* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-11130

WILLIAM B. PILCHER,

Plaintiff-Appellant,

versus

CONTINENTAL ELECTRONICS CORP.,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(93-CV-1743)

July 8, 1997

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *1 29 U.S.C. § 621 et seq.

2

In this Age Discrimination in Employment Act 1 (ADEA) case,

Plaintiff-Appellant William B. Pilcher (Pilcher) appeals the

district court’s grant of Defendant-Appellee Continental

Electronics Corporation’s (CEC) motion for summary judgment,

concluding that Pilcher had failed to establish a claim under the

ADEA. In our de novo review we find that issues of material fact

exist as to (1) whether Pilcher bore his burden of presenting a

prima facie case of age discrimination, and (2) if so, whether

C EC’s proffered reason for his discharge

—— one of a number o f

employment actions taken as part of a RIF —— was merely a pretext

for a discriminator y replacement situation. Accordingly, we

reverse.

I

FACTS AND PROCEEDINGS

Pilcher graduated in 1960 from Texas Technological University

with a B.S. in electrical engineering. After receiving his degree,

Pilcher went to work for CEC as a Staff Engineer and Valve Engineer

Coordinator. CEC manufactures radio transmitters and other

products and performs contract work related to the United States

government and the defense industry. In 1969, Pilcher received an

M.B.A. from North Texas State University while working for CEC.

In 1970 Pilcher left CEC and thereafter worked in a number of

different jobs, most notably as Contracts Manager for UTL3

Corporation (UTL) from 1977 through 1987. UTL’s business was 85

percent governmen t contracts and 15 percent domestic and

international commercial contracts. Pilcher negotiated contracts,

supervised contract administration, and assisted in contract

proposals.

In 1987 Pilcher returned to CEC to become Manager of Contract

Administration. Over time he assumed additional responsibilities,

and in 1991 he was promoted to Manager of Contracts and Proposals,

in CEC’s Finance Department. Pilcher’s yearly performance reviews

encouraged him to identify and train a successor, which he assumed

would clear the way for him to be promoted.

Meanwhi le, in 1990, Lonnie Roberts had joined CEC as VicePresident of Finance. In September 1991, CEC hired John Newell,

a ge 42, for the position of Government Contracts Administrator.

Newell had graduated cum laude from the College of St. Thomas and

had received a law degree from the University of Iowa College of

Law.

At about the same time that Newell was hired, Pilcher was

promoted to Manager of Contracts and Proposals, which entailed

increased responsibility, including serving as Newell’s supervisor.

In November 1991, ju st two months after Newell’s arrival, CEC

informally changed his title to Department Head, Contracts

Administration; and in January 1992, Newell was formally promoted

to that position.2 Jan Krummrich, age 54, was Manager of Government Products in

Pilcher’s department and reported to Roberts. Maurine Heaton, age

60, held the position of Accounting/Financial Specialist.

However, she did not report to Lonnie Roberts, but instead was

supervised by Robin Roberts.

4 On January 17, 1992, CEC terminated Pilcher, age 61,

purportedly as part of a RIF, which CEC asserts was necessitated by

a substantial reduction in its government contracts business. CEC

explains that, based on Lonnie Roberts’ suggestion, it had decided

to reduce its managerial s taff and to implement a concomitant

consolidation of managerial responsibilities into the duties of the

managers who remained. In fact, Pilcher was one of 37 CEC

employees who were fired on the same day. Of those 37 employees,

seven whose average age was fifty years were from Pilcher’s

department; however, Newell was never considered for termination.

Two other older employees, both women, were terminated during the

alleged RIF. Like Pilcher, those women are alleged to have been

required to train their younger successors before they were fired. 2

Pilcher insists that when he was laid off he was informed by

both Newell and Lonnie Roberts that Newell would be taking

Pilcher’s place. Indeed, Newell did assume Pilcher’s government

contracts responsibilities and began supervising the remaining

employees whom Pilcher had been supervising. Newell also assumed

Pilcher’s other responsibilities

— Spares as well a s Pricing and

Proposals. S ometime later, other employees assumed some of

Pilcher’s previous duties, as his position was ultimately3 Walker v. Sears, Roebuck & Co. , 853 F.2d 355, 358 (5th Cir.

1988).

4 F ED .R.C IV .P. 56(c).

5 Hayden v. First Nat’l Bank

, 595 F.2d 994 , 997 (5th Cir.

1979).

6 Thornbrough v. Columbus & Greenville R.R. Co.

, 760 F.2d 633,

640 (5th Cir. 1985).

5 reorganized.

Pilcher filed suit against CEC in August 19 93. CEC filed a

Motion for Summary Judgment in January 1996. In August 1996, the

district court granted CEC’s motion, concluding that there was no

direct evidence of intentional age discrimination and that Pilcher

had failed to establish a prima facie case through indirect

evidence.

