UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30287

J.R. RIDGLEY WYVILL

Plaintiff/Appellee/Cross-Appellant,

v.

UNITED COMPANIES LIFE INSURANCE COMPANY; UNITED COMPANIES

FINANCIAL CORPORATION

Defendants/Appellants/Cross-Appellees,

UNITED COMPANIES LENDING CORPORATION

Appellant/Cross-Appellee.

GERALD W. WALDROP

Plaintiff/Appellee/Cross-Appellant,

v.

UNITED COMPANIES FINANCIAL CORPORATION; UNITED COMPANIES

MORTGAGE OF GEORGIA

Defendants/Appellants/Cross-Appellees,

UNITED COMPANIES LENDING CORPORATION

Appellant/Cross-Appellee.

Appeals from the United States District Court for the

Middle District of Louisiana

May 31, 2000

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.1 W aldrop was hired by United Mortgage of Georgia which was later merged

with United Companies Lending Corporation.

2 EDITH H. JONES, Circuit Judge:

Appellant United Companies appeals from the judgment of

the district court, entered upon a jury verdict, awarding

substantial damages to two former employees under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

Unfortunately, the verdict depends on evidence that this court and

others have held inadmissible to support an inference of age

discrimination. In particular, the district court allowed the

plaintiffs to saturate the record wit h testimony pertaining to

other employees in other branches of the company who held different

positions under different supervisors and were terminated at

different times. Shorn of this and other irrelevant evidence, the

judgment cannot stand.

I. BACKGROUND

Gerald Waldrop began work with United Companies Lending

Corporation (the “Lending Company”), a subsidiary compa ny of

defendant United Companies Financial Corporation (“United

Companies”), in 1983 as branch manager in Dalton, Georgia. 1

Waldrop ’s duties included the production of a certain number of

loans p er month, ensuring that branch staff adequately processed

new and existing loans, collecting loans to minim ize delinquency

rates, and maintaining balanced escrow logs. From 1991 to 1993,3

the period relevant to this litigation, Waldro p supervised four

employees: Sandy Stafford, who was assistant manager; Pat McMillan;

Cheryl Welch; and Pat Little. During this period, Waldrop was

supervised by D.C. Brantley, who was two years older than Waldrop,

and Brantley was in turn supervised by Joe Phillips. Waldrop was

terminated from his job in January 1993 when he was forty-seven

years old.

According to United Companies, Waldrop’s relationship

with Brantley began to deteriorate in 1990. Waldrop struck

Brantley in the back of the head at a Company function, calling him

a son-of-a-bitch, and threatening to “whip his ass” if he ever came

to Dalton. When United Companies dismissed Waldrop’s son in early

1991, the discord between Waldrop and Brantley escalated. During

a telepho ne conversation among Waldrop, Brantley and Phillips,

Waldrop allegedly threatened Brantley with physical harm and told

him to keep out of the dispute. Waldrop’s insubordination became

so intolerable that Brantley sent a memorandum to Phillips asking

to be relieved from supervision of the Dalton branch.

Waldrop also had problems with the Dalton branch

e mployees. His abusive behavior towards staff and customers was

brought t o the attention of William S. Spann, Jr., United

Companies’ Director of Human Resources, by Sandy Stafford.

In May 1991, Waldrop was given a six-week paid leave of

absence. Waldrop contends that medical problems associated with4

his diabetes forced this leave, while United Companies argues that

the leave was necessitated by Waldrop’s problems in the office and

with his supervisor. Upon Waldrop’s return, his relationship with

his staff did not improve. In the fall of 1991, he brought both

Stafford and Welch to tears after separate outbursts. In November

1991, Spann and Phillips reprimanded Waldrop and made him apologize

to his employees.

A year later, two of the Dalton branch employees --

McMillan and Welch

-- left the Lending Company. In postresignation letters to Spann, they blamed Waldrop’s behavior for

t heir departures. After receiving these letters, Spann called

McMillan, Welch, and Stafford and discovered that Waldrop’s

behavior had not improved. He discussed Waldrop’s behavior with

Phillips and they decided to terminate Waldrop. Spann (age 47),

Phillips (age 45), and Brantley (age 49) attended the meeting at

which Waldrop was dismissed.

