1 United States Court of Appeals,

Fifth Circuit.

No. 95-10519

Summary Calendar.

Ellis E. NICHOLS, Jr., Plaintiff-Appellant,

v.

LORAL VOUGHT SYSTEMS CORPORATION, Defendant-Appellee.

April 22, 1996.

Appeal from the United States District Court for the Northern

District of Texas.

Before WIENER, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

This is an age discrimination case filed pro se by Nichols

under the ADEA on May 24, 1994, against Loral Vought and its parent

company, Loral Corporation. On June 15, 1994, Loral Vought filed

its original answer, and Loral Corporation filed a motion to

dismiss. Thereafter, Nichols hired an attorney to represent him in

the action and agreed to the dismissal of Loral Corporation. Loral

Vought then mov ed for summary judgment, and on May 22, 1995, the

district court granted the motion. Nichols timely appealed.

I. FACTUAL BACKGROUND

Loral Vought hired Nichols as a contracts administrator on May

5, 1989. Loral Vought gives each of its employees annual written

per formance evaluations. Bill Nance, Nichols' supervisor at the

time, gave Nichols a performance evaluation for 1989, ranking

Nichols in the middle of five categories ("Meets Expectations").

Nance also gave Nichols his performance evaluation for 1990. Loral2

Vought's evaluation form in 1990 had changed somewhat from the

previous year and contained four categories instead of five.

Nance's 1990 e valuation of Nichols rated him in the next to the

lowest of these categories ("Usually Meets Expectations").

On July 17, 1991, Nichols was transferred into a different

section of Loral Vought where he continued to work as a contracts

administrator under the supervision of Kathy K. Verrijcke. In

1991, Verrijcke also gave Nichols a performance rating of "Usually

Meets Expectations." On November 23, 1992, Verrijcke gave Nichols

an interim performance evaluation as a follow-up to the 1991

assessment. Nichols again received a rating of "Usually Meets

Expectations."

In early 1993, Loral Vought determi ned that a company-wide

reduction of personnel was necessary. Jack Abbott, the Director of

Financial Management for Loral Vought, was responsible for making

the actual decision of wh om would be laid off in the contracts

administration area. In making the lay off selections, Abbott

reviewed the performance evaluations of all employees. Abbott

selected Nichols for lay off, and Loral Vought terminated Nichols'

employment on March 29, 1993.

Nichols' age discrimination complaint centers on allegations

that his supervisor, Kathy Verrij cke, was biased against him

because of his age. As evidence, Nichols cites "three or four

occasions" prior to 1992 when Verrijcke pointed out that she was

Nichols' superior despite being younger. Additionally, two similar

events allegedly occurred in 1992, one in August and one in3

November. Nichols contends that Verrijcke's bias led her to give

him unreasonably harsh performance evaluations, to harass him about

his age, and to "poison" the minds of management officials who made

the decision to lay Nichols off. Nichols additionally alleges that

Verrijcke made insensitive statements regarding disabled persons

and African-Americans and that she habitually made off-color or

sexual remarks.

Loral Vought denies that its decision to lay off Nichols was

based on age. Instead, it argues that Nichols was laid off for

legitimate, non-discriminatory reasons and that Verrijcke played no

part in determining which employees would be laid off. Loral

Vought further contends that Nichols' layoff was the result of

careful application of standardized procedures, beginning with

Nichols' an nual performance evaluations and culminating in the

methodical selection of employees for layoff.

II. ANALYSIS

The standard of review on appeal from a district court's

granting of summary judgment is de novo. Bodenheimer v. PPG

Indus., Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment is

appropriate if there is "no genuine issue as to any material facts

and

... the moving party is entitled to judgment as a matter of

law." Fed.R.Civ.P. 56(c). The threshold inquiry, therefore, is

whether there are "any genuine factual issues that properly can be

resolved only by a finder of fact because they may re asonably be

resolved in favor of either party." A nderson v. Liberty Lobby,

Inc., 477 U.S. 242, 25 0, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 2024

(1986). Of course, "the substantive law will identify which facts

are material." I d. at 248, 106 S.Ct. at 2510. All of the evidence

must be viewed in the light most favorable to the motion's

opponent. Bodenheimer, 5 F.3d at 956.