II

ANALYSIS

A. S TANDARD O F R EVIEW

On appeal from summary judgment, we review the record de novo

"under the same s tandards which guided the district court." 3

Summary judgment is appropriate when no issue of material fact has

been shown and the moving party is entitled to judgment as a matter

of law. 4 In determining whether summary judgment was proper, all

facts are viewed in the light most favorable to the nonmovant.

The granting of summary judgment is especially questionable in

employment discrimination cases, 5 as these cases involve "nebulous

questions of motivation and intent." 6 Thus, when any facts are in7 Id. at 641.

8 Id. at 641 n.8.

9 29 U.S.C. § 623(a)(1).

10 Davis v. Chevron U.S.A., Inc. , 14 F.3d 1082, 1085 (5th Cir.

1994) (citing Texas Dep’t of Community Affairs v. Burdine

, 450 U.S.

248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

11 McDonnell Doug las Corp. v. Green , 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed. 668 (1973).

1 2 Arm endariz v. Pinkerton Tobacco Co. , 58 F.3d 144, 149 (5th

Cir. 1995).

6 dispute, summary judgment is generally inappropriate. 7 A plaintiff

should withstand summary judgment when he has create d a genuine

issue of material fact, even if he has failed to establish all the

elements of his case by a preponderance of the evidence. 8

B. A PPLICABLE L AW

Under the ADEA, it is unlawful for an employer to discharge an

employee based on age. 9 A plaintiff must prove intentional

discrimination to establish a violation. “Because direct evidence

of employment discrimination is rare, courts have devised indirect

or inferential methods of proving such discrimination,” 10 following

the three-step McDonnell Douglas burden-shifting analysis. 11

i. Did Pilcher establish a prima facie case ?

In s tep 1

, a plaintiff must present a prima facie case; if

successful in so doing, he establishes a rebuttable presumption of

discrimination. 12 A prima facie showing of age discrimination

requires a plaintiff to present proof that he was: (1) discharged;13 Id. at 149, (citing Bodenheimer v. PPG Indus., Inc.

, 5 F.3d

955, 957 (5th Cir. 1993)).

1 4 Meinecke v. H & R Block of Houston

, 66 F.3d 77, 83 (5th Cir.

1995).

1 5 Armendariz

, 58 F.3d at 150, (citing Amburgey v . Corhart

Refractories Corp. , 936 F.2d 805, 812 (5th Cir. 1991)).

16 EEOC v. Manville Sales Corp. , 27 F.3d 1089, 1096;

Thornbrough , 760 F.2d at 644.

17 Thornbrough , 760 F.2d at 644.

7 (2) qualified for the position; (3) within the protected class; and

(4) either (i) replaced by someone outside the prote cted class,

(ii) replaced by someone younger , or (iii) otherwise discharged

because of hi s age. 1 3 Generally, when an employee has been

replaced, prongs (i) and (ii) of the fourth element apply; and when

there has been a RIF, prong (iii) applies. 14 To establish a prima

facie case in a RIF situation, the plaintiff is required to present

evidence showing that the employer did not treat age as a neutral

factor in its decision-making process. 15 What is suspicious is not

the firing of a qualified, older employee, but the firing of such

an employee while retaining younger employees. 16 When this occurs,

the employer is required to articulate a nondiscriminatory reason

for that decision. 17

Pilcher con tends that he was replaced by Newell and insists

that Newell assumed Pilcher’s responsibilities. We have previously

held that a plaintiff is entitled to a jury trial when he presents

evidence that some of his duties were assumed by a replacement18 See Young v. City of Houston, Texas, 906 F.2d 177, 182 (5th

Cir. 1990).

8 employee. 18 We today conclude that the summary judgment evidence

in the instant case presents a genuine issue of material fact as to

whether Pilcher was replaced or merely terminated as part of a RIF.

According to Pilcher, during the six months preceding his

termination, Newell held himself out to a representative of a third

party contractor as Manager of Contracts. In Pilcher’s performance

r eview, CEC had encouraged a more aggressive search for his own

successor. Newell claims that following Pilcher’s layoff, he

(Newell) “took over.” Other employees confirm that Newell was “in

[Pilcher’s] office” and “assumed” Pilcher’s duties. The record

indicates that Newell assumed managerial responsibility for

existing projects, as well as for proposals and spares.

CEC’s organizational charts show that Pilcher’s former

position was not reorganized until approximately six months after

his layoff. And, when it was reorganized, Newell ceased to manage

spares; CEC had transferred that responsibility to another

department. By 1994, Newell was no longer responsible for pricing

or proposals. Newell’s sole remaining responsibility was managing

contracts, which had represented approximately 60 percent of

Pilcher’s workload.

