*

Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for

the Ninth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8772.

Ann C. JAMESON, Plaintiff-Appellant,

v.

The ARROW COMPANY, Defendant-Appellee.

Feb. 28, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:92-CV-223-HLM), Harold L. Murphy,

Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*

, Senior

Circuit Judge.

BIRCH, Circuit Judge:

This appeal presents the question of whether an employer's

failure to rehire or to transfer an employee whose position is

eliminated as part of a reduction in force can give rise to an

inference of age and race discrimination. The district court

granted summary judgment in favor of the employer on all claims.

For the reasons that follow, we determine that material questions

of fact remain for resolution with respect to the former employee's

age and race discrimination claims. We AFFIRM in part, REVERSE in

part, and REMAND for further proceedings consistent with this

opinion.

I. BACKGROUND

Plaintiff-appellant, Ann C. Jameson, a white female over the

age of fifty, was employed by Arrow at several of its plant

locations in Georgia from May 19, 1969, until her termination on
January 31, 1991. In July of 1987, Jameson was assigned to the

"Quick Response Project," a team task force designed to improve

efficiency in various company facilities. Bidermann Industries

Corporation ("Bidermann") purchased Arrow in 1990. Shortly

thereafter, at Bidermann's direction, Arrow began to implement a

significant reduction in force. As part of this overall downsizing

effort, the "Quick Response Project" was eliminated, and Jameson

was discharged. Arrow subsequently hired Marian Kelley, a

twenty-three-year-old black woman, as human resources trainee, an

entry level position for which Jameson was fully qualified. At the

time of her termination, Jameson was fifty-one years old.

Proceeding pro se, Jameson filed a timely complaint with the

Equal Employment Opportunity Commission ("EEOC"). In amended

complaints, Jameson alleged that her termination coupled with

Arrow's failure to transfer or rehire her, and its decision to hire

Kelley, constituted age and race discrimination in violation of the

Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq., and 42 U.S.C. § 1981. Jameson later sought to amend

her second amended complaint, filed by retained counsel, to add a

claim stating that Arrow refused either to consider or to rehire

Jameson for positions available after her discharge in retaliation

for the filing of a complaint with the EEOC. The district court

concluded that Jameson had failed to establish a prima facie case

of age discrimination because she had not presented evidence by

which a factfinder could infer that Arrow's failure to transfer or

rehire her was motivated by discriminatory animus based upon her
age. The court further resolved that, although Jameson had met her

burden in setting forth a prima facie case of race discrimination,

she had not succeeded in showing that Arrow's proffer of a

legitimate reason for the failure to rehire her was pretextual.

Finally, the court denied Jameson's motion to amend her complaint,

and found that counsel's ten-month delay in supplementing the

complaint with a new cause of action was unreasonable and

prejudicial to the Arrow.

II. DISCUSSION

 We review de novo the district court's order granting summary

judgment. See Earley v. Champion Intern. Corp., 907 F.2d 1077,

1080 (11th Cir.1990). Summary judgment is appropriate where there

is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where

the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no genuine issue for

trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation

omitted). On a motion for summary judgment, we must review the

record, and all its inferences, in the light most favorable to the

nonmoving party. United States v. Diebold, Inc., 369 U.S. 654,

655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

 In an employment discrimination case, the plaintiff must

produce sufficient evidence to support an inference that the

defendant employer based its employment decision on an illegal

criterion. See Alphin v. Sears Roebuck & Co., 940 F.2d 1497, 1500

(11th Cir.1991) (citing Halsell v. Kimberly-Clark Corp., 683 F.2d

285, 290 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct.
 1

See also Cronin v. Aetna Life In. Co., 46 F.3d 196, 203-04

(2d Cir.1995) ("[T]he function of the court on a summary judgment

motion is to determine whether the proffered admissible evidence

shows circumstances that would be sufficient to permit a rational

finder of fact to infer a discriminatory motive ... It is not the

province of the summary judgment court itself to decide what

inferences should be drawn.") 

