1 29 U.S.C. § 621 et seq. United States Court of Appeals,

Fifth Circuit.

No. 92-1650

Summary Calendar.

Ann Marie LINDSEY, Plaintiff-Appellant,

v.

PRIVE CORPORATION, d/b/a Cabaret Royale, Defendant-Appellee.

Linda YORK, Plaintiff-Appellant,

v.

PRIVE CORPORATION, d/b/a Cabaret Royale, Defendant-Appellee.

April 7, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, JOLLY and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

Ann Marie Lindsey and Linda York a ppeal adverse summary judgment on their age

discrimination claims against their former employer, Prive Corporati on d/b/a Cabaret Royale. For

the reasons assigned we vacate and remand.

Background

Lindsey and York were employed as head waitresses shortly after the opening of the Cabaret

Royale in Dallas. The Cabaret Royale bills itself as an upscale gentlemen's club, boasting of providing

the finest service, atmosphere, and entertai nment. Its facilities include a gourmet restaurant,

conference room with office services, a boutique, wide-screen viewing of sports events, and topless

dancing.

Lindsey invoked the Age Discrimination in Employment Act, 1 claimin g a constructi ve

discharge as a head waitress and an unlawful denial of a promotion to position of entertainer,

specifically a topless dancer. York claims an unlawful discharge as a head waitress.2 According to Lindsey's deposition, Paul told her:

It was something like, Ami, I know the kind of person you are and I know you

want me to shoot from the hip. And I said, yes. And he said, you undoubtedly

have the best chest of any waitress on the floor, but Cabaret patterns itself after

Rick's in Houston and the young waitresses are the future dancers ... at Rick's and

will be here at Cabaret and then he stuttered and hesitated. And I said, so what are

you saying? And he said, Ami, you are too old. Lindsey was hired in January 1989. Two months later she sought promotion to dancer. She

spo ke with one of the managers and that same evening she was summoned into the office of the

general manager, Brian Paul, and told that she was "too old" to be a dancer. 2 York was present at

the time. In ensuing weeks several younger waitresses were prom oted to dancer. Finally, on May

8, 1989, Lindsey resigned and immed i ately became employed as a dancer at the Millio n Dollar

Saloon. Caberet Royale contends that Lindsey was not qualified to be one of its dancers because she

f ailed t o meet its attractiveness standard, specifically, she was not "beautiful, gorgeous, and

sophisticated."

York also began working as a waitress in January 1989. On May 8, 1989 she left work

around 1:30 a.m. claiming to be ill. As she left she saw a regular customer, Kevin Hale, waiting for

a cab and she gave him a ride home. When she returned to work two days later she was informed

that she was fired. She maintains that no reasons were assigned for her dismissal. Cabaret Royale

responds that she was terminated because she violated the club's prohibition against leavi ng with

customers. York counters that younger waitresses were not disciplined for the identical behavior.

B oth Lindsey and York were over forty years old at the time of the adverse employ ment

decisio ns. The summary judgment record reflects that the Cabaret employed only one other

non-management female over age forty, Joy Tarver, a dancer who also was terminated at the same

time.

The district court granted defendant's motion for summary judgment, concluding that neither

Lindsey nor York had established a prima facie case of age discrimination. Alternatively, the district

court found that there were no genuine issues of material fact and that the defendant was entitled to

judgment as a matter of law. Lindsey and York timely appealed.3 Latimer v. Smithkline & French Laboratories, 919 F.2d 301 (5th Cir.1990).

4 Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

5 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1981). Although McDonnell Douglas was a Title VII case, this approach has been applied in ADEA cases. Thornbrough v. Columbus &

Greenville R. Co., 760 F.2d 633, 638-39 n. 4 (5th Cir.1985).

6 Bienkow ski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir.1988).

7 Id.

8 Id. Analysis

When reviewing a summary judgment we apply the same standard as the di stri ct court. 3

Under Fed.R.Civ.P. 56(c), a summary judgment is appropriate when the evidence, viewed in the light

most favorable to the nonmovant, reflects no genuine issues of material fact. 4

A plaint iff may establish a claim o f employment discrimination by the triad analysis first

enunciated in McDonnell Douglas Corp. v. Green. 5 The ADEA plaintiff must first establish a p rima

facie case of age discrimination, 6 a ft er which t he defendant is given an opportunity to articulate a

legitimate, nondiscriminatory reason fo r it s disparate treatment of the plaintiff. If the defendant

successfully does so, the plaint iff bears the burden of demonstrating that the reason was pretextual.

The ultimate burden of persuasion remains with the plaintiff. 7

Lindsey

The district court found that Lindsey failed to present a prima facie case of discrimination

because she failed to demonstrate that she was qualified to be a dancer. Generally, a p rima facie

ADEA case of failure to hire or promote consists of evidence that the plaint iff: (1) was within the

pro t ected class and was adversely affected; (2) was qualified for the position; and (3) the job

remained open or was filled by someone younger. 8 The district court accepted the Cabaret Royale's

contention that to be qualified, dancers must be "beautiful, gorgeous, and sophisticated," and that the

club found Lindsey did not meet this standard. Lindsey contends that the district court erred in

requiring her to prove as part of her prima facie case that she met the club's subjective criteria. We9 Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132 (7th Cir.1985); Burrus v. United

Telephone Co. of Kansas, Inc., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct.

491, 74 L.Ed.2d 633 (1982); Lynn v. Regents of the University of California, 656 F.2d 1337

(9th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982).

