1

United States Court of Appeals,

Fifth Circuit.

No. 93-3835.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant

Cross-Appellee,

v.

LOUISIANA OFFICE OF COMMUNITY SERVICES, et al., DefendantsAppellees Cross-Appellants,

Regina C. Fisher, Plaintiff-Movant-Appellant.

March 23, 1995.

Appeals from the United States District Court for the Eastern

District of Louisiana.

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC"), on

behalf of Regina Fisher, sued the Louisiana Department of Social

Services, Office of Community Services ("LOCS"), alleging that LOCS

violated the Age Discrimination in Employment Act ("ADEA"), 29

U.S.C. § 621-34, when it twice failed to promote Ms. Fisher. After

the jury returned a verdict for the EEOC, the district court

granted LOCS' motion for judgment as a matter of law. Because we

agree with the district court that the evidence is insufficient to

support the jury's verdict, we affirm.

I.

Regina Fisher worked for LOCS in various capacities for over

twenty-eight years. From 1954-1960, she worked as a caseworker in

foster care. After doing family services work in Connecticut from

1961-1965, she returned to LOCS as a foster care supervisor. In
2

1970, Fisher became a supervisor in the Adoptions Petitions Unit,

which reviewed adoption paperwork to ensure compliance with legal

requirements. When that position was eliminated in August 1988,

she became a supervisor in the Administrative Review Unit, which

monitored child welfare cases to ensure that all necessary action

had been taken in compliance with Public Law 96:272. More

specifically, the law required that certain steps be taken at

certain intervals, such as a case review every six months, and the

Administrative Review personnel made sure the required steps were

taken. Fisher had no responsibility for the quality of the work

performed. Her unit simply verified that the requisite steps were

taken and documented for the record.

In 1989, when Fisher was sixty-four-years old, LOCS decided to

replace the Administrative Review Unit with a Quality Assurance

Unit. LOCS proposed that the Quality Assurance Unit assume the

functions of the Administrative Review Unit, but that it

additionally monitor the quality of child welfare services provided

throughout the region. In other words, the Quality Assurance Unit

assumed all the duties of the Administrative Review Unit (which

were essentially administrative) and additionally evaluated whether

a particular case plan best fit the needs of the child.

In this second capacity, Quality Assurance personnel would

monitor caseworkers in three "priority" programs—Family Services,

Case Management, and Child Protection Investigation ("CPI").

Family Services provides counseling and other services to families

needing assistance but whose problems do not require removal of the
 

1The retroactive assignment occurred after Fisher was passed

over to be the Quality Assurance Unit Supervisor in November. 

3

child from the home. Case Management oversees all aspects of

foster care. CPI investigates complaints of neglect and abuse.

Caseworkers in each program work directly with children and their

families.

Due to the increased skill level required of Quality Assurance

Unit personnel, the Louisiana Department of Civil Service ("Civil

Service") determined that the Quality Assurance positions were

"new" positions, which had to be filled through a competitive

promotion process. It classified Quality Assurance caseworkers as

Social Services Specialists I ("Specialists") and supervisors as

Social Service Supervisors I ("Supervisors I").

LOCS began to fill the Specialist positions in June 1989.

During that time, Fisher remained in her former Administrative

Review position—classified as a Social Services Counselor I

("Counselor I")—even as those she supervised were being promoted to

Specialists. In December 1989, LOCS realized that under the Civil

Service rules a Counselor I cannot supervise a Specialist. To

comply with the rules, LOCS, in consultation with Civil Service,

retroactively placed Fisher on a temporary assignment from June 5,

1989 through December 17, 1989, as a Supervisor I.1

In November 1989, LOCS interviewed applicants for three

Supervisor I vacancies: one in Quality Assurance and two in Case

Management. To qualify, each eligible candidate had to take a

civil service exam. The nine applicants who received the top five
 

2The panel members were James Bordelon, Carolyn Kramer, Joe

Putnam, Freida Neville and Diane Richards. All but Kramer were

supervisors within the sub-region managed by Janice Briscoe. 

Kramer was in the sub-region managed by Danny Curtis. The

Quality Assurance position was in Curtis' sub-region, while the

other two positions were in Briscoe's sub-region. 

4

scores on the exam were then evaluated by a panel comprised of five

District Supervisors.2 Each panelist assigned a point value from

one to nine to each applicant based upon an "interview packet."

