1 See 29 U.S.C. § 621 et seq. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-1770

_____________________________

JIMMY G. MOORE,

Plaintiff-Appellant,

versus

ELI LILLY & CO.,

Defendant-Appellee.

_________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________

(April 30, 1993)

Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

In this ap peal of an age discrimination case, 1 PlaintiffAppellant Jimmy G. Moore asserts that the district court erred in

granting summary judgment in favor of Defendant-Appellee Eli Lilly

& Co. (Lilly). Moore argues that the district court improperly

imposed a "pretext burden" on him, and that there were genuine

issues of material facts concerning whether Lilly ' s proffered

reason for dismissing him was pretextual. Our plenary review of

the s ummary judgment evidence places us in agreement with the

district court's grant of summary judgment in favor of Lilly, so we

affirm.2 See 21 U.S.C. § 353.

2 I

FACTS AND PROCEDURAL HISTORY

Moore worked for Lilly for over thirty years. None disputes

that during his time with Lilly, Moore had always been a

satisfactory salesman. His employment was terminated by Lilly in

October 1990, however, for "falsifying sample records." At the

time of his discharge, Moore was fifty-nine years old.

Lilly, in compliance with the Prescription Drug Marketing Act

of 1987, 2 operated a system to track the drug samples distributed

to physicians by salespersons. Under Lilly's system, all

salespersons were required to send "call cards" to Lilly each day,

reporting the day's distributions of samples to doctors. Each

salesperson's daily reports were checked against an inventory of

his or her sa mples conducted at the end of each quarter. If the

results of the inventory revealed a discrepancy w ith totals from

the salesperson's call cards, he or she was considered to be "out

o f balance," and the disparity would have to be reconciled. A

salesperson's inability to reconcile a discrepancy could result in

his or her 1) b eing required to submit daily logs, or 2) being

terminated.

Moore was out of balance for the second quarter of 1990.

After discussing the discrepancy with Kathy Hagerman, who worked in

Lilly's "sample accountability department," Moore sent a letter to

that department requesting that his records be altered to reflect

a different distribution of samples. The purpose of this letter3 The discrepancy involved samples of two types of

medication: "Axid 150" and "Axid 300." In his letter to the

sample accountability department, Moore stated that, although his

original reports had reflected that he had distributed Axid 150,

he had actually distributed Axid 300. Hagerman later discovered

that during the time relevant to the letter, Moore did not have a

sufficient quantity of Axid 300 to make the distribution, which

was set forth in the letter, possible.

4 These executives were Thomas Coyne, Director of Personnel,

and Dick Wojcik, a Vice-President.

3 was to correct the discrepancy. It was later discovered that the

modified record of samples distribution, as reflected in the letter

Moore sent to the sample accountability department, could not have

been correct; Moor e apparently never had on hand a sufficient

supply of samples to make possible the distributions that his

l etter asserted he had made. 3 Hagerman informed Moore that the

distribution set forth in the letter was not possible in view of

the stock he had possessed during the relevant time. In response,

Moore requested that Hagerman return his letter, but she refused.

Lilly terminated Moore's employment, believing that this incident

constituted a falsification of company records.

On October, 12, 1990, Moore met with his supervisor, Charles

Yelverton. He informed Moore that his termination was based on

falsification of the sample records. After Moore wrote to Lilly's

Board chairman complaining about the termination, two Lilly

executives went to Dallas and met with Moore. 4 As a result of that

meeting, Moor e's termination date was modified to reflect an

effective termination date of December 31, 1990.

Moore filed an age discrimination charge against Lilly with

the EEOC. Before any resolution was made of that charge, though,5 Walker v. Sears, Roebuck & Co. , 853 F.2d 355, 358 (5th

Cir. 1988).

6 477 U.S. 242 (1986).

7 477 U.S. 317 (1986).

8 475 U.S. 574 (1986).

4 Moo re brought the instant action in the district court. In its

opinion, the district court assumed that Moore had made out a prima

facie case. In response, Lilly asserted a non-discriminatory basis

for the termina tion ) ) i.e., the falsification of sample

records )) which the court found to be legitimate. Subsequently, the

district court granted summary judgment in favor of Lilly, finding

that Moore had failed to present any evidence to demonstrate that

the legitimate, non-discriminatory reason articulated by Lilly was

pretextual. Moore timely appealed.

II

ANALYSIS

A. Standard of Review

It is well established that, on appeal from a district court's

grant of summary judgment, we review the record "under the same

standards which guided th e district court." 5 The standards we

apply are set out in the Supreme Cour t trilogy of A nderson v.

