39 F.3d 537 | 5th Cir. | 1994
Lead Opinion
Calvin Rhodes sued his former employer, Guiberson Oil Tools (“Guiberson Oil”), alleging that Guiberson Oil terminated him on account of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1988) (“ADEA”). The parties stipulated that a magistrate judge would decide all issues except liability. The liability issues were tried to a jury who found that Guiberson Oil had discriminated against Rhodes. Guiberson Oil moved for judgment as a matter of law both before and after the jury verdict. The magistrate judge dismissed Rhodes’ case with prejudice because Rhodes, prior to bringing this action, failed to timely file a charge with the Equal Employment Opportunity Commission. Rhodes appealed the dismissal, contending that his suit was not time-barred. A panel of this court agreed, reversed the magistrate judge’s decision setting aside the jury verdict, and remanded for a determination of damages. See Rhodes v. Guiberson Oil Tools Din, 927 F.2d 876 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 198, 116 L.Ed.2d 158 (1991) (Rhodes I). In so holding, the panel specifically noted that the question of whether the evidence supported the verdict was not before it. Id. at 887. After remand, the magistrate judge held a hearing on damages and determined that Rhodes had sustained damages in the amount of $188,866.70. Guiberson Oil renewed its motion for judgment as a matter of law on lack of evidence but the magistrate denied such motion. Guiberson Oil now appeals both the jury’s finding of liability and the magistrate judge’s calculation of damages. Rhodes cross-appeals both the jury’s finding that Guiberson Oil did not willfully violate the ADEA and the magistrate judge’s calculation of damages. Finding the evidence of discrimination to be insufficient, we reverse the judgment based on the jury verdict, and render judgment for Guiberson Oil.
I
The critical issue in dispute on this appeal is sufficiency of the evidence to support a jury finding of age discrimination. That issue calls upon us to exercise our appellate review responsibility to determine whether there was sufficient evidence upon which a reasonable jury could rationally conclude that Guiberson Oil discriminated against Rhodes on the basis of age. The testimony presented at trial showed the following.
From 1955 until May 1986, Rhodes sold wireline products for the Atlas Óivision of Dresser (Atlas) and the corporate predecessors of that division. With the collapse of oil prices in the early 1980’s and the resulting sharp decline in domestic oil drilling and production, Atlas along with many other companies in the oil field services industry experienced severe economic difficulties. In response to these pressures, Atlas reduced the size of its sales force from 70 to 25 through major layoffs occurring in 1984, 1985, and early 1986. In each round of these layoffs, Atlas attempted to retain the strongest performers and to let go the least productive personnel. Each time, the Company cut the bottom five percent of performers. Rhodes survived each of these prior reductions in personnel. However, in March 1986, faced with the need to reduce sales forces
Next, it is important to note what is not in the record. There is no testimony of any kind that Rhodes’ age or the age of any other employee was ever mentioned or discussed as a decision-making factor. There is no testimony from any fellow employee that Guiberson Oil’s management personnel talked about Rhodes’ age. There is no documentary evidence indicating any internal memorandum of Guiberson Oil which discussed Rhodes’ age. There was no rebuttal testimony by Rhodes that could have established that Guiberson Oil had a pattern or practice of reducing the sales force by terminating older employees. There was no rebuttal testimony from Rhodes that the 32-year old technical representative was not actually terminated at the same time as Rhodes. Finally, Rhodes did not rebut testimony from Snyder, a sales manager above Rhodes, that Rhodes and the 32-year old “technical representative” were terminated “because they were his least productive employees.” In support of his claim that he had been terminated “because of his age,” Rhodes offered only the following:
1. After Rhodes was terminated, Guiber-son Oil hired a 42-year old1 sales representative to cover sales in the New Orleans area;
2. Guiberson Oil paid this 42-year old $3,000 per month, which was approximately $2,000 per month less than Rhodes had been making; and
3. Alfred Lee Snyder (a sales manager below Givens and above Rhodes) testified that Givens stated once that he could hire two younger salesmen for what some of the older salesmen were*541 costing. Snyder later retracted “younger” and clarified that he said two “new” salesmen for what some of the “other” salesmen were costing, but it was Snyder who offered the statement as the only reference made to age.
The first two items of proof offered by Rhodes in support of his discrimination claim simply completed the prima facie case. The third item of his proof was not spoken with Rhodes in mind and makes no reference to either Rhodes’ age or the age of any “other” employees who were being over paid. Surely there is no rational basis for inferring discrimination on the basis of age from such generalized comments as this. In short, our review of the evidence in this case leads us to conclude that there is no evidence or testimony which shows any connection between Rhodes’ age and the decision to terminate his employment.
