* District Judge of the Northern District of Illinois, sitting by

designation. 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 Oil2

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 w ith 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. S ee Rhodes v. Guiberson

Oil Tools Div. , 927 F.2d 876 (5th Cir.), c ert. 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. I d

. at 887.

After remand, the magistrate judge held a hearing on damages and

determined that Rhodes had sustained damages in the amou nt of

$188,866.70. Guiberson Oil renewed its motion for judgment as a

matter of law on lack of evidenc e but the magistrate denied such

motion. Guiberson Oil now appeals both the jury's finding of

liabilit y 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.3 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 suffic ient evidence upon which a

reasonab le 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 Div ision 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

th e oil field services industry experienced severe economic

difficulties. In response to these pressures, Atlas reduced the

size of its sales force f rom 70 to 25 through major layoffs

occu rring 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, and4

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 difficultie s 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 sa les 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 that5

Rhod es was a hard worker. But each customer also confirmed that

his bids were not competitive and that t hey 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 impo rtant to note what is n ot in the record.

There is no testimony of any kind that Rhodes' age o r the age of

any other employee was ever mentioned or discussed as a decisionmaking factor. There is no testimony from any fellow employee that

Guiberson Oil's management personnel t alked 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 3 2-year old "technical representative" were1 This "replacement" was over 40 and therefore within the protected class but was younger than Rhodes.

6 terminated "because they were his least productive employees." In

support of his claim that he had been te rminated "because of his

age," Rhodes offered only the following:

1. After Rhodes was terminated, Guibers on Oil hired a 42-

year old 1 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" sal esmen for what

some of the "other" sal esmen were costing, but it was

Snyder who offered the s tatement 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"

e mployees 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 evidence2 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 in this case leads us to c onclude that there is no evidence or

testimony which shows any connection bet ween 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

severanc e report was "false" and that the reasons offered by4 The dissent echoes Rhodes' arguments, particularly as to what

is called "discrepancies between Rhodes' severanc e report and

Guiberson's trial justification for his discharge." We see no

discrepancy whatsoever between the language of the severance report

ind icating 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 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 Hon or 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 S t. Mary's is not easy to

analyze, but from our view, that opinion breaks down into the

following primary and secondary holdings:9

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. S t. 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

irre levant and disappears; and a case involving a

claimof discrimination should then be treated at

the tria l and appellate level just like any other

case calling for an ultimate determination of fact.

Id . at 2753.

(2) The u ltimate factual determination in a Title VII

case is: "Did the employer take an act ion [i.e.

failure to hire, f ailure 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. I d

. at

2749.10

C. In add ition, there were two other subordinate holdings

which were mater ial to the court's conclusion in S t.

Mary's :

(1) The term "pretext" means "pretext for

discrimination". To establish that a proffered

reason for an action taken by an emplo yer 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 pl aintiff

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 sug g ests 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 w hich are critically important to the

resolution on this case: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 (par ticularly if disbelief is

accompanied by a suspi cion 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 (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. T he 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 matter6 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." S ee Hicks v.

St. Mary's Honor Center

, 970 F.2d 487, 492 (8th Cir. 1992)

(internal corrections omitted).

12 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's 6

. I d

. 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 determ ine 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 ad dressed the impact of S t. 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 rely13

solely on conclusionary allegations trying to discredit the

employer's reasons. B odenheimer

, 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-rela ted, 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 cite d 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

. I d

. at

840 (affirming summary judgment in favor of the employer).

Finally, in A nderson 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 as14

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. A nderson

, 1 3 F.3d at 1125-26. In A nderson

, 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 discharge d to reduce salary, such facts would

not establish age discrimination. Id

.

The employee in Anderson a lso 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 H azen P aper 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 and7 The jury also found for Biggins on his ERISA claim and some

of his state tort and contract claims.

15 Hazen Paper is an ADEA case. Since the case before us is an ADEA

case, we believe that H azen Paper is more relevant a n d

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 stat e law. As in this case, H azen Paper

was fully tried to a jury. T he jury found that Hazen Paper

violated the ADEA and awarded Biggin s $560,775 in damages. 7 The

jury als o found that the ADEA violation was willful (the jury in

this case did not find a willful v iolation). Both Biggins and

Hazen Pape r 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, th e Supreme Court reversed the Circuit16

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 p rotected

trait actually played a role in that process and had a

determinative influence on the outcome." I d

. at 1706. Finally,

the Supreme Court stated:

"Because age and years of service are analytically distinct, an employer can take

account of one w hile 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.

Ac cordingly, in H azen Paper the Supreme Court reversed the

ADEA claim and remanded the case to the Circuit Court to

"reconsider whether the jury had sufficien t 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 i nfluence" 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 S t. Mary's or more specifically as to the concept that the

language quoted in footnote 5, supra

, was intended to fashion some8 With all due respect to our colleague, the six cases cited in

his disse nt 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; s ee

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 e mployee

proves that the employer's nondiscriminatory reason is pretextual,

th e 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 (7 th Cir. 1994) (affirming summary judgment for the

employer notwiths tanding 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. C ompare

, e.g.