Waldrop does not dispute these events. Rather, he points

out that throughout his employment, he and his branch were

consistently among the top ten performers in the Lending Company,

in terms of quantity and profitability of the loans produced. He

also asserts that new employees were often sent to him for training

and that several of his assistant branch managers became successful

managers of their own branches. In addition, he offered evidence

that Stafford and McMillan visited his home after his termination,5

Stafford to ask for his blessing in succeeding him as branch

manager, and McMillan to show him her grandchild. Waldrop contends

that these visits were not the actions of employees afr aid of or

antagonized by an abusive and rude boss.

J.R. Ridgley Wyvill began employment with United

Companies Life Insurance Company (the “Life Company”), a subsidiary

of United Companies, in 1978. From 1980 until his dismissal in

February 1993, Wyvill managed the credit life department in Baton

Rouge, Louisiana. He was supervised by Lindsay Seals, an executive

vice-president of the Life Company, who in turn reported to Gary

Warrington, the president of the Life Company.

In January 1993, Wyvill made several allegedly disruptive

phone calls to employees of the Lending Company about Waldrop’s

termination. Carl Scott, a Lending Corporation branch manager in

Nashville, heard from Wyvill on January 29, 1993, three days after

Waldrop h ad been fired. Wyvill informed Scott that United

Companies “had gotten the Chief,” referring to Waldrop, and he

warned Scott to “watch his backside.” Scott testified that he did

not know Wyvill before this call and that the call upset him. He

reported the call to Phillips.

The second call was made to Sandy Stafford, Waldrop’s

assistant manager. Like Scott, Stafford did not know Waldrop and

had only met him on two previous occasions during her nine years

with United Companies. Stafford was being considered as a6

replacement for Waldrop, and Wyvill warned her that if she took the

position, she would be taking “blood money.” Later, Wyvill called

Stafford again and asked her to lie to United Companies management

who were investigating his telephone calls. Stafford refused.

According to Wyvill, he placed these calls at the behest

of Tee Brown, Jr., the son of Terrell Brown, Sr., the CEO of United

Companies. The younger Brown wanted Wyvill to investigate an

underground newspaper at United Com panies, T he Unlink

, that had

been critical of United Companies management.

Upon receiving Scott’s report about Wyvill’s phone call,

Phillips pull ed the telephone record of calls made from Wyvill’s

office and discovered that Wyvill had placed phone calls to several

former employees who had been terminated or h ad left under

unpleasant circ umstances. Phillips notified Spann about these

calls, and Spann and Roger Clark, the president of the Lending

Corp oration, called Stafford and were told about Wyvill’s phone

call to her.

A m eeting was then held, attended by United Companies

senior management and Wyvill, where Wyvill was questioned about the

nature of his calls. Wyvill did not mention that the calls were

part of his investigation into The Unlink

. Finding Wyvill’s

explanations insufficient, Wyvill’s direct supervisors, Seals (age

58) and Warrington (age 53), with the agreement of the assembled7

managers, terminated him effective February 1, 1993. Wyvill was

fifty-three years old.

According to Wyvill, his silence with regard to The

Unlink investigation was meant to protect Tee Brown. Wyvill later

produced testimony that when Brown, Sr. discovered that his son had

put W y vill up to the calls, he paid Wyvill $5000 to “leave

quietly.”

Both Wyvill and Waldrop sued their fo rmer employers.

Their cases were consolidated over the dissent of United Companies.

After procedural skirmishing and a mistrial followed by a six-day

trial, the jury returned a verdict finding that the plaintiffs had

been discriminated against because of their age and that the

discrimination had been willful. The jury awarded Waldrop

$76,569.00 in back pay and Wyvill $186,939.00 in b ack pay. The

district court entered judgment on the jury’s verdict, effectively

doubling each man’s back pay award because of the finding of

wilfullness. 29 U.S.C. § 626(b). Front-pay to Wyvill, prejudgment interest, and attorneys’ fees were added to the judgment.