This consisted of the applicant's application form, a short

narrative written by the applicant describing the applicant's

knowledge of Child Protection and particular qualifications for the

job, a summary of the three references, and notes taken at the

interview. The panel then recommended the three applicants with

the highest composite scores to Rebecca Corbello, Regional Manager.

Ms. Corbello then approved and forwarded the recommendations to

Shirley Goodwin, Division Director of Child Welfare Field Services,

who made the final decision to promote the selectees.

The selectees were Donna Leavitt, age 52, Priscilla Brown, age

43, and Carol Mackey, age 38. Leavitt eventually filled the

Quality Assurance position, and Brown and Mackey filled the Case

Management positions. Fisher had the fourth highest score. After

she was not promoted, Fisher filed a charge with the EEOC alleging

age discrimination.

In March 1990, LOCS reconvened the panel to fill two

additional Supervisor I vacancies for CPI and Case Management, both

within Janice Briscoe's sub-region. The panel members were the

same, with the exception of Carolyn Kramer. The panel did not
 

3The record reflects some confusion over the number of slots

available. It appears that at one point LOCS contemplated

filling four positions. 

5

reinterview the applicants who had been interviewed in November;

they relied on their November interview packets. The panel

recommended the four highest scoring applicants:3 Alvia Brown,

David Zumalt, Susan Hitzman and James Mento, all of whom were

younger than Fisher. The panel also indicated which position the

selectees should fill. This time Fisher ranked eighth on the list,

scoring lower than four applicants she had outscored in November.

Goodwin eventually selected Brown and Zumalt for Case Management

and CPI, respectively.

Fisher filed another charge with the EEOC, alleging that the

second promotion denial was because of age and in retaliation for

filing the first EEOC charge. Shortly thereafter the EEOC filed

this suit alleging age discrimination and retaliation. At trial,

LOCS contended that it had not promoted Fisher because the

selectees were more qualified for the positions. The jury rendered

a verdict for the EEOC, finding that both promotion denials were

age related and that the second denial was willful but not

retaliatory. LOCS reurged its previously filed motion for judgment

as a matter of law or, in the alternative, for a new trial. The

district court granted the motion for judgment as a matter of law,

holding that the evidence was insufficient to permit a finding that

the reason proffered by LOCS for not promoting Fisher was

pretextual. The district court was therefore persuaded that the

record evidence failed to show that LOCS' personnel decision not to
6

promote Fisher was because of her age. The EEOC and Fisher

separately appeal that judgment.

II.

As an initial matter, we address LOCS' motion to dismiss

Fisher's appeal. LOCS concedes the EEOC's right to appeal, but

contests Fisher's right to appeal separately since she was not a

party to the proceedings below. A person who is not a party to the

proceedings below generally cannot appeal the court's judgment.

See EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th

Cir.), cert. denied sub nom. Keith v. EEOC, 498 U.S. 815, 111 S.Ct.

55, 112 L.Ed.2d 31 (1990). However, courts have granted exceptions

where the non-parties actually participated in the proceedings

below, the equities weigh in favor of hearing the appeal, and the

non-parties have a personal stake in the outcome. See id; see

also Binker v. Commonwealth of Pa., 977 F.2d 738 (3d Cir.1992)

(allowing non-party employees to appeal approval of settlement

agreement negotiated by EEOC where employees were involved in the

negotiations and where settlement formula was not favorable to

employees); EEOC v. West La. Health Servs., Inc., 959 F.2d 1277

(5th Cir.1992) (allowing non-party appeal where EEOC had not

pursued appeal in its representative capacity).

An exception is not warranted in this case. Fisher dismissed

her private action when the EEOC filed suit. Neither Fisher nor

her attorney pled, intervened or otherwise participated in the

proceedings below. Nor does Fisher contend that her arguments

overlap or are in tension with the EEOC's arguments. Because we
7

conclude that the EEOC adequately represented Fisher below and

continues to do so on appeal, we dismiss Fisher's appeal.

III.

A.

We review the district court's grant of judgment as a matter

of law de novo. Accordingly, we can affirm only

[i]f 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....

