Rhodes v. Guiberson Oil Tools

M. Before EMILIO GARZA and I DeMOSS, ZAGEL, Judges, Circuit dispute The critical issue in on this Judge.* District appeal sufficiency sup evidence to port jury finding DeMOSS, discrimination. Judge: Circuit That upon issue calls us to exercise our employer, Calvin Rhodes sued his former appellate responsibility review to determine (“Guiberson Oil”), alleg Guiberson Oil Tools whether there was upon sufficient evidence ing that Guiberson Oil terminated him on jury which a rationally reasonable could con age, in Age account of his violation of the clude that Guiberson Oil discriminated Act, Employment in Discrimination 29 U.S.C. against age. Rhodes the basis of The (1988) (“ADEA”). §§ 621-34 parties testimony presented at trial showed the fol stipulated magistrate judge that a would de lowing. except liability. liability cide all issues jury issues were tried to a who May found From 1955 until Rhodes sold against products Guiberson Oil had discriminated wireline for the Atlas Óivision of (Atlas) judgment Rhodes. Guiberson Oil moved for corporate predeces- Dresser and the as a of law matter both before and after the sors of collapse that division. With the of oil jury magistrate judge prices early verdict. The in resulting dis 1980’s and the prejudice missed sharp Rhodes’ case with because drilling decline domestic oil Rhodes, prior action, bringing production, along many failed Atlas with other timely charge Equal companies file a Em industry in the oil field services ployment Opportunity experienced Commission. Rhodes severe economic In difficulties. dismissal, appealed contending response pressures, that his to these Atlas reduced panel suit was not time-barred. A of this the size of its sales force from 70 to 25 agreed, magistrate court through major layoffs reversed occurring in judge’s setting decision early aside the ver 1986. In each round of these dict, layoffs, and remanded for a attempted strong- determination of Atlas to retain the damages. performers go See Rhodes v. produc- Guiberson Oil est and to let the least Din, (5th Cir.), time, Tools personnel. 927 F.2d 876 cert. Company tive Each cut denied, percent performers. 116 the bottom five (1991) (Rhodes I). L.Ed.2d 158 prior so hold Rhodes each of these survived reduc- ing, panel specifically However, personnel. noted that tions March supported of whether the evidence faced with the need to reduce sales forces * Illinois, Judge sitting by designation. District of the Northern District of eroding, placed of which him supervisor base was both further, immediate Rhodes’

still performers go. percent Rhodes selection in the bottom five decided to let layoffs was on his strategy based Rhodes’ trial was to for that round of below Allen. ability, comparison company’s of technical the low sales to the bid- lack attribute personnel, and his de- remaining practice sales of in-house materials ding other and use supervisor Rhodes’ clining competitively priced customer base. instead of materials layoff him both of his personally informed open showing nothing did market. This However, it. before and of the reasons legitimate business reason to undermine the Atlas became ef- Rhodes’ termination proffered Guiberson Oil.

fective, company official found Rhodes Next, important to note what is product selling line and position another testimony is no the record. There in lieu of ter- accepted this transfer Rhodes age age any any that Rhodes’ or the of kind product new line was trans- mination. This employee other was ever mentioned or dis Oil, another from Atlas to Guiberson ferred decision-making cussed as a factor. There is Dresser, in the middle of 1986. division of testimony any employee from fellow no product line suffered the same This new management personnel Guiberson Oil’s had occurred at At- difficulties as economic age. There is no docu talked about Rhodes’ supervisor, July Rhodes’ Lee las. In any mentary indicating internal continuing reduction in Snyder, part as of Oil which dis memorandum Guiberson (RIF), 27-year released a old sales force age. cussed Rhodes’ There was no rebuttal it representative. In October 1986 became testimony by that could have estab Rhodes apparent in the sales force further reductions pattern lished that Oil had a or Guiberson Snyder selected Rhodes and a were needed. reducing practice of the sales force termi representative” 32-year “technical old nating employees. There was no re older they pro- were his least termination because testimony buttal from Rhodes that the 32- employees. At the time of his termi- ductive nation, year representative not ac years old old technical was Rhodes was 56 and received $65,000. tually salary terminated at the same time as an annual On Rhodes’ Finally, Rhodes. Rhodes did not rebut testi report, Guiberson Oil stated both severance mony Snyder, manager that it Rhodes because of a re- a sales above Rhodes, 32-year force and that it would con- duction work that Rhodes and the old months, re-hiring him. two representative” sider Within “technical were terminated however, 42-year they productive Guiberson Oil hired old “because were his least em salesman, $36,000, salary at an annual ployees.” support In of his claim that he had trial, replace During Rhodes con- Rhodes. age,” been terminated “because and, fact, ceded that his sales were low only following: Rhodes offered sales were lower than conceded that his terminated, 1. After Rhodes was Guiber- sales, Lloyd in the New Allen’s the salesman 42-year rep- son hired a old1 Oil sales tubing ad- Orleans services sector. He even resentative to cover sales in the New management, mitted that had he been he area; Orleans would have RIF’d himself instead of Allen. paid 42-year 2. Guiberson Oil this old group paraded Rhodes of customers before month, $3,000 per approxi- which was confirming jury, all that Rhodes was a $2,000 mately per month less than But each con- hard worker. customer also making; Rhodes had been competitive firmed that his bids were not (a Snyder manager sales 3. Alfred Lee they give jobs. him did not Guiber- Rhodes) said, and above testi- below Givens say, not and never that it son Oil does stated once that he lazy; says it fied Givens fired Rhodes because he was younger could hire two salesmen for selected Rhodes for reduction force be- cause his were down and his customer what some of the older salesmen were sales “replacement” over 40 and Rhodes. This was therefore protected younger within the class but was than “youn- completely Snyder Guiberson Oil therein were mis-