United Companies appeals, renewing its arguments,

properly preserved in the district court, that the verdict was not

supported by substantial evidence and that the district court erred

in admitting testimony about and from former United Companies

employees who were not similarly situated to either Wyvill or8

Waldrop. In addition, United Companies appeals, and Wyvill and

Waldrop cross-appeal, various issues relating to damages. Because

we reve rse for evidentiary errors and insufficient proof of

liability, we do not reach the parties’ other arguments.

II. DISCUSSION

A. Standard of Review

We review the district court’s denial of a motion for

judgment as a matter of law de novo

. S cott v. Univ. of Miss.

, 148

F.3d 493, 503 (5th Cir. 1998). “‘A motion for judgment as a matter

of law

. . . in an action tried by jury is a challenge to the legal

sufficiency of the evidence.’” Id. , quoting Harrington v. Harris

,

118 F.3d 359, 367 (5th Cir. 1997). Jury verdicts are considered

under the standards established in Boeing Co. v. Shipman

, 411 F.2d

365, 374 (5th Cir. 1969)(en banc), overruled on other grounds,

Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331 (5th Cir. 1997)(en

banc), viewing all th e evidence and drawing all reasonable

inferences in the light most favorable to the verdict. Rhodes v.

Guiberson Oil Tools

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

citing Boeing , 411 F.2d at 374.

Under Boe ing , there must be a conflict in substantial

evidence to create a jury question. S cott

, 148 F.3 d at 504.

“Substantial evidence is defined as ‘evidence of such quality and

weight that reasonable and fair-m inded men in the exercise of9

impartial judgment might reach different conclusions.’” Rhodes

, 75

F.3d at 993, quoting Boeing

, 411 F.2d at 374. “A mere scintilla of

evidence is insufficient to present a question for the jury.”

Boeing , 411 F.2d at 374.

B. Analysis of Plaintiffs’ Claims

In the absence of direct proof of discrimination, the

plaintiff in an age discrimination case must follow the three-step

burden-shifting framework laid out in McDonnell Douglas Corp. v.

Green

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

Texas Dep't of Community Affairs v. Burdine

, 450 U.S. 248, 101

S.Ct. 1089, 67 L.Ed.2d 207 (1981). United Companies argues that

Wyvill and Waldrop failed to set out the McDonnell/Douglas-Burdine

prima facie case of age discrimination, and their claims should be

dismissed. However, because this case has been fully tried on the

merits, we “need not address the sufficiency of [plaintiffs’] prima

facie case, and may instead proceed directly to the ultimate

question of whether [plaintiffs] have produced sufficient evidence

for a jury to find that dis crimination has occurred.” A tkin v.

Lincoln Property Co.

, 991 F.2d 268, 271 (5th Cir. 1993)(quotations

omitted).

The critical issue is thus whether Waldrop and Wyvill

produced sufficient evidence that United Companies’ explanation for

their discharges was merely a pretext for age discrimination. In10

Rhodes v. Guiberson Oil Tools

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

banc), the Fifth Circuit discussed the burden confronting an ADEA

plaintiff trying to prove pretext:

[A] jury issue will be presented and a

plaintiff can avoid summary judgment and

j udgment as a matter of law if the evidence

taken as a whole (1) creates a fact issue as

to whether each of the employer’s stated

reasons was 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. The employer, of course, will be

entitled to

. . . judgment if the evide nce

taken as a whole would not allow a jury to

infer that the actual reason for the discharge

was discriminatory.

Rhodes

, 75 F.3d at 994. United Companies argues that plaintiffs

did not meet this burden, and we agree. Having comprehensively

reviewed the evidence, we conclude that while plaintiffs’ evidence

may have cast doubt on the proffered explanations for their firing

or on the soundness of the company’s business decision, it was

insufficient to show that the real reason was age discrimination.