Li berty Lobby, Inc.

, 6 Celotex Corp. v. Catrett

, 7 and Matsushita

Electric Industrial Co. v. Zenith Radio Corp. 8 Summary judgment is

proper when no issue of material fact exists and the moving party9 F ED

. R. C IV

. P. 56(c); see Celotex , 477 U.S. at 323-25.

10 Walker , 853 F.2d at 358.

11 Hanchey v. Energas Co. , 925 F.2d 96, 97 (5th Cir. 1990).

12 Bienkowski v. American Airlines, Inc. , 851 F.2d 1503,

1504-05 (5th Cir. 1988).

5 is entitled to judgment as a matt er of law. 9 In determining

whether summary judgment was proper, all fact questions are viewed

i n the light most favorable to the non-movant. Questions of law

are reviewed, as they are in other contexts, de novo. 10

B. Shifting Burdens in ADEA Claims

The litany of cases in this court establishing the alternating

burdens to be carried by the parties to an age discrimination case,

like the litany of those creating our standard of review for grants

of summary judgment, is a long and well established one. As there

is no direct evidence of age discrimination in the instant case, "a

three step analysis applies." 11 In the first step, the plaintiff

must prove a prima facie case by demonstrating that he or she was

(1) discharged; (2) qualified for the position; (3) within the

protected age cla ss )) o ver 40 )) at the time of discharge; and (4)

replaced by someone outside of the protected age class )) under 40 )) or

was otherwise discharged because of his or her age. 12

By proving a prima facie case, the employee establishes a

rebuttable presumption that the employer unlawfully discriminated

against the employee. The employer may then negate this

presumption by articulating a legitimate, non-discriminatory reason13 Normand v. Research Inst. of Am., Inc. , 927 F.2d 857, 859

(5th Cir. 1991) (citing Thornbrough v. Columbus & Greenville R.R.

Co. , 760 F.2d 633, 646 (5th Cir. 1985), which cited Texas Dep't

of Community Affairs v. Burdine , 450 U.S. at 248, 253-55 (1981)).

14 Id . (quoting Elliot v. Group Medical & Surgical Servs.

, 714 F.2d 556, 566 (5th Cir. 1983), cert. denied , 467 U.S. 1215

(1984)).

15 Hanchey , 925 F.2d at 98.

16 See F ED

. R. C IV

. P. 52(a).

17 Bienkowski , 851 F.2d at 1508 n.6 (rejecting the Third

Circuit's standard as discussed in Chippollini v. Spencer Gifts

, 814 F.2d 893 (3d Cir.1987)).

6 for its action. If the employer articulates such a reason, and on

summary judgment produces sufficient evidence to support the reason

thus articulat ed, "the burden reverts to the plaintiff to prove

that the employer's reason[] [is] pretextual." 13 "The plaintiff can

show pretext by introducing evidence which proves that the reason

stated by the employer, 'though facially adequate, was untrue as a

matter of fact or was, although true, a mere cover or pretext' for

illegal discrimination." 14 Stated another way, the plaintiff may

prove pretext by "either showing that a discriminatory reason

motivated the defendant or by showing that the proffered reason is

unworthy of credence." 15

To overcome a motion for summary judgment, of course, the

plaintiff need only produce evidence to create a genuine issue of

material fact concerning pretext. 16 It is clear, however, that the

plaintiff's summa ry judgment proof must consist of more than "a

mere refutation of the employer's legitimate nondiscriminatory

reason." 17 To demonstrate pretext, the plaintiff must do more than18 Hanchey , 925 F.2d at 99.

19 Bienkowski , 851 F.2d at 1508 n.6 (citing White v.

Vathally , 732 F.2d 1037 (1st Cir. 1984)).

7 "cast doubt on whether [the employer] had just cause for its

decision"; he or she must "show that a reasonable factfinder could

conclude that [the employer's] reason[] [is] unwo rthy of

credence." 18 Specifically, "[t]here must be some proof that age

motivated the employer's actio n, otherwise the law has been

converted from one preventing discrimination because of age to one

ensuring dismissals only for just cause to all people over 40." 19

C. Moore's Claim of Age Discrimination

The district court assumed that Moore had established a prima

facie case of age discrimination. As Lilly does not contest this

point on appeal, and all of the elements are clearly met, we make

the same assumption.

Lilly asserted as its legitimate, non-discriminatory reason

for Moore's termination that he was discharged because he falsified

the records discussed above. In support of this contention, Lilly

presented considerable deposition testimony by Moore and others.