costing. later retracted two leading” consequently clarified that he said and that ger” and for what some of “pretextual.” “new” salesmen reasons were Oil’s costing, but it “other” salesmen were however, opinion, expressly Rhodes I Snyder the statement who offered panel stated had not addressed the age. only reference made to as evidence, sufficiency issue of the of the proof offered The first two items therefore, panel whatever conclusions claim of his discrimination clearly reached are dicta as to that issue in prima facie case. The simply completed the appeal. this We are at a total loss to under- spoken third item of his opinion stand how dicta an on interlocu- makes no reference to Rhodes in mind and tory appeal, attempt which made no to evalu- any age or the “other” either Rhodes’ jury, ate the evidence considered being paid. Surely employees who were over any bearing could have whatsoever on the inferring dis- there is no rational basis sufficiency of the evidence on the basis of from such crimination appeal. before the this short, generalized comments as this. our of the evidence in this case leads us to review During pendency appeal, the .of or conclude that there is no evidence testimo- Court decided St. Honor ny any connection between which shows — Hicks, v. Center his Rhodes’ and the decision to terminate (1993). 2742, By 28(j) Rule employment.2 In several ADEA cases decid- briefs, letter both sides copies furnished of circuit, it that previously ed in this is clear respective arguments that decision their eyes its to situa- our circuit has not closed impact as to how decision should our this fundamental lack of evi- tions which many determination of this case. Like 5-to- dence exists.3 Court, Supreme opinion 4 decisions of the briefs, attempts argue Mary’s easy analyze, is not but St. insufficiency prob- away the of the evidence view, opinion our breaks down into the by reiterating of his lem the essentials following primary secondary holdings: and proof by repeated references to holding Mary’s primary A. The of St. is by panel language used the other of this employee plaintiff that an is not entitled interlocutory ap- court who considered the law, judgment argues as a matter.of even peal in Rhodes I. Rhodes that these report though the concludes that the statements indicate that the severance factfinder discharge was “false” that the reasons offered reasons for his proffered 1991) (affirming grant colleague castigates of 2. Our in dissent us for our of JNOV in favor defen Constructors, Inc., dant); of what and what is not in the detailed review v. Ebasco 986 Molnar 115, testimony jury. (5th Cir.1993); before the We note however that F.2d 118 Laurence v. Chev point ron, Inc., 280, and the (5th Rhodes did not out in his brief U.S.A. 885 F.2d 284-85 Cir. evidence, any other dissent does not mention 1989) (both reversing jury verdict in favor of indirect, or than the identi- direct other matters plaintiff)). being fied in our review of the evidence as rele- sufficiency vant to a review of of the evidence arguments, particu- dissent Rhodes' 4.The echoes Furthermore, claim. there were no conflicts in larly "discrepancies as to what is called between jury’s credibility testimony where the choice report Rhodes’ severance and Guiberson’s trial binding. be would discharge.” justification for his We see no dis- crepancy language between the of whatsoever Co., Lilly 3. See v. Eli & 990 F.2d 817 Moore report indicating that Rhodes was the severance (5th Cir.1993) (listing plain cases in which n. because of a "reduction in force” and terminated proof, tiffs meet their burden includ failed to of testimony presented by Guiberson as to the Garland, ing Waggoner City 987 F.2d 1160 place history of in force which took reductions (5th Cir.1993); Indus., F.2d Guthrie v. Tifco employed offices in Rhodes was which (5th Cir.1991); Amburgey v. Corhart Likewise, ultimately the lan- (5th affected Rhodes. Corp., 936 F.2d 813-14 Refractories guage report indicating Cir.1991); Co., of the severance Hanchey Energas rehiring” (5th Cir.1990) (all Rhodes is affirming summary Guiberson would "consider 98-99 defendant); simply polite way confirming that the em- judgment Repub favor of Little v. ployee Refining fired for misconduct. lic 96-98 was not guage in Burdine and McDonnell were not the real reasons employer discharge. Mary’s, Douglas. To that such lan- the extent for such at-, guage suggests “disproof at 2751. of the totally inde- [is] defendant’s reason secondary holdings of St. B. The auxiliary, pendent, rather than an were: intent,” proving unlawful means (1) fully has been a Title VII ease Once language “an such inadvertence.” factfinder, the McDonnell tried at-, at 2753. Id. S.Ct. framework, regard- Douglas/Burdine order and ing prima facie case and the in some detail our We have described evidence, production for burdens holdings major conclusions as to these disappears; irrelevant and becomes ity opinion that deci because involving case a claim of dis- and a changes critically sion makes two which are should then be treated at crimination on this important to the resolution ease: just appellate like the trial and level (a) first, “pretext” may term whatever the calling an ultimate any other case (cid:127) past, have meant under St. at-, of fact. Id. determination only Mary’s, “pretext it can now mean S.Ct. at 2753. discrimination;” and (2) factual determination in The ultimate (b) second, when read as a whole and con- is: “Did the a Title VII case sidering controversy between the hire, fail- [i.e. an action failure to take majority opinion and the in St. dissent promote discharge] or rea- ure to Mary’s, it is clear [i.e., sex, prohibited factor son of a against theory “pre- Court ruled at-, race, religion, etc.]?”. Id. only” plain- text under which a Title VII at 2749. automatically successfully tiff wins if she (3) persuasion The burden proffered by that shows the reasons her fact remains at all on that ultimate employer for her termination are factu- at-, plaintiff. Id. times on ally false. 2749. S.Ct. at addition, were two other C. In there sub- case, colleague In and our in Rhodes holdings which were material to ordinate urge would to conclude that there dissent us Mary’s: conclusion in St. the court’s yet position is a third articulated within the (1) “pretext” “pretext The term means majority Mary’s by decision in St. the lan- To establish that for discrimination”. 28(j) guage quoted in Rhodes’ letter.5 We proffered a reason for an action taken invitation, decline such first because the employer “pretext an was dis- quoted language obviously is dicta. The trier crimination,” plaintiff must show Mary’s of fact in did not make a determi- St. employer’s proffered both that “discrimination,” question and the nation reason was false and that discrimina- Supreme not before the Court was the validi- at-, tion the real reason. Id. ty of the trial court’s determination of no 113 S.Ct. at 2752. discrimination, validity but the of the Circuit (2) Finally, language of Burdine reversal of that determination as a Court’s Consequently, determining plaintiff