C. Plaintiffs’ Evidence of Pretext

1. Anecdotal Evidence

Plaintiffs strongest age-related evidence was “anecdotal”

testimony from former United Companies employees tha t United

Companies had a “pattern and practice” of discriminating against

older workers. This evidence included witnesses’ subjective

beliefs that they and others had been terminated on account of age.11

United Comp anies argues that these anecdotal accounts of

discrimination should have been excluded as incompetent to support

a claim of pattern or practice discrimination. We agree.

A trial judge’s ruling on the admissibility of evidence

is generally reviewed for an abuse of discretion. M ooney v. Aramco

Services Co.

, 54 F.3d 1207, 1220 (5th Cir. 1995). “We will not

reverse a d istrict court's evidentiary rulings unless they are

erroneous and substantial prejudice results. The burden of proving

substantial prejudice lies with the party asserting error.” Id.

,

quoting FDIC v. Mijalis , 15 F.3d 1314, 1318-19 (5th Cir. 1994).

Plaintiffs introduced anecdotal testimony from and about

former employees in an effort to show that United Companies, a

company of 2700 employees, had a “pattern or practice” of

discriminating against older workers. A “pattern or practice” of

discrimination does not consist of “iso lated or sporadic

discriminatory acts by the employer.” Cooper v. Federal Reserve

Bank of Richmond , 467 U.S. 867, 875, 104 S.Ct. 2794, 2799, 81

L.Ed.2d 718 (1984). Rather, as the Supreme Court has explained,

“it must be established by a preponderance of the evidence that

‘[the impermissible] discrimination was the company’s standard

operating procedu re -- the regular rather than the unusual

practice.” C ooper

, 104 S.Ct. at 2799 (citations omitted). Often,

an illegal pattern and practice is revealed with statistical proof.2 Goff v. Continental Oil Co. , 678 F.2d 593, 596-97 (5th Cir.

1982)(upholding the exclusion of testimony from former employees who did not work

with plaintiff and who had no personal knowledge of the events surrounding

plaintiff’s disch arge); S wanson v. General Services Administration

, 110 F.3d

1180, 1190 (5th Cir. 1997)(affirming the exclusion of testimony from witnesses

who did not work in plaintiff’s office wher e their anecdotal accounts of

discrimination were based on speculation.) ; Schrand v. Federal Pacific Electric

Co.

, 851 F.2d 152, 156 (6th Cir. 1988)(finding that testimony from former

employees who worked in different offices from plaintiff and under different

supervisors was irrelevant to plaintiff’s age discrimination claim).

12 Anecdotes about other employees cannot establish that

discrimination was a company’s standard operating procedure unless

those employees are similarly situated to the plaintiff. Mooney

,

54 F.3d at 1221. This court and others have held that testimony

from former employees w ho had different supervisors than the

plaintiff, who worked in different parts of the employer’s company,

or whose terminations were removed in time from the plaintiff’s

termination cannot be probative of whether age was a determinative

factor in the plaintiff’s discharge. See id. 2

In this case, the plaintiffs’ anecdotal evidence did not

involve similarly situated employees. With regard to Wyvill, none

of the former employees who testified or who were testified about

worked in the Life Company. The Life Company was a separately

incorporated entity with different management independent from the

Lending Company. None of the former employee witnesses was

supervised by either Lindsay Seals or Gar y Warrington, Wyvill’s

supervisors. None of the former employees was terminated under13

circumstances similar to Wyvill’s. It is true that several of the

former employees could testify to their relationship with Bill

Spann, who participated in firing Wyvill. But this single

coincidence between Wyvill’s experience and that of the anecdotal

witnesses could not render them similarly situated.

Regarding Waldrop, no ne of the witnesses were branch

managers in the Lending Company and none had been supervised by

D.C. Brantley within a reasonable time of Waldrop’s termination in

1993. Jim Davis, for example, was a regional vice-president of the

Lending Company with duties that included supervision of sixty-five

branch offices. He reported to Joe Phillips, and he testified that

Phillips and Bill Spann terminated him after first demoting him to

branch manager. The stated reasons for Davis’s termination -- a

“lack of chemistry” and a failure to meet production quotas

-- were

different from the explanation behind Waldrop’s discharge -- rude

and abusive conduct toward staff and customers. The only link

between Davis and Waldrop was the role of Joe Phillips in their

respective terminations, but this alone hardly furnishes a

probative guide to Waldrop’s experience with United Companies. It

would be particularly odd to view Phillips’s role as incriminating

the Lending Company since he, too, testified for Waldrop that he

was a victim of age discrimination.