In his briefs, Rhodes attempts to argue away the insufficiency of the evidence problem by reiterating the essentials of his prima facie proof and by repeated references to language used by the other panel of this court who considered the interlocutory appeal in Rhodes I. Rhodes argues that these statements indicate that the severance report was “false” and that the reasons offered by Guiberson Oil therein were completely misleading” and that consequently Guiberson Oil’s reasons were “pretextual.”
The Rhodes I opinion, however, expressly stated that the panel had not addressed the issue of the sufficiency of the evidence, and therefore, whatever conclusions that panel reached are clearly dicta as to that issue in this appeal. We are at a total loss to understand how dicta in an opinion on interlocutory appeal, which made no attempt to evaluate the evidence considered by the jury, could have any bearing whatsoever on the question of the sufficiency of the evidence before the jury in this appeal.
During pendency .of this appeal, the Supreme Court decided St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). By Rule 28(j) letter briefs, both sides furnished copies of that decision with their respective arguments as to how that decision should impact our determination of this case. Like many 5-to-4 decisions of the Supreme Court, the opinion in St. Mary’s is not easy to analyze, but from our view, that opinion breaks down into the following primary and secondary holdings:
A. The primary holding of St. Mary’s is that an employee plaintiff is not entitled to judgment as a matter.of law, even though the factfinder concludes that the reasons for his discharge proffered by*542 the employer were not the real reasons for such discharge. St. Mary’s, — U.S. at-, 113 S.Ct. at 2751.
B. The secondary holdings of St. Mary’s were:
(1) Once a Title VII ease has been fully tried to the factfinder, the McDonnell Douglas/Burdine framework, regarding prima facie case and the order and burdens for production of evidence, becomes irrelevant and disappears; and a case involving a claim of discrimination should then be treated at the trial and appellate level just like any other case calling for an ultimate determination of fact. Id. at-, 113 S.Ct. at 2753.
(2) The ultimate factual determination in a Title VII case is: “Did the employer take an action [i.e. failure to hire, failure to promote or discharge] by reason of a prohibited factor [i.e., sex, race, religion, etc.]?”. Id. at-, 113 S.Ct. at 2749.
(3) The burden of proof and persuasion on that ultimate fact remains at all times on the plaintiff. Id. at-, 113 S.Ct. at 2749.
C. In addition, there were two other subordinate holdings which were material to the court’s conclusion in St. Mary’s:
(1) The term “pretext” means “pretext for discrimination”. To establish that a proffered reason for an action taken by an employer was “pretext for discrimination,” the plaintiff must show both that the employer’s proffered reason was false and that discrimination was the real reason. Id. at-, 113 S.Ct. at 2752.
(2) Finally, the language of Burdine that a plaintiff may show discrimination “indirectly by showing that the employer’s proffered explanation is unworthy of credence” is dictum, which is inconsistent with other language in Burdine and McDonnell Douglas. To the extent that such language suggests that “disproof of the defendant’s reason [is] a totally independent, rather than an auxiliary, means of proving unlawful intent,” such language is “an inadvertence.” Id. at-, 113 S.Ct. at 2753.
We have described in some detail our conclusions as to these holdings of the majority opinion in St. Mary’s because that decision makes two changes which are critically important to the resolution on this ease:
(a) first, whatever the term “pretext” may • have meant in the past, under St. Mary’s, it can now only mean “pretext for discrimination;” and
(b) second, when read as a whole and considering the controversy between the majority opinion and the dissent in St. Mary’s, it is clear that the Supreme Court ruled against the theory of “pretext only” under which a Title VII plaintiff automatically wins if she successfully shows that the reasons proffered by her employer for her termination are factually false.
In this case, Rhodes and our colleague in dissent would urge us to conclude that there is yet a third position articulated within the majority decision in St. Mary’s by the language quoted in Rhodes’ 28(j) letter.