, Leblanc

, 6 F.3d 836 (1st

Cir. 1993) with W ashington v. Ga rrett , 10 F.3d 1421 (9th Cir.

1993).

17 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 his18 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 nondiscriminatory reason is not believable, the employee is

entitled to judgment which cannot be set aside for

insufficiency of the eviden c e 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 S t.

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.19

ZAGEL, District Judge, specially concurring.

I join in Judge DeMoss' opin ion, 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 fin d for the plaintiff if you

find that he has proven by a preponderance of

the evidence, that the reasons state d by the

defendant were not the true reasons fo r the

plaintiff's discharge, or that the plaintiff's

age more l ikely 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 S t. Mary's t o say that a

jury cannot find liability for the plaintiff solely bec ause 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 dif ferent (and much lesser) finding that the employer's

explanation of its actions was not believable." S t. 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 discrim ination." I d

. at 2749. Whether the "lie"

serves as a proxy for discrimination necessarily depends on the20

context in which the "lie" is uttered. S ee 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 onl y ground for the decision in S t.

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 th e lie and the other evidence the

ultimate fact that age was a determining factor in the discharge.1 In order to pr operly exercise our appellate function, we view the

evidence i n 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). 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 em ployment with Guiberson Oil and

other divisions of Dresser Industries in 1955 as a salesman of oilindustry-related products. 1 On October 31, 1986, Guiberson Oil

discharg ed 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 rec eived 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 re hiring 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 Guiberson2 The parties stipulated that a magistrate judge would

decide all issues except liability. Consequently, after the jury

found that Guiberson Oil ha d discriminated against Rhodes, the

magistrate judg e dismissed Rhodes' case with prejudice because

Rhodes, prior to bringing this action, failed to timely file a

charge with the Equal Employment Oppo rtunity Commission. Rhodes

appealed the dismissal, contending that his suit was not timebarred. We agreed, reversed the magistrate judge's decision

setting aside the jury verdict, and remanded for a determination of

damages. S ee 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 q uestion 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 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 o f 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,23

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 reas onable 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 substan tial evidence opposed to the motion[],

that is, evidence of such quality and weight that

reasonable and fair-minded men in t he 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 (5 th 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." B odenheimer v. PPG Indus., Inc.

, 5 F.3d 955,

957 (5 th Cir. 1993). If the plaintiff establishes a prima facie

case, he creates a presumption of discrimi nation, T exas 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"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 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 bu rden by presenting evidence that, " i f

believed by the trier of fact

, would support a finding that

unlawful discrimination was not the cause of t he employment

action." S t. 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. B urdine

, 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. S t. 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

(partic ularly if disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of the prima facie case,

suffice to show intentional discrimination." S t. Mary's

,

___ U.S.

at

___, 113 S. Ct. at 2749. On appeal, Guiberson Oil conceded that

Rhodes had established a prima facie cas e. 4 Thus, we must

determine only whether the evidence supports the conclus ion that25

Guiberson Oil's proffered reason was not the tru e reason for

terminating Rhodes. I d. ("[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 w ere 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 r eport and the justification presented at

trial co uld reasonably lead a jury to disbelieve Guiberson's

explanation. Consequently, the evidence supports the jury's

finding that G uiberson Oil's proffered reasons for terminating

Rhodes were pretextual. That disbelief, together with the elements

of Rhodes' p rima facie case, p ermitted )) but did not require )) the

jury to find that Guiberson Oil intentionally discriminated against

Rhodes on account of his age. S ee St. Mary's

,

___ U.S. at

___, 113

S. Ct. at 2749; A nderson 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 for5 Compare Atkin v. Lincoln Prop. Co. , 991 F.2d 268 (5th

Cir. 1993) (reversing jury verdict of age discriminatio n 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); M oore 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 . . . discharge are false"); W ashington v. Garrett

, 10 F.3d 1421,

1433 (9th Cir. 1993) (holding that "the f actfinder . . . 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 G uiberson

Oil hired a younger person to replace Rhodes shortly after his

discharge constitute relevant evidence of intentional age

discrimination. S ee, 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 discrimi nation). Accordingly, I would hold that

the evidence sufficiently sup ported 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

A6 In fact, the majority's recitation of the facts mirrors the statement

of facts in Guiberson 's brief almost verbatim. C ompare 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 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. S ee 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 w e believe

that Rhodes "undermine[d] the legitimate business reason proffered

by Guiberson," slip op. at 5, but whether the jury could reasonably

have disbeliev ed 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,7 See slip op. at 5 (criticizing Rhodes for failing to provide evidence

of di scussions 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 inte ntional discrimination. U nited 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 an d inferences therefrom to

satisfy her burden of persuasion. D avis 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 re placed 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 Genera l Corp.

, 12 F.3d 1310, 1317 (4th Cir.

1993) ("The evidence, however, that was offered to establish the prima facie case

rema ins in the case, together with any evidence presented to show that the

28 only a sufficient one. Moreover, much of evidence that the

majority castigates Rhodes f or lacking is direct evidence, 7 which

is typically absent in dis crimination 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 fa vorable to

Rhodes to three items. 9 As the panel in R hodes I noted, however,

Rhodes also provided the severance report. S ee 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 t o ignore the

evidence underlying those conclusions. 10 Yet the majority does notemployer's explanation was untrue or pretextual."); L eBlanc v. Great Am. Ins.