that a show discrimina- matter of law. “indirectly by showing language Mary’s applies tion that the what of St. to or case, language” employer’s proffered explanation is controls our the “dicta should dictum, unworthy yield language holding of credence” is involved Mary’s Secondly, Mary’s which is inconsistent with other lan- of St. itself. St. mendacity) may, together position 5. that the com- with the elements of That district court is case, pelled plaintiff to show intentional to submit the case to the once suffice discrimination, Appeals employer's creates a issue as to whether the ... and the Court of fact that, upon rejection, fol- when it noted such asserted reason is true and is based on the correct lowing language: of discrimination is re- "The factfinder’s disbelief of 'no additional ” at-, Mary's,-U.S. put (partic- quired.' forward the defendant reasons ularly accompanied by suspicion at 2749. if disbelief is sufficiency just picture” not a of the evidence the trier of fact must then and, only at we should look not what the decide the ultimate of intentional Supreme Mary’s, said in St. but what Court Although discrimination. the Tenth Circuit did, i.e., the Court the Court reversed and very cited the language same St. remanded the case to the Circuit Court to upon by 28(j) letter, relied apply appellate review—“which normal summary judg- nonetheless concluded that should be conducted on remand this case appropriate ment was still because the em- ‘clearly under the erroneous’ standard of ployee had not offered sufficient evidence to 2(A)” Rules of Procedure Federal Civil finding employer’s —to that the stated the determinations made the trial court in pretext reason was a discrimination. Id. at-, Mary’s6. Id. 113 S.Ct. at 2756. (affirming summary judgment in favor by saying The concluded Court employer). appellate such review would be made “consis- Finally, in Anderson v. Baxter Health opinion.” Implicit in tent with this the func- (7th Corporation, Care 13 F.3d 1120 appellate responsibility tion of review is the 1994), the recognized Seventh Circuit sufficiency to determine the of the evidence Mary’s, plaintiff after St. an ADEA is not properly preserved when has been judgment entitled to as a matter of law sim the trial below. ply proves because she her facie ease This case is not the first time our circuit employer’s and then shows that proffered impact and other circuits have addressed the discharge reasons for her false. of St. on later cases. In Bodenheim- Anderson, Anderson, 13 F.3d at 1125-26. Industries, Inc., er v. PPG 5 F.3d 955 employer discharged claimed it had Cir.1993), Mary’s requires we held that St. poor performance. Anderson based on summary judgment stage at the Court held that if proven even Anderson had age tender some evidence was a deter- reason, employer’s perfor stated decision, employment minative factor in the mance, pretext, was a and that plaintiffs rely solely and that could salary, been to reduce such facts eonclusionary allegations trying to discredit would not establish discrimination. Id. Bodenheimer, employer’s reasons. Similarly, F.3d at employee Mitchell v. Data in Anderson also contended (4th Cir.1993), Corp., General 12 F.3d 1310 committed discrimina the Fourth employer’s by firing simply salary Circuit held that the tion him to reduce conclusory costs; performance, previous statements about and cited a decision in the expressly age-related, which supported were not were Seventh Circuit which that conten However, not sufficient to express raise a fact issue as to the tion. the Seventh Circuit employer’s legitimate non-discriminatory had, ly recognized prior ex- that that decision effect, planation because there was no direct evi- been overturned the unanimous indicating Supreme dence decision of the Court in Hazen , — Mitchell, age. -, Paper Company based on 12 F.3d at Biggins U.S. (affirming summary judgment 1701,. (1993), in favor of the employer). Additionally, in Supreme Durham v. Xe- which the Court held “there is (10th Cir.1994), Corporation, disparate rox 18 F.3d 836 no treatment under the ADEA Mary’s motivating the Tenth Circuit cited St. employer the when the factor proposition employer age.” that when the employee’s tenders some feature other than the legitimate non-discriminatory at-, of a Paper, rea- Hazen 113 S.Ct. at promoting employee, son for not Supreme “the 1705. The Hazen Court decided 20, 1993, presumption Paper April of discrimination from the em- on and decided St. ployee’s prima simply drops Mary’s Paper facie case out of on June 1993. In Hazen holding by Mary's 6. The the trial court in St. was: dence or inference that his unfair treatment was proving "Plaintiff has succeeded in that the viola Mary’s motivated his race." v. St. See Hicks disciplined pretextu tions for which he was were Center, 1992) Honor discharge. al reasons for his demotion and (internal omitted). corrections not, however, proven by Plaintiff has direct evi disparate no treatment under the that it is con- there is mentions Supreme Court but, case; Mary’s motivating in its St. ADEA factor the em when the sidering the St. Supreme Court does not Mary’s opinion, ployer is some feature other than the em , — Paper at all. St. to Hazen age.” Paper cite or refer Hazen ployee’s case and Furthermore, a Title VII is of course at 1705. S.Ct. ADEA case. Paper is an Since stated, Hazen disparate Supreme “[a] Court treat case, an ADEA we believe case before us is ment claim cannot succeed unless the em Paper relevant and de- is more that Hazen actually played a ployee’s protected trait role Mary’s. than St. to this decision terminative process in that and had a determinative influ analysis Paper. to an of Hazen We turn now at -, ence on the outcome.” Id. Finally, Supreme stated: at 1706. Court (the Paper, Biggins employee) In Hazen (Hazen employer Paper) under his sued years of service are “Because pendent ADEA and ERISA and asserted distinct, analytically an can take law. in tort and contract under state claims other, ignoring while account of one Paper fully tried As in this Hazen thus, say to that a is incorrect jury Paper Hazen jury. to a found that years on is neces- decision based of service Biggins ADEA and awarded violated the at-, sarily ‘age ”. Id. based’ $560,775 damages.7 jury also found at 1707. (the jury that the ADEA violation was willful violation). not find a willful in this case did Accordingly, Supreme Paper in Hazen Biggins Paper post- Hazen filed Both ADEA Court reversed the claim and re- motions, including specifically a motion trial manded the ease to the Circuit Court 50(b) judg- under Rule Paper Hazen jury had sufficient “reconsider whether of law or in the alternative ment as a matter evidence to find an ADEA violation.” That granted for a trial. The trial court new very appropri- is the task which we now have judgment as a matter of law favor of here; ately judgment, and in our addressed ADEA violation and on one of Biggins on the testimony presented no evidence or claims, awarding damages the state law jury rationally could conclude which jury’s advisory finding accepting the that the “had a determinative influence” on appeal, ADEA was willful. On violation decision to terminate him. Guiberson Oil’s court, relying affirmed the trial Circuit Court dissenting colleague recognize that our We Paper heavily evidence that Hazen opinions can find from other circuits which Biggins prevent pension his fired order support meaning contentions as to the vesting as for the benefits from specifically as to the or more appeal, finding of an ADEA violation. On St- concept language quoted in footnote reiterating after the distinction between “dis- 5, supra, “disparate impact” was intended fashion some new parate treatment” and cases, hybrid required as to what was to show Court reversed the Cir- test clarify applied sug- If cuit and held: now discrimination.8 read and as “[w]e Court 842-43; jury Biggins by age for on his ERISA animus. Id. at see also Marcan 7. The also found Dev., Dep’t Transp. claim and some of his state tort and contract tel v. and 37 F.3d (5th Cir.1994) (St. Mary's claims. settled the issue that enough; 'pretext-only' "the doctrine is not even employer's employee proves if the that the non respect colleague, due to With all our the six 8. discriminatory pretextual, is the reason cases cited in his dissent do not all his dissent, prove discriminatory that an unlawful in position. by must Of the six cases cited the action”); employer's judgment employer tent motivated the Seman v. four affirmed in favor of the Co., (3d Coplay