A plaintiff who can offe r sufficient direct evidence of

intentional discrimination should prevail, just as in any other

civil case where a plaintiff meets his burden. S ee Portis v. First

Nat'l Bank of New Albany, Miss., 34 F.3d 325, 328 n. 6 (5th

Cir.1994). However, because direct evidence of discrimination is

rare, the Supreme Court has devised an evidentiary procedure that

allocates the burden of production and establishes an orderly

presentation of proof in discrimination cases. B odenheimer, 5 F.3d

at 957; s ee McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Nichols cannot point to sufficient direct evidence of

discrimination to prevail without using the burden-shifting

analysis. "Direct evidence of discrimination is evidence which, if

believed, would prove the existence of a fact ( i .e., unlawful

discrimination) without any inferences or presumptions. "

Bodenheimer, 5 F.3d at 958 (emphasis added). Nichols' evidence is

insufficient to establish unlawful discrimination without any

inferences. Therefore, he must rely on the traditional

burden-shifting analysis as set forth by the Supreme Court and

adopted by this Circuit.

In a reduction-in-force case, a plaintiff makes out a prima

facie case by showing (1) that he is within the protected age5

group; (2) that he has been adversely affected by the employer's

decision; (3) that he was qualified to assume another position at

the time of the discharge; and (4) "evidence, circumstantial or

direct, from which a factfinder might reasonably conclude that the

employer intended to discriminate in reaching the decision at

issue." A mburgey v. Corhart Refractories Corp., Inc., 936 F.2 d

805, 812 (5th Cir.1991) (citation omitted). There is no dispute

that Nicho ls was within the protected age group and that he was

adversely affected by being laid off. However, Loral Vought

asserts that Nichols failed to establish that he was qualified to

assume another position at Loral Vought, had one been available at

the time of the lay off. Furthermore, Loral Vought disputes that

Nichols showed any evidence, circumstantial or direct, from which

a factfinder might reasonably conclude that Loral Vought intended

to discriminate in laying off Nichols.

"[T]o establish a prima facie case, a plaintiff need only

make a very minimal showing." T hornbrough v. Columbus & Greenville

R.R. Co., 760 F.2d 633, 639 (5th Cir.1985). Therefore, we assume

arguendo that Nichols has established a prima facie case.

A prima facie case raises an inference of unlawful

discrimination. R hodes v. Guiberson Oil Tools, 75 F.3d 989, 992

(5th Cir.1996) (en banc). The burden of production then shifts to

the defendant to proffer a legitimate, non-discriminatory reason

for the challenged employment action. I d. The defendant may meet

this burden by presenting evidence that "if believed by the trier

of fact, would support a finding that unlawful discrimination was6

not the cause of the employment action." Id. (quoting St. Mary's

Honor Center v. Hicks, 509 U. S. 502, ----, 113 S.Ct. 2742, 2747,

125 L.Ed.2d 407 (1993)).

Loral Vought has articulated a legitimate, non-discriminatory

reason for the layoff, i.e., the reduction in force. If believed

by the trier of f act, this reason would support a finding that

unlawful discrimination was not the cause of the disc harge.

Therefore, the presumption rais ed by Nichols' p rima facie case

disappears. Rhodes, 75 F.3d at 992.

Next, the plaintiff is given the opportunity to demonstrate

that the defendant's articulated rationale is merely a pretext for

discrimination. I d. If Nichols can raise a genuine issue of

material fact as to whether he has established pretext, that will

suffice to avoid summary judgment. No additional evidence of

discrimination is needed to defeat the summary judgment motion.

