* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 29 U.S.C. § 621 et seq.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No. 00-30044

(Summary Calendar)

_______________________________________

JEANETTE R. KASS, Plaintiff-Appellant,

versus

ALBEMARLE CORP., Defendant-Appellee.

_________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(97-CV-836-A)

_________________________________________________

June 7, 2000

Before POLITZ, SMITH, and WIENER, Circuit Judges.

Per Curiam*

In this case arising under the Age Discrimination in

Employment Act (“ADEA”),1 Plaintiff-Appellant Jeanette R. Kass

appeals the district court’s grant of summary judgment to

Defendant-Appellee Albemarle Corp. (“Albemarle”), on the basis that

Kass failed to raise a genuine issue of material fact that

Albemarle terminated her from employment because of age.
2 See EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181

(5th Cir. 1996) (noting that reduction in force is a legitimate,

non-discriminatory reason for discharge).

3 Grimes v. Texas Dept. of Mental Health and Mental

Retardation, 102 F.3d 137, 141 (5th Cir. 1996).

2

Albemarle’s proffered legitimate, non-discriminatory reason

for terminating Kass, who was 58 years old at the time of the

discharge, was that, as a part of an overall reduction in force,

Kass’s position as the lowest-ranked customer service

representative was being eliminated or consolidated with other

positions.2 The district court held that (1) Kass failed to

establish a prima facie case of age discrimination and that (2)

even if she could, she failed to show that the employer’s proffered

reason was pretextual. For essentially the same reasons as the

district court, we affirm and write separately only to emphasize

that an ADEA plaintiff’s burden on summary judgment to demonstrate

a genuine question of material fact regarding pretext requires not

just evidence on which a jury could infer that the proffered reason

was false but also evidence that age was the real reason.3

As an at-will employee, Kass could be fired for a good reason,

a bad reason, or no reason at all, as long as that reason was not

because of age – the only type of discrimination she alleged. Kass

suggests that various business documents, practices, or statements

demonstrate dishonesty, withholding of information, or improper

motive by Albemarle. Viewing such evidence in the light most

favorable to Kass as the summary judgment non-movant, we conclude
3

that it fails to provide a basis on which a reasonable jury could

find that age – as opposed to any other possible motivation (good,

bad, or otherwise) – was the “real” reason for her termination.

The evidence on which Kass relies – (1) the confidential “ordinal”

performance ranking of employees of which Kass was unaware and in

which she was ranked last, (2) the suspension of postings of job

vacancies during the reduction in force, (3) Ablemarle’s alleged

attempt during discovery to distinguish (in the face of business

record indicating no actual distinction) between “downsizing” and

“reduction in force,” and (4) the list indicating that Kass was

among the group of employees whose separation was not a result of

sale of the Olefins portion of the business – even if sufficient to

raise an eyebrow about the employer’s “true” motive in terminating

Kass, suggests absolutely no basis for inferring that Albemarle’s

“true” motive was, in fact, age discrimination.

Moreover, Kass’s arguments that (1) she was the oldest, and

therefore, most qualified worker in her position, and (2) she

received positive work evaluations in the past, were also

insufficient to create a question of discriminatory intent.

Although somewhat more probative, Kass’s reliance on statistical

evidence of the number of workers over the age of 40 terminated (in

which her total “count” is higher than Ablemarle’s, because of a

dispute regarding whether employees who accepted the voluntary,

early retirement option should be included) does not preclude

summary judgment. In the face of the employer’s articulation of a
4 See Walther v. Lone Star Gas Co., 977 F.2d 161, 162 (5th

Cir. 1992) (per curiam) (on denial of petition for rehearing)

(“[P]roof of pretext, hence of discriminatory intent, by statistics

alone would be a challenging endeavor.”).

4

legitimate, non-discriminatory reason for the termination, such

statistical evidence is insufficient to allow a trier of fact to

infer discriminatory motive in an individual disparate treatment

case.4

Based on our de novo review of the district court’s rulings,

in light of the record and the arguments advanced in the appellate

briefs of counsel, we conclude that the grant of summary judgment

to Albemarle should be

AFFIRMED.