
(1994); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170 (2d Cir.
1993) ("Proof that the employer has provided a false reason for its
32
action permits the finder of fact to determine that the defendant's
actions were motivated by an improper discriminatory intent, but
does not compel such a finding."); Seman v. Coplay Cement Co., 26
F. 3d 428, 433 (3d Cir. 1994) ("Hicks15 teaches, though, that
rejection of the employer's proffered nondiscriminatory reason will
permit the trier of fact to infer the ultimate fact of intentional
discrimination, so long as there is a finding of discrimination.");
Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir.
1994) ("Hicks clarified that the only effect of the employer's
nondiscriminatory explanation is to convert the inference of
discrimination based upon the plaintiff's prima facie case from a
mandatory one which the jury must draw, to a permissive one the
jury may draw, provided that the jury finds the employer's
explanation `unworthy' of belief."); Anderson v. Baxter Healthcare
Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994) ("The [Hicks] Court
explicitly states that the plaintiff may prevail in a
discrimination case by establishing a prima facie case and by
showing that the employer's proffered nondiscriminatory reasons for
her demotion or discharge are factually false."); Washington v.
Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993) ("[A]s St. Mary's
recognizes, the factfinder in a Title VII case is entitled to infer
discrimination from plaintiff's proof of a prima facie case and
showing of pretext without anything more . . . ."). Indeed, Manzer
states that "[e]very circuit court to address the impact of Hicks
15
Many cases use Hicks, rather than St. Mary's, as the short form.
33
on the submissibility of employment discrimination cases has
reached this same conclusion." 29 F.3d at 1083. Thus, even if the
quoted language in St. Mary's were dicta, circuit courts faced with
this precise issue since St. Mary's have followed this language.
The majority also attempts to discard St. Mary's by citing
Hazen Paper Co. v. Biggins16 as more binding authority for the
resolution of this case. Again, I disagree. Initially, the
majority states that: "St. Mary's is of course a Title VII case and
Hazen Paper is an ADEA case. Since the case before us is an ADEA
case, we believe that Hazen Paper is more relevant and
determinative to this decision than St. Mary's." See slip. op. at
13. The majority's characterization of St. Mary's ignores the fact
that the ADEA was modeled after Title VII, and the same analysis
applies to both statutes.17 Indeed, Hazen Paper itself relies on
several Title VII cases.18 Accordingly, Hazen Paper and St. Mary's
are equally applicable to either a Title VII or an ADEA case.
16
___ U.S. ___, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993).
17
See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n.4 (5th Cir.
1993) ("The Fifth Circuit . . . has adopted the St. Mary's procedural roadmap for
ADEA cases."); see also Fields v. J.C. Penney Co., 968 F.2d 533, 536 n.2 (5th
Cir. 1992) (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973), a Title VII case, as the basis for an ADEA
analysis); Bienkowski v. American Airlines., Inc., 851 F.2d 1503, 1504 (5th Cir.
1988) (adapting McDonnell Douglas to ADEA context).
18
See ___ U.S. at ___, 113 S. Ct. at 1706 (relying on, for example,
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S. Ct.
1478, 75 L. Ed. 2d 403 (1983); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98
S. Ct. 2943, 57 L. Ed. 2d 957 (1978); International Bhd. of Teamsters v. United
States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); and McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
all of which are Title VII cases).
34
Further, although I agree with the majority's recitation of
Hazen Paper's reasoning, I cannot see what relevance it has to this
case. In Hazen Paper, the plaintiff claimed that his employer's
decision to deprive him of his pension by terminating him
constituted a violation of the ADEA. The Supreme Court, as the
majority correctly states, held that age and years of service are
not necessarily correlative, and a finding of intent to thwart the
vesting of the plaintiff's pension was not automatically an intent
to discriminate on the basis of age. See Hazen Paper, ___ U.S. at
___, 113 S. Ct. at 1707 (finding that "age and years of service are
analytically distinct"). In this case, however, Rhodes did not
seek to prove that, because Guiberson wanted to deprive him of a
benefit, Guiberson must have acted discriminatorily. Instead,
Rhodes sought to prove that Guiberson discharged him specifically
because of his age. In this case, therefore, the correlative jump
from some other factor to age discrimination that Hazen Paper
disallowed is not necessary. Consequently, the holding of Hazen
Paper does not mandate the majority's conclusion.
Moreover, Hazen Paper actually supports the holding in St.