I t is clear to us, as it was to the district court, t hat the

cognizant executives of Lilly could have reasonably believed that

Moore requested the alteration of his sample distribution records

without verifying what he had distributed to the doctors. When he

was informed of the impo ssibility of the distribution under the

alteration that he had requested in his letter, he immediately20 Hanchey , 925 F.2d at 98.

8

asked that the letter be returned to him. From these actions Lilly

could have reasonably inferre d that Moore had something to hide,

namely, his falsification of the drug sample records. Such a

reasonable belief by Lilly is undeniably a legit imate, nondiscrimin atory reason for its termination of Moore's employment.

The fact that the employers' reasonable belief eventually proves to

have been incorrect )) if, for example, Moore were eventually to be

vindicated from the charges of falsifying records )) would not change

the conclusion that the firing had been non-dis criminatory. To

survive summary judgment, therefo re, Moore had the burden of

producing some evidence that Lilly's proffered explanation is mere

pretext. In the language of Hanchey , Moore had to "carr[y] [his]

burden of showing a genuine issue of fact regarding the pretext

issue." 20 Our review of the summary judgment evidence satisfies us

that Moore simply failed to meet this burden.

Moore misapprehends the burden shifting process. At times, he

even appears to argue that h e has no pretext burden at all. He

co mplains that the trial court improperly ruled that his "prima

facie proof was not itself suffic ient to raise a ny inference

whatsoever that Moore's age was the motive." Moore thus

demonstrates his belief that his prima facie case is sufficient to

meet his second evidentiary burden of demonstrating a genuine issue

of material fact regarding pretext in order to defeat Lilly's

summary judgment motion. This belief in turn demonstrates Moore's

failure to grasp fundamental principles of this area of law.21 970 F.2d 487 (8th Cir. 1992).

22 See id . at 492.

23 Id . at 492.

9 Moore cites, inter alia, an Eighth Circuit case, Hicks v. St.

Mary's Honor Center

, 21 for the proposition that "after 'pretext' has

been established," the prima facie case can have an impact on the

case in favor of the plaintiff. We agree with our Eighth Ciruit

colleagues that if a plaintiff is able to demonstrate that the

employer's facially legitimate, non-discriminatory reason for its

action is pretext, the inference created by the prima facie case

could well be the basis for a favorable verdict for the plaintiff.

The pla intiff need not necessarily respond to defendant's nondiscriminatory reason if (but only if) plaintiff anticipatorily

d emonstrated in his or her prima facie case that the reaso n was

pretext. 22 In H icks

, for example, the plaintiff had "proved all of

defendants' proffered reasons for adverse employment actions to be

pretextual." Following the plaintiffs' discrediting of all of the

defendants's proffered reasons for their actions,

defendants were in a position of having offered no

l egitmate reasons for their actions. In other words,

defenda nts were in no better position than if they had

remained silent, offering no rebuttal to an established

inference that they had unlawfully discriminated against

plaintiff on [an illegal basis]. 23

Moore's problem, however, is his total failure to produce any

evidence of pretext, either in connection with establishing his

prima facie case or subsequently in respons e to Lilly's

demonstration of a non-discrimi natory reason for its action. He24 In his brief to this court, Moore argues that "footnote 6

[of the Bienkowski opinion] cannot be read to establish a new

'pretext burden.'" Moore goes on to state that such a burden

cannot "be harmonized with Burdine , other Fifth Circuit cases,

and the views of other [c]ircuits," and he implies that such a

burden would make victory impossible for an ADEA plaintiff.

In the hope of forestalling the unnecessary expenditure of

plaintiffs' funds and judicial resources through the filing of

flawed age discrimination cases, we have reviewed exhaustively

this circuit's published opinions in ADEA cases that are the

progeny (since 1988) of Green

, Burdine

, Thornbrough , or

Bienkowski . Our review shows that when an ADEA plaintiff can

produce valid evidence of pretext after the employer has

proffered a legitimate, non-discriminatory explanation for its

action, the plaintiff can succeed. See Ramirez v. Allright

Parking El Paso, Inc. , 970 F.2d 1372, 1377 (5th Cir. 1992); Lloyd

v. Georgia Gulf Corp. , 961 F.2d 1190, 1194,95 (5th Cir. 1992);

Walther v. Lone Star Gas Co. , 952 F.2d 119, 122-24 (5th Cir.