judgment and one reversed in favor of the em- Cement one, 1994) (St. Mary’s "requires employ ployee. that once an At least LeBlanc v. Great Am. Ins. (1st Cir.1993), production by coming clearly holds er has met its burden of governing nondiscriminatory when an ADEA case is forward with a business rea that the test go jury discharging protected employee, a the entitled to to is not whether the son for prove employee plaintiff-employee that the has created a fact issue as to the em- must then busi ployer's pretextual he in reason but whether there is ness reason was and that was articulated against juror tentionally evidence a discriminated on the basis of from which reasonable could employment age. will find that was Proof of one without the other not decision motivated dissent, charge, you still find for the if quoted language by the gested by prepon- develop- you proven find that he has a very momentous two lead to would evidence, derance of the that the reasons ments: by stated the defendant were the true judgments for the Summary A. plaintiffs discharge, for or that reasons in and Title VII be eliminated would plaintiffs age likely more than not was even in eases where ADEA suits discharge. determining a factor in his absolutely no evi- though there was added.) (Emphasis discriminatory whatsoever dence plain- employee or actions the animus instruction is inconsistent with the This prima facie case tiff establishes Mary’s in Supreme opinion court’s St. Honor of fact as to the raises a and — Hicks, -, 113 S.Ct. Center non-discriminatory expla- employer’s (1993), ought not nation; and Mary’s say that a given. be I read St. tried on its merits If case is then B. jury liability plaintiff sole cannot find for the that the the factfinder determines gave a false reason ly because the defendant non-discriminatory reason employer’s discharge. This what I at the time of believable, employee is enti- is not believe the Court meant when cannot be set judgment which tled to “nothing permit us to said that law would insufficiency the evidence aside for required finding that the substitute for is abso- though the trial record even product unlaw employer’s action was the any or testi- lutely devoid of (and discrimination, the much different ful discriminatory mony which relates lesser) employer’s finding much that the ex animus. actions or planation of its actions was not believable.” view, are the same as these results In our at -, Mary’s, 113 S.Ct. St. minority view if the would have occurred adopted by the in fact been assumption majority. proceed on the We necessarily prevents jury a Nothing in law not inad- majority in did rejecting proffered reason at trial bag. vertently let the cat out intentional inferring “the ultimate fact of the decision of Accordingly, we REVERSE Id. at discrimination.” deny Oil’s judge proxy Guiberson magistrate the “lie” serves as 2749. Whether of law and judgment as a matter depends motion for on the necessarily for discrimination Oil. judgment favor of Guiberson render is uttered. See id. context in which the “he” decision, points other In view of at -, prof (employer’s at 2752 Oil and appeal raised on error discrimina pretext is not a for fered reason cross-appeal by Rhodes are moot. in his both that the reason tion “unless it is shown false, that discrimination was ZAGEL, Judge, specially District reason”) (emphasis original.) real concurring. simply recognition basis for this they opinion, but I join Judge rarely employees DeMoss’ tell employers I being lousy I am troubled work separately being discharged because write jury ways in this tendered to the Employers the instructions often “lie” different ers. reasons, told: one of which legitimate case. business employee the blow legitimate is to soften Though the defendant claims in force or a reduction saying that there is plaintiffs dis- reason for the business by preponderance the evi- suffice.”); pretext Corp., Healthcare establish dence). Anderson v. Baxter Sch., (7th Cir.1994) (affirming High Holy 4 F.3d F.3d 1125-26 Cross DeMarco employer summary judgment notwith Cir.1993), for the (2d only the issue involved creating the standing a fact issue that evidence religious application institutions. to ADEA’s false). employer’s.nondiscriminatory reason was Further, a decision create we do not this F.3d Shamrock Chem. Diamond Manzer v. was none before. where there Circuit conflict (6th Cir.1994) (affirming verdict directed Cir.1993) Leblanc, (1st Compare, e.g., 6 F.3d 836 requiring that a the for when, fact, years being salary shifted old and received an annual is business employee poor they discharging the for $65,000. report, On his severance Guiberson Clearly, only this the performance. is not stated that it had discharged Oil both Rhodes Mary’s. I ground in St. But for the decision because of a reduction work force and that And, I it one reason. believe the believe rehiring it would consider him. Within two remedy Mary’s proposed to this court months, however, Guiberson Oil hired a for- by carefully drafting jury problem instruc- salesman, ty-two year salary old at an annual emphasis placed that less on the tions so $36,000, replace to Rhodes. discharge. time of employer’s lie at the subsequently Rhodes sued Guiberson Oil jury here should have been instructed The violating Age the Discrimination in Em- only may it hold the defendant liable if it (1988) Act, ployment §§ 29 U.S.C. 621-634 proven that finds that the has (“ADEA”). juryA found that Guiberson Oil likely plaintiffs age more than not was a employment terminated Rhodes from his be- determining discharge. factor in the age, cause of his but also found that Guiber- jury also should have been instructed that it willfully son Oil had not violated the ADEA.2 may whom make its usual decisions about magistrate judge, hearing after further believe and that if it finds that the defendant testimony damages, proffered plaintiffs reasons for the on the issue of found false dis- (but trial, charge compelled is not damages that Rhodes had sustained to) from the context of the lie and the infer $188,866.70 amount of as a result of Guiber- other evidence the ultimate fact that son Oil’s unlawful conduct. Both Guiberson determining discharge. factor appeal jury’s Oil and Rhodes now find- ings liability magistrate issues and the GARZA, Judge, M. Circuit EMILIO judge’s damages. calculation of dissenting: 1) majority fails to Because the view the II light most favorable to the 2) verdict, jury employ A fails articulate and review, proper appellate standard of Oil, which moved for a directed 3) analyze apply Supreme fails to Court plaintiffs verdict both at the close of the precedent properly, respectfully I dissent. case-in-chief and at the close of all the evi- dence, contends that the evidence is insuffi- I jury’s finding cient to began employment Calvin Rhodes with argues discrimination. Guiberson Oil thus divisions of Guiberson Oil other Dresser magistrate granting erred in not its Industries in 1955 as a salesman of oil-indus- judgment notwithstanding motion for try-related 31, 1986, products.1 On October (“JNOV”).3 reviewing verdict In a motion Rhodes, allegedly Guiberson Oil JNOV, because of a reduction in force necessitated the Court should consider all of the industry. in the oil At evi- recession termination, fifty-six just time of his Rhodes sup- dence —not that evidence which Garrett, Washington Opportunity appeal 10 F.3d 1421 ment Commission. Rhodes dismissal, Cir.1993). contending ed the that his suit was not agreed, magistrate time-barred. We reversed the verdict, judge’s setting jury decision aside the properly appellate 1. In order to exercise our damages. and remanded for a determination of function, light we view the evidence in the most Div., See Rhodes v. Guiberson Oil Tools verdict, is, jury favorable to Rhodes. - (5th Cir.), denied, cert. Boeing Shipman, See Co. v. 374—75 (1991) [hereinafter (5th Cir.1969) (en banc). holding, specifically /]. so we noted sup of whether the evidence parties stipulated magistrate judge 2. The that a ported the verdict was not before us. Id. at 878. except liability. would decide all issues Conse- quently, found after that Guiberson Oil 3.This case was tried before the effective date of Rhodes, against magistrate had discriminated the 1991 amendments to the Federal Rules of judge prejudice dismissed Rhodes' case with be- Civil Procedure. Rule 50 now uses the term Rhodes, action, prior bringing "judgment cause failed law” as matter of for both a direct- timely charge Equal Employ- to file a with the ed verdict and a JNOV.