Phillips was as dissimilar to Waldrop as Davis was,

making his testimony equally irrelevant. He held a different job,3 F or th e same reasons, we find that the court abused its discretion

when, during closing argument , it allowed counsel for Wyvill and Waldrop to

recite the names of forty-four former employees and to claim that these employees

were victims of discrimination by United Companies. There was no evidence that

these employees were similarly situated to Wyvill and Waldrop, and there was

indeed no evidence, beyond counsel’s naked assertion, that these employees had

been discriminated against.

14 regional vice-president, and he reported to a different supervisor,

Roger Clark. Witnesses Garold Cooke and Floyd Desormeaux were

likewise dissimilar to Waldrop. Cooke, who reported to Phillips,

was an area supervisor of seven branch offices in the Lending

Company, and Desormeaux was a vice-preside nt of the Lending

Company. Although all these witnesses seem to have been similarly

situated among themselves as senior managers with United Companies,

nothing about their experiences connected with Waldrop. They held

different jobs than Waldrop, executed different dut ies, and were

accountable t o different supervisors. We have excluded such

testimony in the past as irrelevant in supporting a “pattern or

practice” claim, and we must do so again here. S ee Mooney

, 54 F.3d

at 1221. 3

By admitting this evidence, the district court

substantially prejudiced United Companies, forcing it to respond to

each witness’s claims, and creating, in effect, several “trials

within a trial.” S ee Mooney

, 54 F.3d at 1220-1221 (quoting the

district court’s opin ion that anecdotal testimony forced the

defendant to litigate more than the claims actually set for trial).4 I n fact, Davis, Cooke, and Deso rmeaux all testified that they had no

personal knowledge of the circumstances surrounding the terminations of Wyvill

and Waldrop.

15 As we have seen, these mini-trials were not probative on the issue

of whether Waldrop or Wyvill faced discrimination. S ee Sims v.

Mulcahy

, 902 F.2d 524, 531 (7th Cir. 1990)(holding that the

introduction of alleged discriminatory acts with no relation to the

discrimination claimed by the plaintiff creates “mini-trials” with

no probative value).

The prejudice worked by t his testimony was all the

greater because of the mini-trials’ effectiveness. As noted above,

the anecdota l witnesses all held similar senior level positions

with the Lending Company and could be said to have been similarly

situated to one another. In addition to contending that they had

suffered from age discrimination, the witnesses c laimed personal

knowledge of the events sur rounding each other’s terminations.

Their te stimony would have been relevant if they had been

plaintiffs, but they were not, and the fact that these witnesses

made each other’s case so well distracted attention from the fact

that they had little to say about Wyvill’s and Waldrop’s

terminations. 4

Given the plaintiffs’ inability to offer any d i rect

evidence of age discrimination, this parade of anecdotal witnesses,

each recounting his own, entirely unrelated contention of age16

discrimination at the hands of the defendant, substantially

preju diced United Companies. This evidence should have been

excluded, and we hold that the district court abused its discretion

in not doing so.

2. Age-Based Comments

Plaintiffs also relied on several age-related comments

made by United Companies CEO Terrell Brown, Sr. as proof that agebias moti vated the terminations here. Former employee Jim Davis

testified that “[Brown, Sr.] felt that . . . the world had passed

[some of the older employees] by, that [the older employees] were

just to o old to get the job done, and that we should either find

another position for them or terminate them.” Former employee Joe

Phillips testified that “in the early nineties, [Brown, Sr.] told

me that he wanted the company to be mean and lean, and he wanted to

go to a young, aggressive group of people.” Phillips further

testified that Brown, Sr. generally wanted to “get rid of the

people that were [currently employed at United Companies] so that

we can make more money, be more aggressi ve, more productive.”