This case is not the first time our circuit and other circuits have addressed the impact of St. Mary’s on later cases. In Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.1993), we held that St. Mary’s requires a plaintiff at the summary judgment stage to tender some evidence that age was a determinative factor in the employment decision, and that plaintiffs could not rely solely on eonclusionary allegations trying to discredit the employer’s reasons. Bodenheimer, 5 F.3d at 959. Similarly, in Mitchell v. Data General Corp., 12 F.3d 1310 (4th Cir.1993), the Fourth Circuit held that the employer’s conclusory statements about performance, which were not expressly age-related, were not sufficient to raise a fact issue as to the employer’s legitimate non-discriminatory explanation because there was no direct evidence indicating that plaintiff was discharged based on age. Mitchell, 12 F.3d at 1318 (affirming summary judgment in favor of the employer). Additionally, in Durham v. Xerox Corporation, 18 F.3d 836 (10th Cir.1994), the Tenth Circuit cited St. Mary’s for the proposition that when the employer tenders proof of a legitimate non-discriminatory reason for not promoting the employee, “the presumption of discrimination from the employee’s prima facie case simply drops out of the picture” and the trier of fact must then decide the ultimate question of intentional discrimination. Although the Tenth Circuit cited the very same St. Mary’s language relied upon by Rhodes in his 28(j) letter, it nonetheless concluded that summary judgment was still appropriate because the employee had not offered sufficient evidence to support a finding that the employer’s stated reason was a pretext for discrimination. Id. at 840 (affirming summary judgment in favor of the employer).
Finally, in Anderson v. Baxter Health Care Corporation, 13 F.3d 1120 (7th Cir.1994), the Seventh Circuit recognized that after St. Mary’s, an ADEA plaintiff is not entitled to judgment as a matter of law simply because she proves her prima facie ease and then shows that the employer’s proffered reasons for her discharge are false. Anderson, 13 F.3d at 1125-26. In Anderson, the employer claimed it had discharged Anderson based on poor performance. The Court held that even if Anderson had proven that the employer’s stated reason, performance, was a pretext, and that plaintiff had been discharged to reduce salary, such facts would not establish age discrimination. Id.
The employee in Anderson also contended that the employer committed age discrimination by firing him simply to reduce salary costs; and cited a previous decision in the Seventh Circuit which supported that contention. However, the Seventh Circuit expressly recognized that that prior decision had, in effect, been overturned by the unanimous decision of the Supreme Court in Hazen Paper Company v. Biggins, — U.S. -, 113 S.Ct. 1701,. 123 L.Ed.2d 338 (1993), in which the Supreme Court held that “there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age.” Hazen Paper, — U.S. at-, 113 S.Ct. at 1705. The Supreme Court decided Hazen Paper on April 20, 1993, and decided St. Mary’s on June 25, 1993. In Hazen Paper
In Hazen Paper, Biggins (the employee) sued his employer (Hazen Paper) under ADEA and ERISA and asserted pendent claims in tort and contract under state law. As in this case, Hazen Paper was fully tried to a jury. The jury found that Hazen Paper violated the ADEA and awarded Biggins $560,775 in damages.
“Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus, it is incorrect to say that a decision based on years of service is necessarily ‘age based’ ”. Id. at-, 113 S.Ct. at 1707.
Accordingly, in Hazen Paper the Supreme Court reversed the ADEA claim and remanded the ease to the Circuit Court to “reconsider whether the jury had sufficient evidence to find an ADEA violation.” That is the very task which we now have appropriately addressed here; and in our judgment, Rhodes presented no evidence or testimony from which a jury could rationally conclude that age “had a determinative influence” on Guiberson Oil’s decision to terminate him.
We recognize that our dissenting colleague can find opinions from other circuits which support his contentions as to the meaning of St- Mary’s or more specifically as to the concept that the language quoted in footnote 5, supra, was intended to fashion some new hybrid test as to what was required to show discrimination.
A. Summary judgments for the employer would be eliminated in Title VII and ADEA suits in eases where even though there was absolutely no evidence whatsoever of discriminatory animus or actions the employee plaintiff establishes his prima facie case and raises a question of fact as to the employer’s non-discriminatory explanation; and
B. If the case is then tried on its merits and the factfinder determines that the employer’s non-discriminatory reason is not believable, the employee is entitled to judgment which cannot be set aside for insufficiency of the evidence even though the trial record is absolutely devoid of any evidence or testimony which relates to discriminatory actions or animus.
In our view, these results are the same as would have occurred if the minority view in St. Mary’s had in fact been adopted by the majority. We proceed on the assumption that the majority in St. Mary’s did not inadvertently let the cat out of the bag.
Accordingly, we REVERSE the decision of the magistrate judge to deny Guiberson Oil’s motion for judgment as a matter of law and render judgment in favor of Guiberson Oil. In view of this decision, the other points of error raised on appeal by Guiberson Oil and in his cross-appeal by Rhodes are moot.
. This “replacement” was over 40 and therefore within the protected class but was younger than Rhodes.
. Our colleague in dissent castigates us for our detailed review of what is and what is not in the testimony before the jury. We note however that Rhodes did not point out in his brief and the dissent does not mention any other evidence, direct or indirect, other than the matters identified in our review of the evidence as being relevant to a review of sufficiency of the evidence claim. Furthermore, there were no conflicts in the testimony where the jury’s credibility choice would be binding.