547 action; in the ment. Honor Ctr. v. non-mover’s ease —but ports the —Hicks, U.S. -, 2742, all reasonable inferences light and with opposed party to the (1993). most favorable 2747, If 125 L.Ed.2d 407 the defen point If the facts and inferences motion. burden, presumption dant meets its overwhelmingly in of strongly and favor so by plaintiffs prima raised facie case dis believes that party one the Court Burdine, appears. at 450 U.S. 255 & n. not arrive at a con- men could reasonable plaintiff 101 S.Ct. at 1095 & n. 10. The then verdict, granting trary motion[] is demonstrate, opportunity has the to through hand, proper. if there is On the other presentation through of his own ease and opposed evidence to the mo- substantial cross-examination of the defendant’s wit ], is, quality of such and evidence tion! nesses, proffered reason was not the weight reasonable and fair-minded decision, employment true reason for the and impartial judgment of men the exercise — Mary’s, at -, was. St. U.S. conclusions, might different the mo- reach 2747; Bodenheimer, 5 S.Ct. F.3d at [I]t should be denied.... tion!] so, doing If “[t]he 957. he succeeds fact- of the as the traditional find- function put finder’s disbelief of the reasons forward facts, Court, weigh and not the er by (particularly the defendant if disbelief is inferences, conflicting and evidence and accompanied by suspicion mendacity) of credibility of witnesses. determine the may, together prima with the elements of the Boeing Shipman, 411 F.2d 374-75 Co. v. ease, facie suffice show intentional discrim (5th Cir.1969) (en banc). at -, Mary’s, ination.” St. appeal, S.Ct. at 2749. On Guiberson con Oil B ceded that Rhodes established a ADEA makes it “unlawful for an em Thus, only case.4 we must determine discharge any ... ... ployer individual supports whether evidence the conclusion age.” of such individual’s 29 U.S.C. because proffered that Guiberson Oil’s reason was not 623(a)(1). § facie ease To establish terminating the true reason for Rhodes. See discrimination, “must (“[Rejection prof Id. of the defendant’s (2) (1) discharged; that: demonstrate he was permit fered will the trier of fact ] (3) qualified position; reasons! he was for the he was to infer ultimate fact intentional dis protected within the class at the time of the crimination, ..., rejection, i) upon such no (4) discharge; replaced he was either ii) class, additional of discrimination re by protected someone outside the iii) by quired.”). replaced younger, someone or other discharged age.” because of his Boden wise report, Rhodes’ severance On Guiberson Indus., Inc., heimer PPG discharged indicated that Rhodes was Oil (5th Cir.1993). If the establishes a of a reduction in work force and that .because presumption prima facie he creates a rehiring it would consider Rhodes. The evi- discrimination, Dept. Community Texas however, trial, dence adduced at showed Burdine, 248, 254, 450 U.S.