We have not seen any summary judgment evidence to suggest that

Newell’s position following Pilcher’ s layoff was anything other

than a one-on-one replacement. There is no evidence that several19 66 F.3d at 84.

9

jobs were conflated into one; instead, Newell simply assumed all of

Pilcher’s responsibilities, no more and no less. As Newell

acquired his original position, Government Contracts Administrator,

only months p receding Pilcher’s layoff, CEC appears to have

replaced the older Pilcher with the younger Newell. His

responsibilities appear to have been identical to Pilcher’s for the

first six months following Pilcher’s firing. Although the position

was eventually restructured, its essence —— managing contracts ——

remained the same.

CEC insists that Pilcher’s firing was entirely motivated by

its plans under the RIF. RIF cases —— particularly those involving

grants of summary judgment

—— generally involve facts that clearly

dictate such a finding, unlike the murky, ambiguous facts of the

instant case. For example, in M einecke v. H&R Block of Houston

, we

found a RIF to be an adequate explanation when an employer had

eliminated an employee’s position, closed the office in which the

discharged employee had worked, and distr ibuted the employee’s

duties among other employees as part of a reorg anization. 1 9 In

Armendariz v. Pinkerton Tobacco Co. , we found a RIF to be a

creditable reason for termination when an employer discharged the

employee, assigned a small portion of his work to another employee

without granting a pay increase to the assignee of that work, and

assigned the bulk of the first employee’s work to an independent20 58 F.3d at 149-50.

21 Id. at 150.

22 82 F.3d 651, 655 (5th Cir. 1996).

23 896 F.2d 1457 (6th Cir. 1990).

24 Id. at 1465.

10 broker. 20 We found that the position in question truly had been

eliminated. 21 Finally, in B rown v. CSC Logic, Inc.

, we found that

when a younger employee had been assigned some of the duties of a

terminated e mployee sixteen months prior to termination and the

remainder of the duties had been assumed by an older employee, this

employee’s position was legitimately eliminated in a RIF. 22

CEC relies heavily on the Sixth Circuit’s opinion in Barnes v.

GenCorp., Inc

. 23 to support its argument that Pilcher was not

replaced. To the contrary, though, B arnes supports our conclusion

that a genuine issue of material fact exists regarding whether

Pilcher was replaced. According to B arnes

, a RIF occurs when

business considerations cause an employer to

eliminate one or more positions within the

company. An employee is not eliminated as

part of a work force reduction when he or she

is replaced after his or her discharge.

However, a person is not replaced when another

employee is assigned to perform the

plaintiff’s duties in addition to other

duties, or when the work is redistributed

a mong other existing employees alrea d y

performing related work. A person is replaced

only when another employee is hired or

reassigned to perform the plaintiff’s duties. 24

Technically, Newell was an existing employee who assumed25 Armendariz , 58 F.3d at 149.

11 related duties upon Pilcher’s termination. It is incongruous,

however, to allow an employer to evade the finding of “replacement”

b y simply: (1) determining the need for an assistant manag er;

(2) filling that position with a younger employee; (3) determining

a need for a RIF; (4) terminating the older manager, without even

considering the younger employee for layoff; and, (5) consolidating

the two positions so that the younger employee assumes essentially

all of the duties for which the older employee had been

responsible. Even though it is not plain from the record that this

series of events o ccurred, there is sufficient summary judgment

evidence in the record on appeal to establish a prima facie case

and create a jury question.

ii. D id CEC articulate a legitimate, nondiscriminatory reason for

its decision ?

We ar e constrained in this case to proceed to s tep 2 of the

McDonnell Douglas burden-shifting analysis. Because Pilcher made

a prima facie showing of age discrimination, it was incumbent on

CEC to establish a legitimate, nondiscriminatory reason f or its

decision to terminate hi m. 25 Toward this end, CEC maintains that

the RIF was necessary due to a decrease in overall sales and a

decrease in government contracts. According to CEC, age was not a

factor it considered in the decision to terminate Pilcher; rather,

that decision was based on Lonnie Robe rts’ recommendation to

eliminate superfluous managerial and supervisory personnel while2 6 Id. (citing St. Mary’s Honor Ctr. v. Hicks

, 509 U.S. 502, 113

S.Ct. 2742, 125 L.Ed.2d 407 (1993).

2 7 Waggoner v. City of Garland, Texas

, 987 F.2d 1160, 1166 (5th

Cir. 1993).

2 8 Texas Dept. of Community Affairs v. Burdine

, 101 S.Ct. 1089,

1095 (1981); Bienkowski v. American Airlines, Inc.

, 851 F.2d 1503,

1506 (5th Cir. 1988); Hall v. Gillman, Inc.

, 81 F.3d 35, 37 (1996).

12 expanding the responsibilities of the m anagers who remained.