1194, 75 L.Ed.2d 438 (1983)). This court generally has eschewed an

overly strict formulation of the elements of a prima facie case,

particularly in age discrimination cases. See id. At the summary

judgment stage, our inquiry is whether an ordinary person could

reasonably infer discrimination if the facts presented remained

unrebutted. Id. (quoting Carter v. City of Miami, 870 F.2d 578,

583 (11th Cir.1989)).1

A. ADEA Claim

 This circuit has adopted a variation of the test articulated

by the Supreme Court for Title VII claims in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

for cases arising under the ADEA. See Mitchell v. Worldwide

Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir.1992). In order

to make out a prima facie case for an ADEA violation, the plaintiff

must show that she (1) was a member of the protected group of

persons between the ages of forty and seventy, (2) was subject to

adverse employment action, (3) was replaced with a person outside

the protected group, and (4) was qualified to do the job. See

Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th

Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107

L.Ed.2d 1012 (1990). These criteria are altered slightly in both

a reduction-in-force ("RIF") case and where a position is

eliminated in its entirety; in these instances, the plaintiff
establishes a prima facie case by demonstrating (1) that she was in

a protected age group and was adversely affected by an employment

decision, (2) that she was qualified for her current position or to

assume another position at the time of discharge, and (3) evidence

by which a fact finder could reasonably conclude that the employer

intended to discriminate on the basis of age in reaching that

decision. See Mitchell, 967 F.2d at 567-68; Earley, 907 F.2d at

1082; Verbraeken, 881 F.2d at 1045-46.

Here, Jameson does not dispute that the initial termination

and consequent elimination of her position resulted from a

legitimate RIF, but argues that Arrow's failure to transfer her or

to rehire her for numerous positions available at the time of her

termination constitutes evidence of discriminatory intent. Jameson

emphasizes that she specifically expressed to a supervisor her

interest in the position of personnel administrator—later filled by

a younger woman—but was informed that Arrow did not plan to fill

this position. She further suggests that the fact that Arrow

transferred one younger employee from the Quick Response Project,

and hired several younger individuals for other positions for which

she was qualified, is evidence that the impermissible factor

motivating Arrow's decisions was the desire to replace older female

workers with younger employees.

In Earley, we established the basic proposition that, when an

employer reduces its work force for economic reasons, it incurs no

duty to transfer laid-off employees to other positions within the

company. 907 F.2d at 1083. Significantly, although the plaintiff

in Earley argued that he was neither transferred nor rehired into
positions available months before and after his discharge, he was

unable to show that he was qualified for any position within the

defendant-company available at the time of his discharge. Noting

that the adoption of the plaintiff's argument would effectively

"prohibit employers from planning and implementing RIFs if the

reductions affected employees in the protected age group," Earley,

907 F.2d at 1083, n. 4, we concluded that by failing to show that

he was qualified for a job available at the time of his

termination, the plaintiff had failed to establish the second prong

of his prima facie case. Id.

Mitchell presented a somewhat different circumstance. 967

F.2d 565. In Mitchell, as in Earley, the district court had found

that the plaintiff failed to meet the second test enunciated in

Verbraeken—that is, that he was qualified for a position available

at the time of discharge—and granted summary judgment in favor of

the employer. Id. at 568. We reversed and expressly recognized

that evidence adduced by the plaintiff indicating that there may

have been job openings for which he was qualified at the time of

his termination, but for which he was not hired, gave rise to a

material, disputed issue of fact, and that summary judgment

therefore was inappropriate. Id. at 568. Although the court in

Mitchell declined to explicitly elaborate on the third element of

the plaintiff's prima facie case—whether the plaintiff had produced

evidence that would permit a fact finder to infer intentional

discrimination by the employer—the reasoning and ultimate holdings

of both Mitchell and Earley suggest that where a job for which the

plaintiff is qualified, and for which the plaintiff applies, is
available at the time of termination, and the employer offers the

job to an individual outside the protected age group, an inference

of intentional discrimination is permissible.

 It is critical to note that this statement in no way

represents a departure from this circuit's decisional law, but

rather is a direct application of Mitchell and Earley to the facts

of this case. It is undisputed that job openings for which Jameson

was qualified existed at the time of her termination, and that

Arrow hired younger employees to fill these vacancies. We hold

that, although Arrow incurred no absolute duty to hire Jameson into

any of these positions, its failure to do so, coupled with its

decision to employ younger workers during its RIF, could give rise

to a rebuttable inference that it intended to discriminate against

Jameson on the basis of age. We emphasize that the ADEA does not

mandate that employers establish an interdepartmental transfer

program during the course of an RIF, see Taylor v. Canteen Corp.,

69 F.3d 773 (7th Cir.1995), require that "younger employees be

fired so that employees in the protected age group can be hired,"

see Earley, 907 F.2d at 1083, or impose any added burden on

employers to transfer or rehire laid-off workers in the protected

age group as a matter of course. Rather, if the second element of

the prima facie test under the ADEA, as articulated by this court

in Verbraeken, Earley, and Mitchell, is to have any substantive

meaning, it is that a discharged employee who applies for a job for

which she is qualified and which is available at the time of her

termination must be considered for that job along with all other

candidates, and cannot be denied the position based upon her age.
 2

See also Oxman v. WLS-TV, 12 F.3d 652, 661 (7th Cir.1993)

