IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-20535

Summary Calendar

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RON HAAS,

Plaintiff-Appellant,

VERSUS

ADVO SYSTEMS, INCORPORATED,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

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February 10, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ron Haas appeals a summary judgment in favor of ADVO Systems,

Incorporated (“ADVO”), on Haas's claim of age discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”).

Because Haas raises a genuine issue of material fact regarding

evidence of a nondiscriminatory motive, we reverse and remand.
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I.

Haas submitted an application to ADVO for a Sales Manager

position. He interviewed with Craig Rosengarden, ADVO’s Vice

President for Sales. The interview lasted eighty minutes, during

which Rosengarden commented that Haas was the “first well qualified

candidate that he had met.” Haas then met with Jean Dickson,

ADVO’s Human Resource Manager, for another sixty to eighty minutes.

Haas was called back to ADVO for a second interview, in which

Rosengarden told him that he had offered the Sales Manager position

to another person who had turned it down, leaving Haas and Marie

Barden as the finalists. Rosengarden added that his only concern

about hiring Haas was his age.

About a week later, Haas was invited to meet with Greg

Parnell, who was ADVO’s Regional Vice President and the official

with ultimate hiring authority over the Sales Manager position.

This interview lasted approximately two hours. Shortly thereafter,

Dickson informed Haas that he was not hired. The reason given was

that Rosengarden felt that the chemistry was better with Barden.

At the time, Haas was fifty-four years old, Barden thirty-four.

II.

This court generally analyzes claims under the ADEA via the

burden shifting approach in McDonnell Douglas Corp. v. Green,
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411 U.S. 792 (1972). See Ross v. University of Tex., 139 F.3d 521,

525 (5th Cir. 1998). The plaintiff must carry the initial burden

of establishing a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802. Haas has done this by showing that (1)

he belongs to a protected class; (2) he applied for and was

qualified for a position that was seeking applicants; (3) he was

rejected; and (4) following his rejection, another applicant not of

the protected class was hired. See id.

Thereafter, the burden shifts to the employer, which must

articulate “some legitimate, nondiscriminatory reason for the

employee’s rejection.” Id. ADVO’s argument that Barden was the

better of the two candidates, on the basis of experience,

qualifications, and chemistry, suffices to meet this burden. Cf.

id. at 802-03.

Lastly, Haas must be afforded an opportunity to rebut ADVO’s

purported explanation, to show that the reason given is merely

pretextual. Id. at 804. In determining whether Haas's rebuttal

rescues him from summary judgment, we look to whether he has

“raise[d] a genuine issue of material fact as to whether he has

established pretext.” Nichols v. Loral Vought Sys. Corp., 81 F.3d

38, 41 (5th Cir. 1996). In so doing, we look at rebuttal evidence

in tandem with evidence presented as part of the prima facie case.

Id.

Haas's only evidence that possibly could rebut ADVO’s
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explanation is the statements made by Rosengarden regarding Haas's

age. Between his second and third interviews, Haas was told by

Rosengarden that Rosengarden’s “only concerns about hiring [Haas]

were [his] age . . . .” Construing all reasonable inferences in

favor of Haas, we find that this statement, in light of its

circumstances, precludes summary judgment.

Although, as ADVO forcefully argues, ParnellSSand not RosengardenSShad ultimate hiring authority, it would be inappropriate

for us to infer that Rosengarden’s recommendation to Parnell

regarding Haas was both (1) free from the taint of his concerns

regarding Haas's age and (2) inconsequential to Parnell’s final

decision. It is more reasonable to infer that Rosengarden’s

expressed concern over lack of “chemistry” between the office and

Haas was linked to Haas's age and that Rosengarden’s input indeed

was influential in Parnell’s decision making. 

Instructive in our treatment of Rosengarden’s remarks is

Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996), in

which we noted that 

remarks may serve as sufficient evidence of age

discrimination if the offered comments are: 1) age

related; 2) proximate in time to the [employment

decision]; 3) made by an individual with authority over

the employment decision at issue; and 4) related to the

employment decision at issue. Comments that are “vague

and remote in time” are insufficient to establish

discrimination.

Id. at 655. Rosengarden’s statements were not “vague and remote in
 

1 See Long v. Easterfield College, 88 F.3d 300, 307 (5th Cir. 1996) (“The

degree to which [the ultimate hiring officer]’s decisions were based on his own

independent investigation is a question of fact which has yet to be resolved at the

district court level. Viewing the evidence in the light most favorable to

[plaintiffs], we must assume on appeal that [hiring officer] merely 'rubber stamped'

the recommendations of [his subordinates].”) (emphasis added).

 

2 See Mooney v. Aramco Servs. Corp., 54 F.3d 1207, 1218 (5th Cir. 1995)

(stating that direct evidence of discrimination is that which shows that the

employer in question “actually relied on [the forbidden factor] in making its

decision”); Price Waterhouse v. Hopkins, 490 U.S. 228, 241-46 (1988) (discussing

mixed-motives defense).

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time,” but rather were closely connected in subject matter and time

to the employment decision. Brown suggests, therefore, that

Rosengarden’s comments be viewed as evidence of discrimination as

a matter of law.

We also reject ADVO’s argument that only Parnell was a

relevant decision maker and that Rosengarden exerted no influence

over Parnell’s ultimate decision. The record does not support this

argument, and the inference we make must be to the contrary.

Likewise, we reject ADVO’s assertion that no causal nexus between

Rosengarden’s statements and Parnell’s decision exists as a matter

of law.1

Because we do not construe Haas's evidence to constitute

“direct evidence” of discrimination, however, we do not reach the

issue of ADVO’s mixed-motives defense.2 Instead, we merely

conclude that Rosengarden’s statements provide indirect,

inferential evidence of discrimination, albeit sufficient evidence

to defeat summary judgment.

The summary judgment is REVERSED, and this matter is REMANDED
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for further appropriate proceedings. We express no views as to the

ultimate merits of the claim; we conclude only that the matter

should not be resolved on summary judgment.