Facially, this is a legitimate, nondiscri minatory reason, and is

sufficient to shift responsibili ty back to Pilcher to establish

pretext.

iii. Was CEC’s reason a pretext ?

The law is well settled that when an employee establishes a

prima facie case and the employer responds with a benign reason, we

proceed to step 3 of the McDonnell Douglas minuet: Once the

employer has met the burden of articulating a legitimate,

nondiscriminatory reason, the presumption of discrimination fades

and the plaintiff must prove by a preponderance of the evidence

that the empl oyer’s articulated reason is a pretext for unlawful

discrimination. 26 To establish pretext, a plaintiff cannot merely

rely on his subjective belief that discrimination has occurred. 27

Rather, he must demonstrate discriminatory intent "either directly

by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence." 28 The critical test

is whether age "actually played a role in" and "had a determinative29 A rmendariz

, 58 F.2d at 149, (citing Hazen Paper Co. v.

Biggins, 113 S.Ct 1701, 1706 (1993)).

30 Thornbrough , 760 F.2d at 646.

31 Hall

, 81 F.3d at 37 (citing R hodes v. Guiberson Oil Tools

, 75 F.3d 989, 993 (5th Cir. 1996) (en banc)).

13 influence on" the employer’s decision-making process. 29 To avoid

summary judgment, however, a plaintiff is not required to prove

pretext; he need only raise a genuine issue of fact regarding

pretext. 30 As we stated recently, “a plaintiff can avoid summary

judgment if the evidence taken as a whole, (1) creates a fact issue

as to whether each of the employer’s stated reasons were what

actually motivated the employer, and (2) creates a reasonable

inference that age was a determinative factor in the actions of

which the plaintiff complains.” 31

Pilcher asserts that CEC’s proffered reason for his layoff

——

a RIF brought on by a dramatic decrease in government contracts

——

is a pretext. He claims to have had enough work to keep him busy

for the next few years. He also points to the fact that the

younger New ell was hired specifically to work in government

contracts just three months prior to the RIF, yet was never

considered to be a candidate for layoff. CEC counters with

evidence that government contracts constituted a decreasing portion

of its total revenue, with such business reaching its nadir in

1992, the year Pilcher was laid off. CEC also adduced evidence

that its total sales decreased each year after 1990.14

Even if we assume that a decrease in government contracts

necessitated a RIF at CEC, the essential inquiry remains whether

the otherwise justified RIF was used to mask an age discriminatory

replacement situation. A RIF —— a benign reason for layoffs ——

cannot be used surreptitiously to effect ag e discrimination.

Further, the fact that Newell had a law degree does not validate

CEC’s decision to retain him, as th e company stated that a law

d egree was not a criterion of eligibility for the position . We

conclude in this case that, in light of the strong replacement

facts and other evidence, a jury could reasonably find that

Pilcher’s age was a determinative influence on Pilcher’s discharge.

Pilcher’s evidence of a one-on-one replacement by Newell is

supported by additional evidence of age discrimination. Pilcher

has shown that two other older employees were laid off after being

required to train their own younger successors. The record shows

also that Lonnie Roberts stated that CEC employees didn’t “walk

with a purpose” and that upon meeting Pilcher he inquired about his

heart condition. Even though these comments could be interpreted

as mere chance remarks, they are susceptible of being interpreted

as reflecting an age bias as well. Pilcher also contends that

Roberts treated older e mployees more harshly than younger

employees. Finally, Pilcher states that during Newell’s job

interview, at which Pilcher was present, Roberts stated that

Pilcher was “retiring.”32 84 F.3d 144 (5th Cir. 1996).

33 Id. at 149-50.

15 In Atkinson v. Denton Publishing Co., 32 we revers ed summary

judgment for an employer after finding that the discharged employee

had presented sufficient evidence to create genuine issues of

material fact as to whether t he employer’s reasons for his

discharge were pretextual. The employee in A tkinson submitted

evidence to rebut the employer’s ar ticulated reason, as well as

evidence that the general manager: (1) preferred to deal directly

with the younger, less experienced subordinates; (2) told another

employee that he preferred solving problems with younger employees

because the discharged employee had “old ideas and old ways”;

(3) gave raises to younger employee s while withholding them from

older employees; and (4) laid off other older employees and

replaced them with younger workers. 33 Here, Pilcher, like the

plaintiff in Atkinson

, offered su mmary judgment evidence that we

deem sufficient to create a jury question on pretext.

III

CONCLUSION

Inasmuch as our plenary review satisfies us that Pilcher did

establish a prima facie case of age discrimination and presented

sufficient summary judgment evidence to demonstrate the existence

of a genuine issue of material fact regarding the RIF as possible

pretext for d iscriminatory replacement, we reverse the summary16

judgment granted by the district court in favor of CEC and remand

for further proceedings consistent herewith.

REVERSED and REMANDED.