On the other hand, if there is substantial evidence opposed to

the motions, that is, evidence of such quality and weight that

reasonable and fair minded men in the exercise of impartial

judgment might reach different conclusions, the motion should

be denied, and the case submitted to the jury. A mere

scintilla is insufficient to present a question for the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).

In this case, we must determine whether the record contains

evidence which could lead a reasonable trier of fact to conclude

that LOCS did not promote Fisher because of age. See Molnar v.

Ebasco Constructors, Inc., 986 F.2d 115, 117 (5th Cir.1993). In

doing so, we must view the evidence in the light most favorable to

and draw all inferences in favor of the EEOC. Boeing, 411 F.2d at

374.

B.

The ADEA makes it unlawful for employers "to discharge any

individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's age." 29 U.S.C. § 623(a).

In the absence of direct proof of discrimination, the plaintiff in

an age discrimination case must follow the three-step
8

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). The plaintiff first must

establish a prima facie case of discrimination. The burden then

shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its action. If the employer does so,

the plaintiff then bears the burden of proving that the articulated

reason is untrue and was given as a pretext for discrimination.

Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.1994).

"[An employer's] reason cannot be proved to be "a pretext for

discrimination' unless it is shown both that the reason was false,

and that discrimination was the real reason." St. Mary's Honor

Ctr. v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2752, 125

L.Ed.2d 407 (1993).

The parties stipulated that the EEOC made out a prima facie

case: Fisher was over 40 years of age, was qualified for the

positions, and was older than the selectees. The parties also

stipulated that LOCS offered a nondiscriminatory reason for its

actions: Fisher was not as qualified as the applicants selected

for promotion. The critical issue for the jury was whether LOCS'

explanation was true, as it contended, or pretextual, as the EEOC

contended. As stated above, the jury resolved the question in

favor of the EEOC, but the district court granted judgment as a

matter of law to LOCS because the EEOC failed to produce sufficient

evidence to show that LOCS' explanation for not promoting Fisher
9

was false. The EEOC argues on appeal that it did produce

sufficient evidence from which a reasonable jury could infer that

LOCS' proffered explanation was pretextual. Our task therefore is

to determine whether a reasonable jury could have found that LOCS'

explanation was pretextual.

In determining whether the employer's stated reason is false,

the trier of fact may not disregard the defendant's explanation

without countervailing evidence that it was not the real reason for

the discharge. Elliott v. Group Medical & Surgical Serv., 714 F.2d

556, 562 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct.

2658, 81 L.Ed.2d 364 (1984). Evidence that the proffered reason is

unworthy of credence must be enough to support a reasonable

inference that the proffered reason is false; a mere shadow of a

doubt is insufficient. Cf. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d

538 (1986) (noting that non-moving party must show more than a

"metaphysical doubt"). After thoroughly reviewing the record, we

agree with the district court that the EEOC failed to produce

sufficient evidence to allow a jury to conclude that LOCS'

explanation was pretextual.

All panel members testified at trial that they rated the

applicants based upon each applicant's experience in the three

priority programs, qualifications, past performance, references and

interviews. They testified that they ranked Fisher as they did

because they felt that the selectees were better suited or better

qualified for the positions. Specifically, they testified that
10

Fisher, by comparison to the selectees, had less experience in the

three priority programs, did not present herself as well during the

interview process, and received more negative references from

former supervisors. LOCS emphasized that it have never contended

that Fisher was not qualified for the position nor that she was a

poor employee, but rather that out of the applicant pool, Fisher

was not as qualified as the selectees.

Every LOCS representative agreed that in evaluating the

applicants the most important factor was knowledge of the three

priority programs; more particularly, they considered recent

hands-on experience in the three priority programs to be critically

important. The panel members explained that experience in and

knowledge of the three areas was necessary because supervisors

might be transferred during their tenure from one program to

another.

Although the vacancies were supervisory positions, the

panelists testified that earlier general supervisory experience was

not a particularly important factor unless it was in a priority

program. The panel also considered the applicants' references, but

did not consider them to be an overwhelming factor. Shirley

Goodwin, Division Director, testified that the panel was instructed

to evaluate each applicant for all the vacant positions. In other

words, the panel did not evaluate applicants based on individual

qualifications for a particular vacancy. Rather, it evaluated the

applicants based on their overall qualifications for all of the

vacancies.
 

4The record reflects that Brown actually had experience in

all three priority programs, as she spent a month in Family

Services in 1987. However, this information did not appear on

the form submitted to the panel. 