Former employee Garold Cooke testified that Brown Sr. “wished [the

older men in corporate headquarters] would go away so that [Brown,

Sr.] could get some new blood in the company.”

Assuming, as plaintiffs allege, that Brown, Sr. was one

of the decision-makers in the terminations of Wyvill and Waldrop,

his “stray remarks” are insufficient to create an inference of age5 F ormer employee Garold Cooke alleged that his supervisor, Mark

McKinney, repeatedly made age-related comments evidencing age-bias. But there

is no evidence that McKinney was a decision-maker with regard to the terminations

of Wyvill and Waldrop, and his attitude toward age is therefore irrelevan t to

plaintiffs’ claims. S ee Medina-Munoz v. R.J. Reynolds Tobacco Co.

, 896 F.2d 5,

10 (1st Cir. 1990)(“The biases of one who neither makes nor influences the

challenged personnel decision are not probative in an employment discrimination

case.”).

17 discrimination. 5 S ee

, e.g.

, Waggoner v. City of Garland

, 987 F.2d

1160, 1166 (5th Cir. 1993); Turner v. North American Rubber, Inc.

,

979 F.2d 55, 59 (5th Cir. 1992). In order for an age-based comment

to be probative of an employer’s discriminatory intent, it must be

direct and unambiguous, allowing a reasonable j ury to conclude

without any inferences or presumptions that age was a determinative

factor in the decision to terminate the employee. E qual Employment

Opportunity Commission v. Texas Instruments, Inc. , 100 F.3d 1173,

1181 (5th Cir. 1996), citing Bodenheimer v. PPG Industries, Inc.

,

5 F.3d 955, 958 (5th Cir. 199 3). Brown’s remarks do not satisfy

this test. They are neither direct and unambiguous, nor were they

tied to a time frame relevant to this case. These remarks were not

probative on the ultimate q uestion of age discrimination against

Waldrop and Wyvill.

3. Disparate Treatment Claim

In addition to anecdotal evidence concerning other

employees, Waldrop argued that he was treated more harshly than a

similarly-placed youn ger employee. Waldrop contrasted his fate

with that of Dwayne Burks, an area supervisor in North Carolina18

until 1996, who was also guilty of abusive and rude condu ct to

staff and employees but did not lose his job as a re sult. To

establish a claim of disparate treatment, Waldrop must show that

United Companies gave preferential treatment to a younger employee

under “nearly identical” circumstances. Little v. Republic

Refining Co., Ltd. , 924 F.2d 93, 97 (5th Cir. 1991), citing Smith

v. Wal-Mart Stores

, 891 F.2d 1177, 1180 (5th Cir. 1990)(per

curiam). Waldrop did show that Burks was younger (he was in his

thirties), that Burks was abusive and rude to United Companies

employees, and that there was significant employee turnover in the

offices supervised by Burks. He also proved that Burks was demoted

rather than fired for his misconduct.

But the str iking differences between the two men’s

situations more than account for the different treatment they

received. To begin with, Burks held a different job than Waldrop.

Burks’s employment problems also differed from Waldrop’s. Though

he was similarly abusive to his staff, he did not antagonize his

immediate superior as Waldrop did. Most importantly, the decisionmakers who disciplined Waldrop differed from those who were charged

with deciding what action to take against Burks. Waldrop was

terminated by Spann and Phillips, while the decision to demote

Burks was taken by the current president of the Lending Company,

G.G. Hargon, in 1996. As a final point, there is even evidence

that Waldrop was treated better than Burks. Waldrop was given19

several chances to correct his behavior, including a paid leave of

absence, after which he was allowed to return to his manager

position. Burks, however, was never given the opportunity to

return to his supervisor’s position a fter his demotion. The

circumstances surrounding the disciplining of Burks and Waldrop

thus fell short of “nearly identical,” and reasonable jurors could

not have justifiably believed otherwise.