Aff. position these reasons were false: Rhodes’ (1981), and the a reduction in force. eliminated as burden shifts to the defendant to “articulate Moreover, contrary con- to the statements legitimate, nondiscriminatory some reason” report, tained in the severance challenged Doug for the action. McDonnell Oil’s defense at trial was that Rhodes was Green, 792, 802, Corp. v. las poor perfor- because of his work (1973). 1817, 1824, L.Ed.2d The de mance. This contradiction between the false presenting fendant meet burden report given on the severance that, reasons fact, the trier believed “if justification presented at trial could rea- finding would that unlawful dis employ- sonably jury to disbelieve Guiberson’s crimination was not the cause of the lead a I.e., (4) (1) discharge; replaced he was some- Guiberson conceded that Rhodes was (2) substantially younger discharged; (3) qualified position; within two months of he for the one protected discharge. he was within the class the time 548 Ill Consequently, the evidence

explanation. jury’s finding that

supports the Guiberson terminating proffered reasons for Oil’s A disbelief, That to pretextual. were Rhodes however, majority, finds Rhodes’ evi- prima of Rhodes’ gether with the elements jury’s support dence insufficient to the find- ease, permitted require— did not facie —but My ing of intentional discrimination. first jury Oil intention the to find Guiberson majority disagreement with the concerns its against ally discriminated Rhodes account appellate an review of the evidence. As at -, Mary’s, age. of his See St. court, do not our own we substitute view 2749; Anderson v. Baxter weight jury. the of the facts for that of the (7th 1120, Corp., 13 F.3d 1123-24 Healthcare Instead, light we view evidence in the the Cir.1994) (noting plaintiff may pre that “the jury Boeing to most favorable verdict. by establishing vail a discrimination case Co., jury 411 F.2d at 374-75. Because by showing prima facie case and Rhodes, in favor found we view evi- employer’s proffered nondiscriminatory rea light dence most favorable to Rhodes. false”); discharge Washing sons for ... majority See id. The has failed to do this.6 (9th Garrett, 10 ton v. F.3d Cir. 1993) (holding ... that “the factfinder is Moreover, proper appellate our function is plain entitled to infer discrimination from evidence, only reweigh not to to but showing prima tiffs of a case and enough if determine there was to more”). anything pretext without (“[I]t jury’s finding. See id. is the function jury as the traditional finder of the Additionally, that Oil deliberate Guiberson facts, Court, weigh conflicting and not the ly concerning the circum misled Rhodes evidence and inferences and determine the discharge stances of his and that Guiberson witnesses.”). Therefore, credibility of younger person replace Oil hired a Rhodes question is not whether we believe shortly discharge after his constitute relevant legitimate Rhodes “undermine[d] busi- age evidence of intentional discrimination. Guiberson,” proffered by maj. ness reason See, e.g., Allright Parking Ramirez El op. jury but whether the could rea- Paso, (5th Inc., 1377-78 Cir. F.2d sonably have disbelieved Guiberson’s evi- 1992) (holding plaintiff that evidence that Similarly, although majority dence. replaced younger person and that the record,” elaborates on “what is not see employer’s proffered discharge— reason for maj. op. at whether certain items are job plaintiff poor perfor it fired missing presented from the evidence is irrel- pretextual mance —was constituted evidence if evant could nonetheless find inten- discrimination). of intentional Accord tional discrimination. Rhodes need not have ingly, I would hold the evidence suffi overwhelming only had an a sufficient verdict, ciently jury’s supported the and the Moreover, one. much of evidence that the correctly magistrate grant refused to Guiber- majority castigates lacking is di- evidence,7 typically son Oil’smotion for JNOV or its motion for a rect which is absent required new trial.5 discrimination cases and not Co., fact, 5.Compare Prop. majority’s Atkin v. Lincoln recitation of the facts 1993) (reversing jury verdict of mirrors the statement of facts in Guiberson's discrimination where defendant did not concede that Compare maj. op. at brief almost verbatim. 539- established facie case and Def.-Appellant 40 with Br. of at 4-7. Guiberson plaintiff produced no evidence that defendant’s clearly did not construe the facts in its brief to terminating pretext reason for him was for dis favor Rhodes. crimination); Lilly Moore v. Eli (5th Cir.) (upholding grant summary judg maj. op. (criticizing 7. See at 540 Rhodes for ment for defendant where established provide failing to evidence of discussions of his produce any facie case but failed to evi age by management employ- or other explanation dence that defendant's for its action denied, pretextual), ees or documentation that Guiberson's decision cert. - mU.S. (1993). age). 126 L.Ed.2d related to his (“[T]he language report Accord- of the in- discrimination.8 severance prove intentional judgment not mandate ingly, dicating its absence does that Guiberson would ‘consider re- favor. in Guiberson’s hiring’ simply polite way Rhodes is a confirming employee was not fired majority limits the evidence it consid- The misconduct.”), reweighs and the evidence Rhodes to three items.9 As ers favorable to (“We noted, however, own, discrepan- in Rhodes I on its see id. see no panel added). report. provided Rhodes also the severance cy_”) (emphasis Because this is I, majority F.2d at 927 881. See court, proper appellate not the function of an by stating this seeks to eliminate evidence disagree majority’s analysis I with the of the derived in Rhodes I are that the conclusions evidence.11 proceeding, it char- not conclusive this and conclusions as dicta this acterizes these B Nonetheless, agree. I this appeal. the conclusions of the court need not follow majority analyze ap- also fails to require ignore not us to