11

C.

The EEOC argues first that it presented evidence that Fisher

was clearly better qualified than the selectees. A fact finder can

infer pretext if it finds that the employee was "clearly better

qualified" (as opposed to merely better or as qualified) than the

employees who are selected. See, e.g., Odom v. Frank, 3 F.3d 839,

845-46 (5th Cir.1993); Walther v. Lone Star Gas Co., 952 F.2d 119,

123 (5th Cir.1992); Thornbrough v. Columbus & Greenville R. Co.,

760 F.2d 633, 647 (5th Cir.1985).

The evidence does not support the EEOC's argument. With

respect to the November selectees, the evidence showed that Donna

Leavitt had recent experience in all three priority programs.

Leavitt's references highly recommended her as an excellent,

cooperative, committed worker who related well to clients and

co-workers. The one criticism was that she needed to work on

managing her paperwork and meeting deadlines. Every panelist gave

Leavitt the highest score.

Priscilla Brown had recent experience in two priority

programs,4 having spent the last two and a half years in Case

Management and twelve years prior to that in CPI. Her references

were also positive, emphasizing her dedication, knowledge,

experience, teamwork and organizational skills. The references

expressed concern over a speech problem, but indicated that Brown
 

5The EEOC suggests that the panel's discounting of Fisher's

priority experience because it was nineteen-years old itself

suggests age discrimination. However, the EEOC presented no

evidence indicating that LOCS' employees progressed from working

in priority programs to working in nonpriority, procedural jobs. 

In fact, after Fisher did not receive the first promotion, she

was placed in Case Management. 

12

had volunteered to undergo speech therapy and had made "tremendous"

improvements.

Carol Mackey had recent experience in two priority

programs—Case Management and Family Services. Although Mackey was

never assigned to CPI, she specialized in sexual abuse. Mackey's

references were uniformly positive, highlighting her client

relationships, team spirit, responsibility and organizational

skills.

Although Fisher also had prior experience in two priority

programs—Case Management and Family Services—she had spent the last

nineteen years in nonpriority administrative positions.5 The

narrative that she submitted to the panel confessed that she knew

little about CPI and was primarily interested in the Quality

Assurance position. Fisher's references were comparatively

negative. The most favorable reference, Carolyn Kramer,

highlighted Fisher's reliability, dedication and experience in

helping set up the Quality Assurance Unit. Another reference

referred to Fisher's "detail and procedure skills" and recommended

her for a Quality Assurance, Family Services or, possibly, Case

Management position. However, that reference noted that Fisher was

bossy and unyielding and would be too "ivory tower" for CPI. The

third reference was highly critical, stating that she would not
 

6Ms. Fisher neglected to include as a reference one of her

most recent supervisors, Cheryl Campos. Ms. Kramer noticed the

oversight and supplemented Fisher's file with Ms. Campos'

reference. Campos stated that Fisher was a good supervisor who

was very thorough and met deadlines. She especially recommended

Fisher for Quality Assurance, but noted that the demands of CPI

might be too great. 

13

promote Fisher unless she were the last person available.6

As to the March selectees, Alvia Brown had recent experience

in two priority programs—Case Management for ten years and CPI for

two years. Brown's references were uniformly positive, focusing on

her organizational skills and cooperation. David Zumalt had prior

experience in at least two priority programs, most recently in CPI

for four years. Prior to that he was in Case Management for six

years. He also had prior experience in other child welfare

organizations in areas analogous to all three priority programs.

His references were also uniformly positive, focusing on his

competence and meticulousness.

This evidence does not demonstrate that Fisher was clearly

better qualified than the applicants selected for the contested

positions. At most, a fact finder could infer that Fisher was as

qualified for the positions as the selectees. As this court

cautioned in Odom, however, the judicial system is

not as well suited by training and experience to evaluate

qualifications for high level promotion in other disciplines

as are those persons who have trained and worked for years in

that field of endeavor for which the applications under

consideration are being evaluated.

Therefore, unless disparities in curricula vitae are so

apparent as virtually to jump off the page and slap us in the

face, we judges should be reluctant to substitute our views

for those of the individuals charged with the evaluation duty

by virtue of their own years of experience and expertise in
14

the field in question.