10 683 F.2d at 342 (quoting Lynn, 656 F.2d at 1344; further citations omitted).

11 683 F.2d at 342.

12 885 F.2d 804 (11th Cir.1989).

13 After a trial on the merits, disputes about the prima facie case fall away and we need only

resolve the question whether there was sufficient evidence of unlawful discrimination. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d

403 (1983). agree. Subjective criteria should not be considered a part of the p rima facie evaluation in a summary

judgment proceeding.

Several of our circuit colleagues have concluded that a prima facie case is established once

the plaint iff demonstrates that objective employment qualifications have been met. 9 For example, the

Tenth Circuit concluded that in the McDonnell Douglas three-step analysis:

objective job qualifications are best treated at step one and subjective criteria, along with any supporting evidence, are best treated at the later stages of the process. To do otherwi se

would in many instances collapse the three step analysis into a single init ial step at which all

issues would be resolved. This would defeat the purpose underlying the M cDonnell Douglas

process. 10

Our colleagues concluded that wherea s subj ective employment criteria may serve legitimate functions,

they also provide opportunities for unlawful discrimination. Based upon that conclusion, they held:

If a plaintiff's failure to establish that she met the employer's subjective criteria could defeat

her prima facie case, the court would then not be required to consider evidence of pretext.

Thus the use of the subjective criteria would go unchallenged. This result is clearly at odds

with the mandate of McDonnell Douglas that a plaint iff be afforded a full and fair opportuni ty to demonstrate that the stated reason for rejection was in fact pretext. 11

Cabaret Royale invites our attenti on to the E levent h Circuit decision in H ill v. Seaboard

Coast Line R. Co. 12 We find that decision inapposite for it was not in a summary judgment setting

but, rather, was after trial on the merits. 13 In ruling on a summary judgment motion it is not

appropriate for the district court to determine whether su b jective criteria are bona fide and, more14 In a motion for summary judgment, the district court is not called upon to make credibility

assessments of conflicting evidence; to the contrary, all evidence is considered in the light most

favorable to the non-movant.

15 Thornbrough, 760 F.2d at 647.

16 Craw ford v. Western Electric Co., 614 F.2d 1300 (5th Cir.1980); Row e v. General Motors

Corp., 457 F.2d 348 (5th Cir.1972).

17 614 F.2d at 1315 (citing Rowe, 457 F.2d at 358-59). critically, to make disp o sit ive determinations about the employer's credibility. 1 4 The district court

noted the difficulty it faced, a recognition which effectively ruled out the propriety of the summary

judgment mechanism. The court stated:

This court cannot second guess Defendant's opinion that Plaint iff Lindsey was not beautiful,

gorgeous, and sophisticated enough to be an entertainer at the Cabaret Royale. Beauty is in

the eye of the beholder and the beholder in this case is the management of Defend ant.

Defendant is entitled to determine who satisfies its criteria.

T hat is entirely correct, but the ultimate trier-of-fact must decide who to believe, a function n o t

performed in a summary judgment setting.

We are mindful and agree that "[t]he ADEA was not intended to be a vehicle for judicial

second-guessing of business dec isio ns, nor was it intended to transform the courts into personnel

managers." 15 In this case, however, the question left for the judge or jury will not require seco nd

guessing of the defendant's personnel decisions but, rather, will require an evaluation of the credibility

of the defendant's testimony about the reasons for that de cisio n—t he trier-of-fact will evaluate

truthfulness, not beauty. We have recognized the potential of subjective criteria to provide cover for

unlawful discrimination. 16 We have observed: "Establishing qualifications is an employer's

prerogative, but a n employer may not utilize wholly subjective standards by which to judge its

employees' qualification s and t hen plead lack of qualification when its promotion process, for

example, is challenged as discriminatory." 17

In opposition to defendant's motion Lindsey presented evidence that: (1) immediately after

leaving Cabaret Royale she secured a position as dancer with one of its com peti tors; (2) several

Cabaret Royale customers had urged her to become a dancer; (3) a former business manager of the18 Frank Casperson's affidavit attests that he was a general manager at the Cabaret Royale from

mid-December 1988 through late February 1989. He states:

[D]uring my employment at the Cabaret Royale, I was in a position to observe that

Cabaret Royale employed many entertainers (dancers), whom Salah Izzedin was

aware of and often participated in the selection of, who were not as attractive as

Ann Marie (Ami) Lindsey. Cabaret attested that it had hired many women as dancers who were not as attractive as Lindsey; 18

and (4) all three waitresses/dancers over forty were dismissed at the same time. It cannot be said that

this record poses no genuine issue of material fact nor that plaint iffs failed to establish a prima facie

case of age discrimination. Summary judgment does not lie.

York

York likewise contends that age was the dominant factor in her discharge. Cabaret Royale

contends that she was dismissed for violating the club's policy prohibiting waitresses and dancers from

leavin g t he establishment with customers. The policy obviously is designed to prevent even the

appearance that the club is facilitating prostitution. This clearly is a legitimate business reason for

discharge. Summary judgment is inappropriate, however, because the summary judgment record

contains evidence that the rule was disparately applied—younger employees left with customers and

were not similarly disciplined. Furt her, apparently the Cabaret's disciplinary policy requiring two

written warnings before discharge were ignored in York's case. Once again, a critical credibility

assessment must be made. That assessment is not fit grist for the summary judgment mill.

For the foregoing reasons we VACATE the judgments rendered and REMAND for further

proceedings consistent herewith.