prior panel does ply Supreme precedent properly. Court Af- underlying Yet those conclusions.10 evidence stating portions holding ter various of the majority include Rhodes’ does Hicks,12 Mary’s Honor Center v. the ma- St. discrepancies between Rhodes’ evidence the jority following language states that the justifi- trial report severance and Guiberson’s “obviously dicta”13: Instead, ma- cation for his termination. The factfinder’s disbelief of the reasons jority report the severance characterizes favor, maj. op. put (particularly n. 4 see 541 forward the defendant Guiberson’s circuit, may direct or circumstan- this it is clear that our [in which] 8. A use either circuit prove eyes a case of intentional dis- has not tial evidence to closed its situations in which this maj. United States Postal Serv. Bd. crimination. fundamental lack of evidence exists.” See Aikens, 711, 3, Co., n. 103 op. (citing Lilly Governors v. 460 U.S. 714 &541 n. 3 Moore v. Eli & denied, 1478, 3, (1983). 812, (5th Cir.), L.Ed.2d 403 1481 n. 75 990 F.2d 817 n. 24 cert. -, 467, Because direct evidence is rare in discrimination cases, U.S. 114 S.Ct. 126 L.Ed.2d - ordinarily circumstantial uses (1993)). majority apparently 419 What n satisfy evidence and inferences therefrom to her eyes closed its to is that the same footnote in U.SA., persuasion. v. Chevron burden of Davis to which it cites indicates that circuit Moore Inc., 1082, (5th Cir.1994) (applying 14 F.3d 1085 frequently has also found that sufficient evidence developed Douglas inferential test in McDonnell Moore, plaintiff's lacking. in a case was not See Green, 792, 802, 1817, Corp. v. 411 U.S. 93 S.Ct. cases, (citing n. 24 990 F.2d at 817 successful 1824, (1973)). 36 L.Ed.2d 668 Paso, including Allright Parking v. El Ramirez Inc., 1372, (5th Cir.1992); Lloyd 970 F.2d 1377 1) younger replaced 9. Rhodes with a 1190, Georgia Corp., 961 F.2d 1194-95 Gulf 2) person; approximately Guiberson saved Co., (5th Cir.1992); Walther v. LoneStar Gas 952 $2,000 per salary by replacing month in costs 119, (5th Cir.1992); F.2d 122-24 Wilson v. Mon Rhodes; Givens, 3) “[o]n one occasion Jack Co., 1138, (5th Paper arch 939 F.2d 1146-47 general manager, Snyder, said to Lee Rhodes' Am., 1991); Cir. Normand v. Research Inst. of supervisor, two that could 'hire salesmen Inc., 857, (5th Cir.1991); Young 862-64 927 F.2d " costing what some of the others are me.’ See Houston, 177, (5th City 906 F.2d 182 Cir. maj. op. at 540. Inc., 1990); Delchamps, DeLoach v. 897 F.2d Cir.1990); 815, City 818-19 ns v. Texas Bur Corp., 10. See Mitchell v. Data General 12 F.3d Inc., 747, (5th Cir.1989); Ref., 749-51 evidence, 1310, (4th Cir.1993) ("The 1317 how Co., Pepsi Bottling Hansard v. Cola Metro 865 ever, facie that was offered establish denied, 1461, (5th Cir.), F.2d 1465-66 cert. 493 case, together any evi case remains in the 129, 842, (1989); U.S. 110 S.Ct. presented employer’s dence to show that Co., 404, v. Lone Star Steel Uffelman explanation pretextual.’’); was untrue or LeBlanc denied, 1098, (5th Cir.), U.S. 407-08 cert. 490 Co., (1st 6 v. Great Am. Ins. F.3d (1989)). In 109 S.Ct. 104 L.Ed.2d consider, 1993) (“[T]he along trier of fact deed, that the failed cases to Moore also indicates evidence, put with other evidence forward majority refers are “smaller" in num which the . employer’s justification for its ad show 24 ber. 990 F.2d at 817 n. employment pretext."), verse denied, action was a cert. - -, - 125 L.Ed.2d (1994). L.Ed.2d 72 (1993). majority 11. The buttresses its conclusion cit- op. ing previously maj. 13. See at 542. “several ADEA cases decided accompanied by suspicion employed permissive of have its inference stan if disbelief is together mendacity) may, with the ele- LeBlanc v. Am. dard. See Great Ins. (1st Cir.1993) suffice to (quoting ments F.3d discrimination, ... intentional stating show “[s]uch [of was correct when it Appeals the Court pretext], coupled with elements of that, rejection, upon such ‘no addi- noted (and, course, employee’s prima facie case proof required.’ tional of discrimination (or not) evidence), any may other lead — (citation employer to infer the factfinder that the has at-, at 2749 U.S. 113 S.Ct. discrimination”), omitted).14 engaged in intentional majority’s cert. I the conclu — denied, -, 1398, 128 Explaining that the was enti sion. (1994); only permissive Holy a inference of dis L.Ed.2d 72 DeMarco v. tled Cross crimination, one, Sck, (2d Cir.1993) mandatory 166, High not a was a nec 4 F.3d 170 (“Proof essary part holding. of the See Connecticut provided has the a Doehr, 28, 2105, 2122, 1, 111 501 U.S. S.Ct. permits false reason for its action the finder (1991) C.J., (Rehnquist, 1 con 115 L.Ed.2d of fact to determine that the defendant’s curring) (defining dicta as a court’s “dis by improper actions were motivated an dis hypothetical abstract and situa of] intent, criminatory compel cussion but does not such it”); also Black’s Law tions not before see Co., finding.”); Coplay a Seman v. Cement 1990) (6th Dictionary (defining 454 ed. dicta (3d Cir.1994) (“Hicks15 428, 26 F.3d 433 judge “[o]pinions as of a which do not em teaches, though, rejection employ of the body the resolution or determination of the proffered nondiscriminatory er’s reason will specific “[expres the court” and case before permit the trier of fact to infer the ultimate opinion go beyond sions court’s which the discrimination, long fact of intentional so as court”). Elucidating proper facts before the discrimination.”); finding there is a Man applied on standard to be remand was nei Co., zer v. Diamond Shamrock Chem. 29 Instead, hypothetical. ther abstract nor (6th (“Hicks Cir.1994) 1078, F.3d 1083 clari specific of the assisted the resolution only employer’s fied that the effect the go any and it did not further than the facts nondiscriminatory explanation is to convert Indeed, Ap before the court. the Court of upon the inference of discrimination based peals accept prior on remand declined to plaintiffs prima facie case from a manda holding trial court’s of no discrimination and draw, tory jury one which the must to a very remanded for consideration of the lan draw, permissive jury may provided one the guage Mary’s Hicks v. stated above. St. jury employer’s explana that the finds the (8th Center, 2 Honor F.3d 266-67 belief.”); ‘unworthy’ tion Anderson v. Bax 1993) (quoting language the above and re Corp., ter Healthcare 13 F.3d 1123-24 manding parties “because neither the nor the (7th Cir.1994) (“The explicitly [Hicks ] Court opportu district court had a full and fair has plaintiff may prevail states that in a nity apply newly , Court’s by establishing prima discrimination case scheme”). analytical clarified by showing employ facie case and decided, Mary’s proffered nondiscriminatory Since St. six other er’s reasons adopted specific language this discharge factually Circuits have her demotion or Garrett, holding false.”); important Mary’s Washington as an of St. 10 F.3d (1993); cases). Mary’s pre-Sf. (collecting 14. St. is consistent with our 419 id. at 817 n. 24 Mary's allowing jury to infer fact of cases given To the extent the instruction below discrimination from evidence intentional estab arguably departed prior from our cases allow- lishing plaintiff's prima proof facie case ing juiy solely to infer from discrimination proffered that the defendant's reason for its ac proof pretext, any Guiberson Oil waived claim E.g., pretextual. Lilly tion was Moore v. Eli & objecting juiy charge of error (5th Cir.) (noting that "if Inc., Reynolds, below. See v. Dean Witter Alford employ is able to demonstrate that the (5th Cir.1992). facially legitimate, non-discriminatory er's rea pretext, son for its action inference created Hicks, Many Mary's, cases use than rather facie case could well be the basis as the short form. plaintiff”), favorable verdict for the cert. denied, - U.S. -, L.Ed.2d Cir.1993) (“[A]s relative, finding Mary’s and a of intent to thwart the St 1421, 1438 pension vesting plaintiffs case was not au- in a Title VII the factfinder recognizes, plain- tomatically an intent to discriminate on the discrimination to infer is entitled showing age. Paper, case and of a basis of See Hazen tiff’s more-”). In- anything (finding “age pretext without distinct”). “[e]very circuit deed, analytically years Manzer states of service are ease, however, impact of Hicks to address the In this Rhodes did not seek to court submissibility employment that, discrimination prove wanted to de- because Guiberson benefit, this same conclusion.” has reached prive cases him of a Guiberson must have Thus, quoted if lan- Instead, discriminatorily. F.3d at 1083. even acted dicta, circuit courts were guage sought prove since St. precise issue faced with specifically age. of his In this him because language. followed this case, therefore, have jump from the correlative age some other factor to discrimination majority attempts to discard St. also necessary. Paper disallowed is not Hazen Paper Big v. by citing Hazen Co. Mary’s 16 holding Paper Consequently, the of Hazen authority binding for the more gins as majority’s conclusion. does not mandate the disagree. I Again, of this case. resolution majority states that: “St. Initially, Moreover, Paper actually supports Hazen Title case and Mary’s of course a VII majority holding in ease. Since the Paper is an ADEA Hazen ignores. Paper, In Hazen while the Su- ease, we believe is an ADEA case before us preme held that no automatic connec- Court relevant and de Paper is more that Hazen years age dis- tion between of service and Mary’s.” than St. to this decision terminative existed, years held that crimination it also majority’s charac maj. op. at 544. The See support could nonetheless an service infer- fact that Mary’s ignores the terization of St. pre- age “We do not ence of discrimination. VII, after Title ADEA was modeled an who possibility clude the analysis applies to both statutes.17 the same particular pension targets employees with a Indeed, on several Paper itself relies Hazen employ- assumption that these status on the Paper Accordingly, Hazen cases.18 Title VII thereby engages in likely older ees are to be equally applicable to ei Mary’s are and St. Id.; see also id. at age discrimination.” an ADEA case. Title VII or (“[Ijndirect ther a -, 1708 113 S.Ct. at support to liabil- this kind well suffice Further, majori- although agree I [pretext].”).19 ity plaintiff also shows if the reasoning, I Paper’s ty’s of Hazen recitation Thus, Paper consistent with St. Hazen to this case. what relevance it has cannot see that, Mary’s in a conclusion of discrimi- while plaintiff claimed that Paper, In Hazen permitted. required, it is nation is not him deprive of his employer’s decision him by terminating constituted pension C Court, of the ADEA. violation analysis majority’s states, Lastly, question I majority correctly held that as the First, as discussed necessarily post-St cases. cor- of years of service are not 711, Aikens, — 1701, 16. -, 103 S.Ct. v. 460 U.S. L.Ed.2d Governors S.Ct. 123 U.S. 113 (1993). 1478, (1983); Constr. 338 Furnco 75 L.Ed.2d 403 2943, Waters, 567, 57 Corp. 98 S.Ct. 438 Indus., Inc., PPG 5 F.3d See Bodenheimer v. 17. (1978); Team Bhd. 957 International L.Ed.2d Cir.1993) ("The 955, (5th Fifth Circuit n. 4 957 States, 324, 431 U.S. 97 sters v. United procedural adopted Mary's road ... the St. has 1843, (1977); and McDonnell 52 L.Ed.2d 396 cases.”); map v. J.C. ADEA see also Fields Green, 792, Corp. 93 S.Ct. Douglas 411 U.S. (5th Cir.1992) Penney n. 2 (1973), all of which Green, (referring Douglas Corp. v. to McDonnell 792, cases). Title VII 93 S.Ct. 36 L.Ed.2d 411 U.S. case, (1973), for an ADEA a Title VII as the basis Airlines., Inc., analysis); Bienkowski v. American eventually so that remanded 19.The Court Cir.1988) (adapting F.2d if the Appeals determine Court of could context). Douglas to ADEA McDonnell at-, 113 S.Ct. proved Id. this inference. - U.S. at -, (relying at 1706 18. See on, example, States Postal Serv. Bd. United dissent, post-£i. Mary’s any weight majority’s in this cases additional rea- earlier question directly dealing soning. with the at issue interpretation of this case follow a different Lastly, question majority’s I use of majority. Mary’s than that stated Corp., Anderson v. Baxter Healthcare