("Although [defendant's] failure [to offer plaintiff a position

before or after its decision to eliminate his job] certainly

permits an inference of discriminatory intent, such an inference

is not mandated."); Cronin v. Aetna Life Ins. Co., 46 F.3d at

204-206 (where plaintiff produced evidence that employer

recommended him for "consideration primarily for positions for

which he was not well qualified" and "fail[ed] to surface his

name for any of the positions for which he was best qualified,"

plaintiff "satisfied his de minimus burden to adduce evidence

from which a rational inference of age discrimination could be

drawn.") 

 3

Jameson alleges the violation of the Civil Rights Act of

1964, 42 U.S.C. § 2000(e)-2(m), providing that "an unlawful

employment practice is established when the complaining party

demonstrates that race, color, religion, sex or national origin

was a motivating factor for any employment practice ..."; and 42

U.S.C. § 1981, providing for equal rights for all persons within

An employer's decision to transfer or to hire a younger employee

for that available position is sufficient evidence to support an

inference of discrimination for the limited purpose of establishing

the plaintiff's prima facie case; the employer then may rebut this

inference by providing legitimate, non-discriminatory reasons for

its decision which the plaintiff, in order to avoid summary

judgment, must show to be pretextual. Our decision therefore is

narrow in scope and does not purport to address the merits of

Jameson's allegations. We do conclude, however, that the district

court erred in its finding that Jameson failed to make out a prima

facie case of age discrimination, and thus improperly granted

summary judgment on this basis.2

B. Race Discrimination Claim

Jameson also contends that Arrow discriminated against her on

the basis of race by expressly directing that a black female,

Marian Kelley, be hired to assume an entry level job for which

Jameson was qualified at the time of her discharge.3 The district
the United States to make and to enforce contracts. For purposes

of our analysis of Jameson's allegation of race discrimination,

we apply the same modified McDonnell-Douglas burden-shifting

analysis adjusted to the specificities of an RIF case, as

discussed above with respect to Jameson's ADEA claim. 

 4Arrow does not dispute on appeal the district court's

finding that Jameson met the necessary elements of a prima facie

case of race discrimination. 

court found that, although Jameson established a prima facie case

of race discrimination4, she failed to show that Arrow's proffer of

legitimate, nondiscriminatory reasons for not hiring her for this

position were pretextual. Specifically, the court determined that

the following factors introduced by Arrow to justify its decision

not to hire Jameson for this particular position adequately

rebutted the inference of discrimination: (1) Arrow had no

consistent policy of transferring employees who had been

terminated; (2) Arrow had a policy of not transferring workers

into positions that effectively would be demotions; and (3) the

position for which Kelley was hired was slated to be in Atlanta,

while Jameson lived and worked in Cedartown.

The record in this case indicates that the explanations relied

on by the district court were based upon underlying issues of

material fact that remain in dispute, and that the court not only

improperly weighed the evidence submitted by each party, but also

credited one version of events in granting summary judgment. For

instance, Sandra Giles, a former employee relations manager at

Arrow, testified that Arrow had "mov[ed] people around" during the

RIF, and had transferred at least one plant manager to a personnel

position. R6-61-83. By the same token, although Arrow posited

that the entry level position for which Marian Kelley was hired
would have been a demotion, Houston Payne, a director of Human

Resources at Arrow, stated that this position was created to "grow

and develop into a position of increased responsibility." R6-61-

73. Although a vice president of manufacturing at Arrow, Amos

Turner, testified that he had notified Kelley that her position

would be moved from Cedartown to the Atlanta area, Kelley stated in

an affidavit that she was hired to work in Cedartown and was never

informed that she would be maintaining an office in or near

Atlanta. Finally, the parties consistently have disputed whether

Arrow was aware of Jameson's interest in the various jobs for which

she might have been eligible. Arrow asserts that Jameson never

formally applied either for Kelley's job or any other opening;