4. Building a File

To show that United Companies’ stated reasons for firing

them were false, Wyvill and Waldrop alleged that United Companies

management ordered supervisors to “build a file” on older workers.

According to the plaintiffs, these files, documenting an employee’s

misdeeds and shortcomings, were used as a fig-leaf to cover any

illeg al employment actions taken against the employee. As proof

that such files were “built” -- that is, created to provide cover

for age-motivated terminations and not in the regular course of

bus iness -- plaintiffs alleged that United Companies supervisors

violated their own st andard employee disciplinary procedures in

order to make sure the files contained as much damaging information

as possible.

Assuming that United Companies did not follow stand ard

procedures in compiling disciplinary records on Wyvill and Waldrop,

this Court has previously observed that20 [p]roof that an employer did not follow

correct or standard procedures in the

termination or demotion of an employee may

well serve as the basis for a wrongful

discharge action under state law. As we have

stated, however, the ADEA wa s not created to

redress wrongful discharge simply because the

te rminated worker was over the age of forty.

A discharge may well be unfair or even

unlawful and yet not be evidence of age bias

under the ADEA. To make out an ADEA claim,

the plaintiff must establish some nexus

between the employment actions taken by the

employer and the employee’s age. [A] bald

assertion that one exists . . . simply will

not suffice.

Moore v. Eli Lilly & Co.

, 990 F.2d 812, 819 (5th Cir. 1993), citing

Bienkowski v. American Airlines, Inc.

, 851 F.2d 1503, 1508 n. 6

(5th Cir. 1988). Here, plaintiffs put forth no evidence that would

creat e a nexus between United Companies’s file-building and the

plaintiffs’ ages. There was no evidence, for example, that United

Companies kept files only on older workers, or that it complied

with standard disciplinary procedures when filing report s on

younger workers but flouted them when it came to Wyvill and

Waldrop. Nor was there evidence that United Companies faithfully

recorded the disciplinary violations of younger workers but

fabricated t hose which, according to United Companies, motivated

the terminations of Wyvill and Waldrop. The act of maintaining

disciplinary files on employees, without more, is not illegal under

the ADEA. In the absence of any nexus between plaintiffs’

allegation of file-building and their ages, such assertions are21

insufficient to create an inference that plaintiffs were fired on

account of age.

5. Additional Evidence of Age Discrimination

The remaining evidence introduced by plaintiffs might

have been sufficient to cast doubt on United Companies’ proffered

explanations for plaintiffs’ discharges, but it did nothing to

raise an inference that the real reasons for the discharges were

related to age. Plaintiffs put on extensive evidence that they

were well-qu alified for their respective jobs and that they had

achieved considerable success. Waldrop introduced testimony that

Brantley, his supervisor, was difficult to work for and largely to

blame for his employment problems. Wyvill introduced evidence that

he was put up to his unauthorized phone calls by the CEO’s son,

Terrell Brown, Jr. But even assuming the truth of these

allegations, they allow at best an inference that United Companies’

proffered explanations for t he discharges were false. This

evidence notably fails to connect the plaintiffs’ discharges to the

their ages, and it therefore does not permit an inference that age

was a motivating factor in the terminations.

I n sum, neither Wyvill nor Waldrop produced sufficien t

evidence to allow a reasonable jury to infer that United Companies

terminated them because of age. In W eisgram v. Marley Co.

, -- U.S.

--, 120 S.Ct. 1011 (2000), the Supreme Court affirmed the authority

of courts of appeals to direct the entry of judgment as a matter of22

law in cases where, once erroneously admitted evidence is removed

from consideration, there remains insufficient evidence to support

the jury’s verdict. W eisgram

, 120 S.Ct. at 1022. Accordingly,

finding that the properly admitted ev idence in this case was

insufficient to support the jury’s verdict in favor of plaintiffs,

we vacate the district court’s judgment and remand for entry of

judgment in favor of United Companies.

III. CONCLUSION

For the foregoing reasons, the district court’s

judgment is VACATED and REMANDED for the entry of judgment as a

matter of law in favor of United Companies.