Co. , 6 F.3d 836, 843 (1st Cir. 1993) ("[T]he trier of fact may consider, along

wit h 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).

1 1 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 situation s in which this fundamental lack of evidence

exists." S ee 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. 19 92); 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); Y oung 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.2 d 747, 749-51 (5th Cir. 1989);

Hansard v. P epsi 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.), c ert. denied

, 490 U.S.

1098, 109 S. Ct. 2448, 104 L. Ed. 2d 1003 (1989)). Indeed, M oore also indicates

that the failed cases to which the majority refers are "smaller" in number. 990

F.2d at 817 n.24.

29 include in Rhodes' evidence the discr e pancies between Rhodes'

severance report and Guibers on'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, s ee 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. 1130 B12 ___ U.S. ___, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).

13 See slip op. at 10.

1 4 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); i d. 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 in f er discrimination solely from proof of pretext,

Guiberson Oil waived any cl aim of error by not objecting to the jury charge

below. S ee Alford v. Dean Witter Reynolds, Inc.

, 975 F.2d 1161, 1163 (5th Cir.

1992).

31 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, su ffice to show

intentio nal 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). 1 4 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. S ee

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)32

(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 cour t'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

furthe r than the facts before the court. Indeed, the Court of

Appeals on remand declined t o accept the prior trial court's

holding of no discrimination and remanded for consideration of the

very lan guage stated above. H icks 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. S ee LeBlanc v.

Great Am. Ins. Co.

, 6 F.3d 836, 843 (1st Cir. 1993) (quoting S t.

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. 13 98, 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 its15 Many cases use Hicks , rather than St. Mary's , as the short form.

33 action permits the finder of fact to determine that the defendant's

actions were motivated by an improper di scriminatory intent, but

does not compel such a finding."); Seman v. Coplay Cement Co. , 26

F. 3d 428, 433 (3d Cir. 1994) (" Hicks 1 5 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 empl oyer'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 c ase and by

showing that the employer's proffered nondiscriminatory reasons for

her demotion or discharge are factually false."); W ashington 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 proo f of a p rima facie case and

showing of pretext without anything more

. . . ."). Indeed, M anzer

states that "[e]very circuit court to address the impact of Hicks16 ___ 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 M cDonnell

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 on the submissibility of employment discriminati on 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 ma jority also attempts to discard S t. Mary's by citing

Hazen Paper Co. v. Biggins 16 a s 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 S t. Mary's ignores the fact

that the ADEA was modeled after Title VII, and the s ame analysis

applies to both statutes. 17 Indeed, H azen Paper itself re lies on

several Title VII cases. 18 Accordingly, H azen Paper and St. Mary's

are equally applicable to either a Title VII or an ADEA case.35

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 H azen 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. S ee Hazen Paper

,

___ U.S. at

___, 113 S. Ct. at 1707 (finding that "age and years of service are

analyti cally distinct"). In this case, however, Rhodes did not

seek to prove th at, because Guiberson wanted to deprive him of a

benefit, Guiberson must have acted discriminator ily. Instead,

Rhodes sought to prove that Guiberson discharged him specifically

because of his age. In this case, therefore, the correlative jump

from some ot her factor to age discrimination that H azen Paper

disa llowed is not necessary. Consequently, the holding of H azen

Paper does not mandate the majority's conclusion.

Moreover, Haze n Paper actually supports the holding in St.

Mary's that the majority ignores. In H azen Paper

, while the

Supreme Court held t hat no a utomatic connection between years of

service and age discrimination existed, it also held that years of

service could nonetheless support an inference of age

discrimi nation. "We do not preclude the possibility that an

employer who targets employees with a particular pension status on19 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 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- S t.

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), c ert.

denied

, 62 U.S.L.W. 3863 (U.S. Oct. 3, 1 994), 2 1 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 determinat ion of age discrimination. In both of

these cases, the plaintiff failed to prove pretext. Bodenheimer

,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 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 p roof of pretext or direct evidence of

discriminatory inten t, 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 f ails to address the

question at issue in this case, because the plaintiff in Mitchell

failed even to prove a prima facie case. I d. 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 A nderson 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 that2 5 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." A nderson

, 13 F.3d at 1124. The majority's insistence that Rhodes'

case is automatically insufficient w i thout this additional evidence is the

fundamental flaw in its rationale that compels me to dissent.

38 Hick s 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 pla intiff 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 11 23-24. 2 5 Moreover, A nderson '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,"

s ee slip. op. at 12, had nothing to do with the St. Mary's

standard. Instead, the holding related to the plaintiff's failure

to provi de proof supporting an inference between salary cost

reduction and age discrimination. Id. at 1125-26. Thus, the

support upon which the major ity in this case relies actually

undercuts its reasoning and the foundation of its decision.

IV

For the reasons stated, I respectfully dissent.