1992); Wilson v. Monarch Paper Co. , 939 F.2d 1138, 1146-47 (5th

Cir. 1991); Normand Research Inst. of Am., Inc. , 927 F.2d 857,

862-64 (5th Cir. 1991); Young v. City of Houston , 906 F.2d 177,

182 (5th Cir. 1990); Deloach v. Delchamps, Inc. , 897 F.2d 815,

818-19 (5th Cir. 1990); Burns v. Texas City Refining, Inc. , 890

F.2d 747, 749-51 (5th Cir. 1989); Hansard v. Pepsi Cola Metro

Bottling Co. , 865 F.2d 1461, 1465-66 (5th Cir 1989); Uffelman v.

Lone Star Steel Co. , 863 F.2d 404, 407-08 (5th Cir. 1989). In a

smaller but significant number of cases, to which the instant

case may be added, ADEA plaintiffs who fail to meet their burden

to produce some valid evidence of pretext are unsuccessful. See

Waggoner v. City of Garland , __ F.2d __, 1993 WL 81530 (5th

Cir.)(affirming the grant of summary judgment in favor of

defendant); Guthrie v. Tifco Indus. , 941 F.2d 374, 378 (5th Cir.

1991)(same); Amburgey v. Corhart Refractories Corp. , 936 F.2d

805, 813-14 (5th Cir. 1991)(same); Hanchey v. Energas Co. , 925

F.2d 96, 98-99 (5th Cir. 1990)(same); Little v. Republic Refining

Co. , 924 F.2d 93, 96-98 (5th Cir. 1991)(affirming grant of JNOV

in favor of defendant); Molnar v. Ebasco Constructors, Inc. , 986

F.2d 115, 1993 WL 59042, *3 (5th Cir.)(reversing jury verdict

that had been rendered in favor of plaintiff); Laurence v.

Chevron, U.S.A., Inc. , 885 F.2d 280, 284-85 (5th Cir.

1989)(same). A fair reading of the latter set of cases reveals

10 protests that the district court imposed on him a new "pretext

burden" which the court plucked from the wording of our Hanchey

opinion. Not so. The district court was merely requiring Moore to

do what all of the relevant case law demands that he do: produce

some evidence of pretext. 24that the most prevalent flaw in the losing plaintiffs' evidence

is the absence of proof of nexus between the firing (or failure

to promote) and the allegedly discriminatory acts of the

employer. In our survey, we found only two ADEA cases in which

the plaintiff failed to produce evidence sufficient to make out a

prima facie case. See Fields v. J.C. Penny Co. , 968 F.2d 533,

536 (5th Cir. 1992); Crum v. American Airlines, Inc. , 946 F.2d

423, 428-29 (5th Cir. 1991).

25 See supra notes 14-15 and accompanying text.

11 Moore attempts, in two assertions, to produce satisfa ctory

evidence that Lilly's reason for his termination was pretext:

(1) that a series of comments made by his supervisor, Yelverton,

demonstrated discriminatory intent in connection with Moore's

termination, and (2) that certain irregularities in the procedures

followed by L illy in connection with Moore's termination

demonstrate discriminatory intent. As we shall explain, however,

none of Moore's evidence establishes a sufficient nexus between his

age and his termination to create a genuine issue of material fact

concerning pretext. It cannot therefore defeat Lilly's motion for

summary judgment.

1. Yelverton's Comments

Moore asserts that a number of comments made by his supervisor

demonstrates that he had a bias against older workers in general,

and Moore in particul ar. Phrased in the vernacular of our prior

opinions, Moore is asserting that even if Lilly's stated reason is

facially valid, it is "a mere cover or pretext for illegal

discrimination" )) i .e., that "a discriminatory reason motivated

[Lilly]." 25 Moore submits that his termination was a product of the26 The former supervisor stated in a deposition that

Yelverton specifically asked about Moore's retirement plans when

he learned of Moore's age.

27 In Burns v. Texas City Refining , 890 F.2d at 750-51, we

found that the plaintiff had demonstrated pretext, and one part

of his proffered evidence consisted of a supervisor's inquiry

concerning plaintiff's age. In Burns , however, the inquiry,

which itself did not demonstrate discriminatory animus, was

accompanied by the fact that the supervisor knew of savings in

pension payments that could be realized if older workers were

dismissed, and that specific efforts had been made to induce

Burns to leave before his termination. See id . In the instant

case, however, there is nothing more than an inquiry by a new

supervisor concerning the age of his workforce. We cannot infer

discriminatory animus from that inquiry.

12 discriminatory intent evidenced by Yelverton's remarks and was not

a product of the drug record falsification reason given by Lilly.