Also, majority those cases that the cites (7th Cir.1994), support F.3d 1120 of its not, support of its conclusion do when viewed Mary’s language contention that the St. need entirety, majori- in their lend credence to the followed,24 expressly not be when Anderson ty’s conclusions. adopts language. acknowledging After Indus., Inc., Bodenheimer v. PPG rejected judg- that Hicks an entitlement (5th Cir.1993),20 and Durham v. Xerox ment as a matter of law for of a (10th Cir.1994), Corp., 18 F.3d 836 cert. de pretext, facie case and Anderson continues: — nied, logical question (1994),21 The next is whether the ques L.Ed.2d - never reach the is, plaintiff may prevail, automatically as a tion issue whether a law, plaintiffs prima plus proof pre through facie case matter of but submission of factfinder, text alone can suffice factfin- her case to the ultimate under is, der’s determination discrimination. such [that circumstances cases, In both of these failed to plus pretext]. case Bodenheimer, prove pretext. 5 F.3d at 958 Hicks answers this the affir- (requiring plaintiff “produce sufficient evi explicitly mative. The Court states dence to that [defendant’s] establish reasons plaintiff may prevail in a discrimina- ” pretexts age were discrimination by establishing prima tion case a facie case not”); Durham, concluding that “he did by showing employer’s prof- (“Without proof pretext F.3d at 840 or nondiseriminatory fered reasons for her intent, discriminatory direct evidence of Dur discharge factually demotion or false. ham cannot meet her ultimate burden of discrimination.”). proving Thus, intentional Moreover, 13 F.3d at 1123-24.25 Anderson’s question neither case reaches the for which holding proven that “even if Anderson had majority Moreover, support. seeks its reason, employer’s perfor- stated Durham, in finding pretext, lack of uses the mance, pretext, was a and that had Mary’s language explain why failure to costs, salary been to reduce such prove pretext permit would not a factfinder discrimination,” facts would not establish to find intentional discrimination. 18 F.3d at maj. op. nothing see to do with 840.22 Instead, the standard. the hold- ing plaintiffs related to provide failure to Corp., Mitchell v. Data Gen. F.3d 1310 (4th Cir.1993), proof supporting an inferential another case cited connection the ma- jority,23 salary between cost reduction also fails to address the dis- Thus, issue in in crimination. 13 F.3d at because the 1125-26. prove support upon majority Mitchell prima failed even to which the in this case case. Consequently, actually Id. at 1317. reasoning like the relies undercuts its previous cases, two Mitchell does not lend the foundation of its decision. maj. op. 20. See suggest although at 542. 25.The Seventh Circuit did plus pretext facie case would suffice to discrimination, finding of intentional maj. op. 21. See at 542-43. plaintiff might present "the be well advised to discrimination, additional because majority correctly 22. The states that Durham required the factfinder is not to find in her favor Mary's language, neglects cites the St. but it simply because she establishes a facie case explain why the reason the Tenth Circuit uses employer's proffered and shows that the reasons language. maj. op. See at 543. Anderson, are false.” 13 F..3d at 1124. The majority’s insistence that Rhodes' case is auto- maj. op. 23. See at 543. matically insufficient without this additional evi- dence is the fundamental flaw in its rationale maj. op. compels See at 543. me to dissent. IV , , , , ,, j. T I stated, respectfully dis- reasons

For the

sent. CORP., CREDIT

WESTINGHOUSE Party Plaintiff,

Plaintiff, Third ORLEANS, engines, her NEW

M/V rem, etc., tackle, apparel, et Defendants,

al., Machinery, Inc., &

Kenner Marine Defendants-Appellees, al.,

et DIESEL, INC., and

POWER SYSTEMS Defendants, Marine, Ltd., Third

Vener Plaintiffs-Appellees,

Party SERVICE, INC., MARINE

DOUGLAS Party Defendant,

Third Fleet, CO., JNT

ATLAS ASSURANCE Party

Inc., Third Defendants-

Appellants.

No. 91-4697. Appeals, Court of

United States

Fifth Circuit. 23, 1994.

Nov. 3, 1995.

Rehearing Denied Jan. Orleans, Chenault, IV, T. New

Alanson LA, appellants. LA, Orleans, Koerner, Jr., New R.

Louis Marine, Ltd. Systems and Vener for Power Waits, Culver, Jr., Randolph J. William S. P.C., Kessenich, Cobb, Emmett, &Waits Marine, LA, Orleans, et al. for Kenner New

Case Details

Case Name: Rhodes v. Guiberson Oil Tools

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 23, 1994

Citation: 39 F.3d 537

Docket Number: 92-03770

Court Abbreviation: 5th Cir.