Mary's that the majority ignores. In Hazen Paper, while the
Supreme Court held that no automatic connection between years of
service and age discrimination existed, it also held that years of
service could nonetheless support an inference of age
discrimination. "We do not preclude the possibility that an
employer who targets employees with a particular pension status on
35
the assumption that these employees are likely to be older thereby
engages in age discrimination." Id.; see also id. at ___, 113 S.
Ct. at 1708 ("[I]ndirect evidence of this kind may well suffice to
support liability if the plaintiff also shows [pretext].").19 Thus,
Hazen Paper is consistent with St. Mary's in that, while a
conclusion of discrimination is not required, it is permitted.
C
Lastly, I question the majority's analysis of post-St. Mary's
cases. First, as discussed earlier in this dissent, post-St.
Mary's cases directly dealing with the question at issue in this
case follow a different interpretation of St. Mary's than that
stated by the majority. Also, those cases that the majority cites
in support of its conclusion do not, when viewed in their entirety,
lend credence to the majority's conclusions.
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993),20
and Durham v. Xerox Corp., 18 F.3d 836 (10th Cir. 1994), cert.
denied, 62 U.S.L.W. 3863 (U.S. Oct. 3, 1994),21 never reach the
question at issue in this case, that is, whether a plaintiff's
prima facie case plus proof of pretext alone can suffice to support
a factfinder's determination of age discrimination. In both of
these cases, the plaintiff failed to prove pretext. Bodenheimer,
19
The Court eventually remanded so that the Court of Appeals could
determine if the plaintiff had proved this inference. Id. at 1708.
20
See slip op. at 11.
21
See slip op. at 12.
36
5 F.3d at 958 (requiring plaintiff to "produce sufficient evidence
to establish that [defendant's] reasons were pretexts for age
discrimination" and concluding that "he did not"); Durham, 18 F.3d
at 840 ("Without proof of pretext or direct evidence of
discriminatory intent, Durham cannot meet her ultimate burden of
proving intentional discrimination."). Thus, neither case reaches
the question for which the majority seeks its support. Moreover,
Durham, in finding lack of pretext, uses the St. Mary's language to
explain why failure to prove pretext would not permit a factfinder
to find intentional discrimination. 18 F.3d at 840.22
Mitchell v. Data Gen. Corp., 12 F.3d 1310 (4th Cir. 1993),
another case cited by the majority,23 also fails to address the
question at issue in this case, because the plaintiff in Mitchell
failed even to prove a prima facie case. Id. at 1317.
Consequently, like the previous two cases, Mitchell does not lend
any additional weight to the majority's reasoning.
Lastly, I question the majority's use of Anderson v. Baxter
Healthcare Corp., 13 F.2d 1120 (7th Cir. 1994), in support of its
contention that the St. Mary's language need not be followed,24 when
Anderson expressly adopts that language. After acknowledging that
22
The majority correctly states that Durham cites the St. Mary's
language, but it neglects to explain the reason why the Tenth Circuit uses that
language. See slip op. at 12.
23
See slip op. at 11.
24
See slip op. at 12-13.
37
Hicks rejected an entitlement to judgment as a matter of law for
proof of a prima facie case and pretext, Anderson continues:
The next logical question is whether the plaintiff may
prevail, not automatically as a matter of law, but
through submission of her case to the ultimate
factfinder, under such circumstances [that is, prima
facie case plus pretext].
Hicks answers this question in the affirmative. The
Court explicitly states that the plaintiff may prevail in
a discrimination case by establishing a prima facie case
and by showing that the employer's proffered
nondiscriminatory reasons for her demotion or discharge
are factually false.
13 F.3d at 1123-24.25 Moreover, Anderson's holding that "even if
Anderson had proven that the employer's stated reason, performance,
was a pretext, and that plaintiff had been discharged to reduce
salary costs, such facts would not establish age discrimination,"
see slip. op. at 12, had nothing to do with the St. Mary's
standard. Instead, the holding related to the plaintiff's failure
to provide proof supporting an inference between salary cost
reduction and age discrimination. Id. at 1125-26. Thus, the
support upon which the majority in this case relies actually
undercuts its reasoning and the foundation of its decision.
IV
For the reasons stated, I respectfully dissent.
25
The Seventh Circuit did suggest that although a prima facie case plus
pretext would suffice to support a finding of intentional discrimination, "the
plaintiff might be well advised to present additional evidence of discrimination,
because the factfinder is not required to find in her favor simply because she
establishes a prima facie case and shows that the employer's proffered reasons
are false." Anderson, 13 F.3d at 1124. The majority's insistence that Rhodes'
case is automatically insufficient without this additional evidence is the
fundamental flaw in its rationale that compels me to dissent.
38