3 F.3d at 847. Fisher's qualifications are not so superior to

those of the selectees to allow an inference of pretext.

The EEOC argues next that, even if Fisher is not clearly

better qualified than the selectees under LOCS' stated promotion

standards, those standards constitute a post-hoc rationalization

for why Fisher was not promoted. At trial, the EEOC attempted to

cast doubt on LOCS' explanation for its decision by arguing that

general supervisory and Administrative Review experience were more

relevant to the positions than priority program experience. The

record reveals that Fisher did have substantially more supervisory

and compliance experience than the selectees. But we decline to

substitute our judgment for the employer in evaluating what types

of experience are most valuable for an employee in the new position

in the absence of proof that the standards were not consistently

applied or were so irrational or idiosyncratic as to suggest a

cover-up. See Elliott, 714 F.2d at 566-67; see also Little v.

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

Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280, 285 (5th

Cir.1989); Bienkowski v. American Airlines, Inc., 851 F.2d 1503,

1507-08 (5th Cir.1988).

The EEOC offered no evidence to show that LOCS applied the

standards inconsistently or that the standards were irrational.

First, as to supervisory experience, the EEOC attempted to show

LOCS' inconsistency in applying its standards by pointing to

various references in the interview packets to the selectees'
 

7The EEOC makes much of the fact that Fisher technically

supervised Quality Assurance caseworkers for six months. 

However, it offered no evidence to refute LOCS' testimony that

the Quality Assurance program was not implemented in full until

May 1990, nor did it show that Fisher had performed any

15

supervisory experience. But this evidence reveals nothing except

that LOCS considered supervisory experience in its decision, a

point LOCS does not dispute. It does not, however, undercut LOCS'

claim that such experience was less important to the promotion

decisions than broad priority program experience. Moreover, we

cannot say that it is irrational for an employer to give less

weight to general supervisory experience than actual field

experience where field experience is relevant to the position.

Second, while Administrative Review experience would be

helpful in performing the Quality Assurance functions, such

experience would have little, if any, benefit to a person in one of

the other positions. As mentioned, the panel was instructed to

evaluate each candidate for all the positions. But even if we

consider the failure to promote Fisher to the Quality Assurance

position under LOCS' articulated standard, the decision was a

rational one. The uncontradicted evidence showed that the Quality

Assurance position required greater skills than the Administrative

Review position. Fisher's primary function in Administrative

Review was to ensure that the necessary steps were taken in each

child welfare case in compliance with Public Law 96:272 and that

this action was documented. However, the Quality Assurance Unit

also required staff to make subjective judgments about the quality

of service provided in individual cases.7 As Danny Curtis,
non-procedural duties. 

16

Assistant Regional Manager, testified at trial, Administrative

Review involved "a very simple process or procedural thing" to

ensure that the required steps were taken. According to Curtis,

Quality Assurance, in contrast,

involves a complete review of the case to determine if certain

policy issues, things that we have decided are important to be

received by the children, that we're providing these.... They

check for specific case planning and things; such as, not

only is there a case plan there, but does the case plan meet

the needs of the family.

Shirley Goodwin, Division Director, also testified that the

Quality Assurance position required a greater degree of

responsibility because of the subjective judgments the staff was

required to make. According to Ms. Goodwin, this was the main

reason that the Quality Assurance supervisor position was upgraded

to Supervisor I status. The EEOC presented no evidence to refute

this testimony. Thus, while Fisher's prior Administrative Review

experience does have some relevance to the Quality Assurance

position, it is plausible for LOCS to have concluded that training

someone in administrative compliance is easier than giving them the

experience needed to make subjective judgments in individual cases.

The EEOC argues next that the structure of the promotion

process was a sham to prevent Fisher from receiving a promotion.

To support this theory, the EEOC attempts to highlight what it

perceives as implausibilities or inconsistencies in the promotion

process. First, the EEOC contends that the decision not to hire a

person for Quality Assurance separately from the other, less
17

administrative positions suggests an intent to disadvantage Fisher.

The testimony revealed that LOCS originally planned to fill only

the Quality Assurance position. Pursuant to the Civil Service

Rules, LOCS had to obtain approval from Civil Service to fill the

position and request Civil Service to certify a list of eligible

applicants. The evidence at trial revealed that certification was

a lengthy and burdensome process. While certification was pending

for the Quality Assurance position, two other Supervisor I

positions opened. To expedite matters, LOCS sought approval to

fill all three positions from the same applicant list. The EEOC

offered no evidence to refute LOCS' explanation that this was a

simply a time-saving measure to avoid the lengthy certification

process for the other two positions.