Not only do the statements that Moore attributes to Yelverton fail

directly to refute Lilly's explanatio n of Moore's termination as

pretextual, they fail to demonstrate discriminatory intent vel non

.

Moore asserts that when Yelverton learned that he was going to

become the supervisor of the divi sion in which Moore worked,

Yelverton asked the outgoing supervisor a series of questions

concerning the ages of the current employees and whether any of the

older employees planned to retire soon. 26 These questions, however,

cannot be said to represent, as Moore asserts, a discriminatory

intent by Yelverton. Without more, they merely demonstrate a new

supervisor's reasonable inquiries about the ages of the members of

his work force and their known plans for the future )) facts on which

to guage the anticipated longevity of his crew. 27

The other set of statements that Moore proffers as proof of

discriminatory intent concerning his termination are two more28 Specifically, when Yelverton and Moore were in a restroom

at the same time, Yelverton stated that Moore "had a strong

stream for an old man." Although this comment demonstrates that

Yelverton might have been less than genteel at times, it fails to

demonstrate discriminatory animus.

29 Moore also insists that "a substantial raise was in the

works [for him] and . . . that this led to Yelverton's sense of

urgency in terminating him." Assuming that this is true, we fail

to see any relation whatsoever to Moore's age.

13 Yelverton remarks that simply do not have any negative implications

about Moore or his age. The first was a comment made by Yelverton

when the he and Moore were on a sales call together. Yelverton

stated that if he were in Moore's position he would be out seeing

the world. Such musings about eventual retirement simply do not

evidence discriminatory intent. Neither do tasteless but innocuous

"pottie humor" comments, such as one made by Yelverton to Moore. 28

Moore adds that he was told by other Lilly supervisors not to

recommend people over thirty-five years of age for ne w sales

positions. The implication of that advice ) ) that Lilly wanted to

make training investments in employees of an age that would predict

long range employment )) is not indicative of age bias and certainly

did not affect Moore, who long before had been hired as a salesman.

Moore also stated in a deposition that he was the oldest man in the

district office. But again, the fact that the oldest employee in

the district was term inated simply does not demonstrate that the

facially age-neutral reason Lilly offered for that termination was

pretextual. 29

2. The Circumstances of Moore's Termination

Moore next claims that "the pretextual nature of Lilly's30 See supra notes 14-15, 23 and accompanying text.

14 alleged reason for termination is obvious" from the facts

surrounding his termination. With this argument, Moore continues

his attempt to create a genuine issue of material fact regarding

Lilly's stated reason, insisting that it is "a mere cover or

pretext for illegal discrimination" or that "a discrimina t ory

reason motivated [Lilly]." 30

Moore argues that six f acts surrounding his termination

(noting that "the list could ea sily be continued") demonstrate

Lilly's discriminatory intent. These facts, which for purposes of

this review we assume to be true, are: (1) th at Lilly has told

inconsistent stories concerning the termination; (2) that Moore was

terminated for "falsifyin g records" before Yelverton knew the

elements of the offense; (3) that Y elverton varied Lilly's

discharge procedures and disobeyed orders from his supervisors in

deciding to termi nate Moore; (4) that "Moore was terminated for

attempting to correct a situation caused by s omeone else's

mistake"; (5) that the sample accountability department only placed

him on the daily log (a lesse r penalty) but Yelverton decided to

terminate him; and (6) that Yelverton "shot first and asked

questions later" )) making his inq uiry only after he terminated

Moore. Concerning these six assertions, the district court stated:

"While these conflicting accounts indicate a factual dispute as to

exactly how Moore was terminated, their existence does not provide

direct (or even indirect) proof that he was fired because of age ."

We agree.31 See Bienkowski , 851 F.2d at 1508 n.6.

15 Proof 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 was not create d to redress

wrongful discharge simply because the terminated worker is was over

the age of forty. 31 A discharge may well be unfair or even unlawful

yet not be evidence of age bias unde r the ADEA. To make out an

ADEA claim, the plaintiff must establish the existence of discrete

facts that show some nexus between the employment actions taken by

the employer and the employee's age. Here, there is no

demonstrated connection other than Moore's bald assertion that one

exists. That simply will not suffice.

III

CONCLUSION

Moore , like so many other ADEA claimants before him, has

failed to produce summary judgment evidence capable of showing the

existence of a genuine issue of material fact on the pretext issue.

Agreeing with the district court's well-reasoned opini o n that

explain the court's grant of Lilly's motion for summary judgment,

we

AFFIRM.