* District Judge of the Eastern District of Louisiana, sitting

by designation.

** Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

1 Defe ndant was incorrectly sued as The Malphas Company;

plaintiff later amended the suit to correctly name the defendant,

The Molpas Company. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60021

JACK FAUST,

Plaintiff-Appellee,

VERSUS

THE MALPHAS COMPANY, d/b/a MIDLAND

MANAGEMENT CO., Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

(1:92-CV-166-S-D)

April 26, 1996

Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER*,

District Judge.

DUPLANTIER, District Judge:**

A jury awarded plaintiff Jack Faust, a sixty year old former

employee of defendant, $22,000 after concluding that defendant The

Molpas Company 1

, d/b/a Midland Management Co. (Midland) terminated2 Fred Wagner was not an employee; he and Ms. Martinelli

Wagner were later married. plaintiff's employment in violation of the Age Discrimina tion in

Employment Act (ADEA), 29 U.S.C. §621 et seq

. Defendant appeals

f rom the district court's denial of its motion for judgment as a

mat ter of law or alternatively for a new trial. We affirm the

judgment of the district court.

BACKGROUND

Jack Faust was employed by defendant Midland as a maintenance

m an at the Barley Court apartments in Tupelo, Mississippi

.

Defendant managed Barley Court; as a low income housing complex,

the apartments were subject to inspection by the Department of

Housing and Urban Development (HUD).

Shortly before a scheduled HUD inspection Faust injured his

back in the course of his employment, and was unable to work for

one week. Approximately one week before the inspection, plaintiff

obtained a doctor's release and returned to normal duty.

During plaintiff's absence from work, Lynn Martinelli Wagner,

the resident manager of the apartment complex and plaintiff's

immediate supervisor, requested Fred Wagner 2 to inspect a number of

the smoke alarms at the complex. Fred Wagner inspected thirtyfive alarms and reported that none of those smoke alarms were

operational. Upon plaintiff's return, Ms. Wagner asked him to

reinspect the smoke alarms which had been inspected by Fred Wagner.

Plaintiff reinspected those smoke alarms, found only six which were

not functional, and replaced the batteries in those units. Faust

explained the discrepancy between the inspection results, saying3

that "[ Fred Wagner] did not know how to check them."

The HUD inspection occurred on February 19, 1992. The HUD

inspector was accompanied by Jackie Long, a property manager with

Midland. Barley Court received an unsatisfactory inspection

report. Among the many unsatisfactory conditions cited in the HUD

inspection report were numerous inoperative or missing smoke alarms

and fire extinguishers, bug infestation, and general disrepair and

lack of maintenance on the property.

Several days after the inspection, plaintiff again experienced

back problems and was unable to work. On March 10, 1992, Jackie

Long notified Faust that he was terminated. Long told Faust that

it ha d been decided that he was responsible "for all of this bad

fire equipment."

Plaintiff filed suit against Midland, alleging violations of

the Rehabilitation Act of 1 973, 29 U.S.C. §794 e t seq

. The

complaint was amended to add a cl aim under the ADEA. At the

conclusion of the plaintiff's case-in-chief, defendant mo ved for

judgment as a matter of law on all claims. The motion was granted

only as to the claims under the Rehabilitation Act. At the

conclusion of all of the evidence defendant renewed its motion for

judgment a s matter of law on the ADEA claim. The motion was

denied. The jury decided that defendant terminated plaintiff

because of his age and awarded $22,000.

Following the entry of judgment, Midland filed a motion for

judgment as a matter of law, and alternatively a motion for new3 Fed. R. App. P. 26(a).

4

trial. The motion was denied. Defendant timely appealed, 3

challenging the district court's denial of its motions for judgment

as a matter of law and alternatively for new trial.

MOTION FOR JUDGMENT AS A MATTER OF LAW

Midland moved for judgment as a matter of law both before and

after the verdict; we review the denial of Midland's motion for

judgment as a matter of law using the standard announced in Boeing

Co. v. Shipman , 411 F.2d 365, 374-75 (1969)(en banc). Armendariz

v. Pinkerton Tobacco Co. , 58 F.3d 144, 148 (5th Cir. 1995), cert.

denied

, U.S. , 116, S.Ct. 709, 133 L.Ed.2d 664 (1996).

Judgment as a matter of law is appropria te if the facts and

inferences point so st rongly and overwhelmingly in favor of

defendant that a reasonable jury could not have concluded that the

ADEA was violated. Boeing Co. v. Shipman , 411 F.2d at 374.