Second, the EEOC argues that LOCS' explanation that each

selectee needed experience in all three priority programs due to

the possibility of transfer is not credible. It offered evidence

that no one had been transferred in the three and a half years

since the promotions and that the agency had a low history of

transfers. However, the fact that the likelihood of transfer was

low does not render LOCS' consideration of that possibility

implausible. Moreover, while no one was transferred in the three

years since the promotions, record evidence reveals that promotions

to higher levels of supervision can expand the job duties to

include other programs. For example, when David Zumalt replaced

Joe Putnam as a District Supervisor, his duties expanded to include

Family Services.
18

Third, the EEOC contends that the exclusion of Carolyn

Kramer, Fisher's strongest supporter in November, from the March

panel also suggests an intent to discriminate against Fisher.

However, the uncontradicted testimony, including Kramer's,

indicated that she was excluded because none of the March vacancies

were in her sub-region. Moreover, there was no evidence that

Kramer's absence would have made a difference, given the other

panelists' low ratings of Fisher.

Fourth, the EEOC argues that Fisher's drop from fourth place

in November to eighth place in March indicates that the true

motivating factor was age. However, the undisputed testimony

revealed that the March panel started with a clean slate,

evaluating each applicant anew. Quite a few scores came out

differently, with some applicants scoring higher than they did in

November, and others scoring lower. Significantly, Fisher was not

the only candidate to score lower in March than in November. Any

possible inference that can be drawn from this disparity bears, if

anything, on Fisher's retaliation claim, which the jury rejected.

Fifth, the EEOC argues that the second panel's recommendation

of four applicants instead of two casts doubt on its

nondiscriminatory explanation, because had the November panel

recommended extra applicants, Fisher would have been on the list.

The panel members testified that their decision to recommend four

people stemmed from confusion over the number of vacancies and

concern about a possible hiring freeze. The EEOC again did not

discredit this explanation nor suggest that similar considerations
19

were present in November.

Finally, the EEOC argues that the March panel's

recommendation of specific slots for the selectees casts doubt on

its claim that individual qualifications for particular positions

were not part of the ranking. The panel testified that it ranked

the applicants based on their overall qualifications and only then

suggested assignments. Again, the EEOC offered no evidence to

discredit this testimony.

LOCS offered a facially benign explanation for each of the

EEOC's arguments. Where the plaintiff has offered no evidence to

rebut the employer's facially benign explanations, no inference of

discrimination can be drawn. See Odom, 3 F.3d at 848.

IV.

In sum, we conclude that the EEOC failed to produce evidence

from which a reasonable jury could infer that the reason LOCS gave

for its decision not to promote Fisher was pretextual. It offered

no evidence that LOCS' stated reason was not the true one, such as

that younger applicants were treated differently or that the

explanation given was so implausible as to be a cover-up. Rather,

the only evidence is the EEOC's own speculation that age motivated

the decision not to promote Fisher. We have consistently held that

an employee's subjective belief of discrimination, however genuine,

cannot be the basis of judicial relief. See Portis v. First Nat'l

Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir.1994);

Elliott, 714 F.2d at 567.

The overwhelming evidence showed that LOCS did not promote
 

8In view of this decision, LOCS' cross-appeal from the

district court's denial of its motion for a new trial is moot. 

20

Fisher because it believed that she was not as qualified for the

positions as the selectees. While we or the jury might have made

a different employment decision, we should not substitute our

judgment of an employee's qualifications for the employer's in the

absence of proof that the employer's nondiscriminatory reasons are

not genuine. We are persuaded that this is precisely what the jury

did here. As this court stated in Bienkowski:

The ADEA was not intended to be a vehicle for judicial

second-guessing of employment decisions nor was it intended to

transform the courts into personnel managers. The ADEA cannot

protect older employees from erroneous or even arbitrary

personnel decisions, but only from decisions which are

unlawfully motivated.

851 F.2d at 1507-08. The district court therefore correctly

granted judgment as a matter of law in favor of LOCS.8

AFFIRMED.