Jameson, on the other hand, insists that although she expressed to

her immediate supervisor, James Jones, her interest in the

personnel position later filled by Kelley, along with her general

desire to find alternate employment at Arrow, supervisors Payne and

Turner deliberately withheld from her information regarding

possible opportunities. Both Sandra Giles and Jones testified that

each had made inquiries of Turner and Payne on Jameson's behalf

regarding the possibility of placing Jameson in a different job

following her termination and were advised that no appropriate

openings existed. Crediting the affidavits and deposition

testimony submitted by Jameson for purposes of this motion, and

drawing all permissible inferences in her favor, the trier of fact

could reasonably find that (1) Arrow's contention that it did not

transfer employees during the RIF was belied by the transfer of

some younger workers during the period in which Jameson was
 5

This last inference also is significant with respect to

Jameson's age discrimination claim. 

terminated; (2) Arrow partly justified its decision to hire a

young, black woman for a human resources position for which Jameson

was qualified by claiming that this job would have been a demotion

for Jameson, yet Arrow anticipated that the position would evolve

into one of increased responsibility over time; (3) Arrow withheld

possible job opportunities for which Jameson could have applied,

including the position held by Kelley, in an effort to prevent

Jameson from being considered for a position slated for an AfricanAmerican applicant.5

 In sum, the evidence presented by Jameson was more than

merely speculative, and thus satisfied her burden to produce

sufficient evidence from which a rational inference of age and race

discrimination could be drawn. Although from the evidence in the

record thus far, a trier of fact could infer that there was no

intent to discriminate against Jameson, it could infer instead that

Arrow deliberately refused to transfer or to rehire Jameson for

jobs for which she was qualified at the time of her discharge

because of her age and race. It remains the province of the finder

of fact to decide which inference should be drawn. See Cronin v.

Aetna Life Ins. Co., 46 F.3d at 206. The district court expanded

its review of the record evidence beyond that which is permitted at

the summary judgment stage. Accordingly, summary judgment was

inappropriate.

C. Motion to Amend

Jameson asserts that the district court abused its discretion
in denying her leave to amend her second amended complaint to add

a claim for failure to rehire her based on retaliation for filing

a complaint with the EEOC. The court found that Jameson sought to

amend the complaint ten months after she retained counsel,

discovery was closed, the complaint had been amended twice, and

Arrow had filed two motions for summary judgment.

 Rule 15(a) of the Federal Rules of Civil Procedure provides

that "leave [to amend a party's pleading] shall be freely given

when justice so requires." The decision whether to grant leave to

amend is within the sound discretion of the trial court. Foman v.

Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

The Supreme Court has defined the parameters of Rule 15(a):

In the absence of any apparent or declared reason—such as

undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, futility of amendment,

etc.—the leave sought should, as the rules require, be "freely

given."

Id. Jameson argues that the substantial delay in seeking to amend

the complaint to include a retaliation claim resulted from the

district court's refusal to allow discovery to include information

relevant to this claim. She further urges that the district court

based this refusal on its erroneous determination that the amended

complaint did not adequately state a claim for retaliatory failure

to rehire.

 Jameson asks us to apply an extraordinarily flexible pleading

requirement in construing the allegations set forth in the

complaint. Notwithstanding Jameson's suggestion that the district

court should have interpreted the complaint liberally to include a
retaliation claim at the outset, the omission of any reference to

the term "retaliation" in this context is significant, and renders

the complaint more than minimally deficient in stating such a

claim. Moreover, Jameson claims that her motion to compel filed on

November 22, 1993, essentially stated the retaliation claim; yet,

she did not move to amend the complaint to include this claim until

May 6, 1994, one month after Arrow had filed its motion for summary

judgment. Though we are mindful of the fact that Jameson was

unable to obtain important information needed to pursue this claim

until Houston Payne's deposition in March of 1994, it appears that

the basic facts giving rise to the retaliation theory were

available when the second amended complaint was filed. The

considerable delay in seeking to amend the complaint for the third

time, coupled with the request to amend subsequent to the filing of

the defendant's motion for summary judgment, appear to have been

unwarranted. The district court did not abuse its discretion in

denying this request.

III. CONCLUSION

In this appeal, Jameson argues that Arrow discriminated

against her on the basis of age and race when it failed to transfer

or to rehire her following a reduction in force. The district

court erred in concluding at the summary judgment stage that

Jameson failed to set forth evidence by which a trier of fact

reasonably could conclude that Arrow intended to discriminate on

the basis of age. The court further erred in crediting Arrow's

justifications presented to rebut the inference of race

discrimination when these justifications were based upon disputed
issues of material fact. The court, however, did not abuse its

discretion in denying Jameson's request to amend the complaint to

include a claim of retaliatory failure to rehire. We therefore

AFFIRM in part, REVERSE in part, and REMAND for further proceedings

consistent with this opinion.