EVIDENCE OF AGE DISCRIMINATION

Under the ADEA, it is "unlawful for an employer to discharge

any individual

. . . because of such individual's age." 29 U.S.C.

§ 623(a)(1). Where, as here, there is an appeal of a jury's

verdict of age discrimination, we need not address the sufficiency

of plaintiff's prima facie case. Rather, the focus of our inquiry

is whether there was sufficient evidence upon which a jury could

have concluded that discrimination has occurred. Weaver v. Amoco

Production Co. , 66 F.3d 85, 87 (5th Cir. 1995).

The question of whether there is sufficient evidence in

this case to support the jury's determination of age discrimination4 Boeing Company v. Shipman , 411 F.2d 365 at 374.

5 is a close one. Defendant asserts that Faust was terminated

because he had the major responsibility for the maintenance areas

which were rated "unsatisfactory" by the HUD inspector. There is

evidence supporting defendant's contention. Jackie Long testified

that the majority of the problems noted in the HUD report dealt

with maintenance, plaintiff's responsibility. Additionally, there

was a temporal connection between the unsatisfactory HUD report and

plaintiff's termination; plaintiff was terminated within a few days

of the date the HUD report was issued. There was sufficient

evidence for the jury to conclude that the sole reason for

plaintiff's termination was the unsatisfactory maintenance of the

complex. However, the jury elected to credit the testimony of

other witnesses, discussed hereafter, as it was their province to

do, testimony indicating that Faust was terminated because of his

age.

Construing the evidence in the light most favorable to

plaintiff, 4 w e conclude that there is sufficient evidence to

support the jury's conclusion that Midland discriminated against

Faust on the basis of age.

Alice Hughes, the janitress at the Barley Court apartments,

testified that within a week before Faust was terminated, Ms.

Wagner told her that "[Faust] was going to be fired because he was

too old to perform the job." She further testified that Ms.

Wagner stated that "Jack is too old and couldn't perf orm the job

and he was going to get fired." Additionally, Rhonda Watkins, a6

resident of the Barley Court apartments, testified that Ms. Wagner

told her, "[Faust] ain't hurt his back; he's just too old." The

testimony of Ms. Hughes and Ms. Watkins is direct evidence of

discrimination. "Direct evidence of discrimination is evidence

which, if believed would prove the existence of a fact (i.e.,

unlawful discrimination) without any inferences or presumptions."

Bodenheimer v. PPG Industries, Inc.

, 5 F.3d 955, 958 (5th Cir.

1993). Ms. Wagner's statements link Faust's termination and his

age.

While the actual decision to terminate Faust was not made by

Ms. Wagner, but by Tom Risher, the CEO o f Midland, there is

evidence that Wagner had input into that decision. In deciding to

terminate Faust, Risher followed the recommendation of Jackie Long,

the property manager. Long admitted that in recommending that

Faust be terminat ed, he relied at least in part on Ms. Wagner's

comments concerning Faust. Long testified that Ms. Wagner told him

that she wanted "someone that she could count on to do the work."

While this comment by Ms. Wagner is not necessarily related to age,

her earlier statements that plaintiff would be terminated because

of age were sufficient for the jury to determine that age was the

real basis for her recommendation that plaintiff be discharged.

While the evidence of age discrimination is scant,

considering Ms. W agner's statements linking Faust's age with his

termination, and the fact that she had input into the decision to

terminate Faust, there is sufficient evidence for a reasonable jury

to conclude that discrimination based on age occurred.7 MOTION FOR NEW TRIAL

We review the denial of a motion for new trial for abuse of

discretion. D awson v. Wal-Mart Stores, Inc.

, 978 F.2d 205, 208

(5th Cir. 1992). The standard of review is more narrow when

reviewing the denial of a motion for new trial than when reviewing

the granting of a motion for new trial. B ailey v. Daniel

, 967 F.2d

178, 180 (5th Cir. 1992). In other words, greater deference is

given to the district court when, as here, the motion for new trial

is denied, leaving the jury's determination undisturbed. W eaver v.

Amoco Production Co. , 66 F.3d at 88 (5th Cir. 1995).

The district court had the opportunity to observe the

witnesses and assess their credibility. "The abuse of discretion

standa rd recognizes the deference that is due the trial court's

first-hand experience of the witnesses, the ir demeanor, and the

over-all context of the trial." Dawson v. Wal-Mart Stores, Inc.

,

978 F.2d at 208. It is not our role to substitute our judgment for

that of the jury and district court. The district court did not

abuse its discretion in denying Midland's motion for new trial.

Accordingly, the judgment of the district court is affirmed.