See id. at 993 ("In t andem with a p rima facie case, the evidence

allowing rejection of the employer's proffered reasons will often,

perhaps usually, permit a findin g of discrimination without

additional evidence."). As evidence of pretext, Nichols points to

the alleged disparity between Verrijc ke's evaluations of him and

those of his previous supervisor (Nance), the statements allegedly

made by Verrijcke, and c omparative evidence purportedly showing

that Nichols was clearly better qualified t han younger workers

allowed to remain at Loral Vought.

Of Nichols' four evaluations, he received the same rating on

the three that used the same form. Accordingly, the reviews do not7

sup port Nichols' contention that Verrijcke rated him lower than

Nance.

Similarly, Nichols' contention that Verrijcke's alleged

comments regarding his age are evidence of unlawful discrimination

is without merit. Nichols claims that on roughly five to six

occasions over approximately three and a half years, the last

occurring in November of 1992, Verrijcke pointed out that she was

Nichols' superior despite being younger. Even assuming that a jury

could reasonably infer that these comments, if made, were more than

"stray remarks," see Waggoner v. City of Garland, Tex., 987 F.2d

1160, 1166 (5th Cir.1993), Verrijcke was not the relevant decision

maker. To be probative, allegedly discriminatory statements must

be made by the relevant decision maker. See Normand v. Research

Inst. of Am., Inc., 927 F.2d 857, 864 & n. 3 (5th Cir.1991). Here,

however, Nichols fails to offer any competent summary judgment

evidence to rebut Abbott's assert ion that he did not consult

Verrijcke in making the layoff decision. The only way Nichols has

shown that Verrijcke particip ated in the decision is through her

evaluations of Nichols which Abbo tt considered. However, as

previously discussed, Nichols has not shown these evaluations to be

discriminatory.

Last, Nichols points to evidence purportedly showing that he

was clearly better qualified than younger workers allowed to remain

at Loral Vought. A genuine issue of material fact exists when

evidence shows the plaint iff was "clearly better qualified" than

younger employees who were retained. Bodenheimer, 5 F.3d at 959.8

However, this evidence must be more than merely subjective and

speculative. S ee Molnar v. Ebasco Const ructors, Inc., 986 F.2d

115, 119 (5th Cir.1993); E lliott v. Group Medical & Surgical

Serv., 714 F.2d 556, 564 (5th Cir.1983), cert. denied, 467 U.S.

1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). To establish a fact

question as to relative qualifications, a pla intiff must provide

sufficiently specific reasons for hi s opinion; mere subjective

speculation will not suffice.

In his attempt to show that he was more qualified than other

individuals who were not laid off by Loral Vought, Nichols submits

only his own affidavit and deposition testimony where he claims to

be better qualified than three of the remaining contracts

administrators. In his affidavit, Nichols states that "younger,

less qualified persons (Jack Hamilton, Jon Goodwin, and Jamie

Larson), were allowed to remain at Defendant. Ms. Larson was in

her twenties and had no actual experience in federal contracting

prior to her employment with Defendant." Similarly, in deposition

testimony Nichols concludes that he was better qualified than these

individuals because he had more work experience.

However, an "attempt to e quate years served with superior

qualifications

... [is] unpersuasive." B odenheimer, 5 F.3d at 959.

Obviously, work experience is one component of defining who is more

"qualified." However, B odenheimer, mandates that greater

experience alone will not suffice to raise a fact que stion as to

whether one person is clearly more qualified than another. More

evidence, such as comparative work performance, is needed.9

Nichols' summary judgment evidence does not contain suffi ciently

specific reasons to support his subjective opinion that he was more

qualified than the other individuals.

Accordingly, Nichols has failed to raise a genui ne issue of

material fact as to whether he established that Loral Vought's

proffered reason was pretext for unlawful discrimination.

Therefore, the su mmary judgment granted by the district court is

AFFIRMED.