. See Moore v. Eli Lilly & Co., 990 F.2d 812, 817 n. 24 (5th Cir.1993) (listing cases in which plaintiffs failed to meet their burden of proof, including Waggoner v. City of Garland, 987 F.2d 1160 (5th Cir.1993); Guthrie v. Tifco Indus., 941 F.2d 374, 378 (5th Cir.1991); Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813-14 (5th Cir.1991); Hanchey v. Energas Co., 925 F.2d 96, 98-99 (5th Cir.1990) (all affirming summary judgment in favor of defendant); 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, 118 (5th Cir.1993); Laurence v. Chevron, U.S.A. Inc., 885 F.2d 280, 284-85 (5th Cir.1989) (both reversing jury verdict in favor of plaintiff)).
.The dissent echoes Rhodes' arguments, particularly as to what is called "discrepancies between Rhodes’ severance report and Guiberson’s trial justification for his discharge.” We see no discrepancy whatsoever between the language of the severance report indicating that Rhodes was terminated because of a "reduction in force” and the testimony presented by Guiberson as to the history of reductions in force which took place in the offices in which Rhodes was employed and ultimately affected Rhodes. Likewise, the language of the severance report indicating that Guiberson would "consider rehiring” Rhodes is simply a polite way of confirming that the employee was not fired for misconduct.
. That position is that the district court is compelled to submit the case to the jury once plaintiff creates a fact issue as to whether the employer's asserted reason is true and is based on the following language: "The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination, ... and the Court of Appeals was correct when it noted that, upon such rejection, 'no additional proof of discrimination is required.' ” St. Mary's,-U.S. at-, 113 S.Ct. at 2749.
. The holding by the trial court in St. Mary's was: "Plaintiff has succeeded in proving that the violations for which he was disciplined were pretextual reasons for his demotion and discharge. Plaintiff has not, however, proven by direct evidence or inference that his unfair treatment was motivated by his race." See Hicks v. St. Mary’s Honor Center, 970 F.2d 487, 492 (8th Cir.1992) (internal corrections omitted).
. The jury also found for Biggins on his ERISA claim and some of his state tort and contract claims.
. With all due respect to our colleague, the six cases cited in his dissent do not all support his position. Of the six cases cited by the dissent, four affirmed judgment in favor of the employer and one reversed judgment in favor of the employee. At least one, LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.1993), clearly holds that the test governing when an ADEA case is entitled to go to the jury is not whether the employee has created a fact issue as to the employer's articulated reason but whether there is evidence from which a reasonable juror could find that the employment decision was motivated by age animus. Id. at 842-43; see also Marcantel v. Dep’t of Transp. and Dev., 37 F.3d 197, 201 (5th Cir.1994) (St. Mary's settled the issue that "the 'pretext-only' doctrine is not enough; even if the employee proves that the employer's nondiscriminatory reason is pretextual, the plaintiff must prove that an unlawful discriminatory intent motivated the employer's action”); Seman v. Coplay Cement Co., 26 F.3d 428, 433 (3d Cir.1994) (St. Mary’s "requires that once an employer has met its burden of production by coming forward with a nondiscriminatory business reason for discharging a protected employee, the plaintiff-employee must then prove that the business reason was pretextual and that he was intentionally discriminated against on the basis of age. Proof of one without the other will not
Concurrence Opinion
specially concurring.
I join in Judge DeMoss’ opinion, but I write separately because I am troubled by the instructions tendered to the jury in this case. The jury was told:
Though the defendant claims a legitimate business reason for the plaintiffs discharge, you may still find for the plaintiff if you find that he has proven by a preponderance of the evidence, that the reasons stated by the defendant were not the true reasons for the plaintiffs discharge, or that the plaintiffs age more likely than not was a determining factor in his discharge. (Emphasis added.)
This instruction is inconsistent with the Supreme court’s opinion in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and ought not be given. I read St. Mary’s to say that a jury cannot find liability for the plaintiff solely because the defendant gave a false reason at the time of discharge. This is what I believe the Supreme Court meant when it said that “nothing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its actions was not believable.” St. Mary’s, — U.S. at -, 113 S.Ct. at 2751.
Nothing in law necessarily prevents a jury from rejecting the proffered reason at trial and inferring “the ultimate fact of intentional discrimination.” Id. at -, 113 S.Ct. at 2749. Whether the “lie” serves as a proxy for discrimination necessarily depends on the context in which the “he” is uttered. See id. at -, 113 S.Ct. at 2752 (employer’s proffered reason is not a pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason”) (emphasis in original.) The basis for this is simply a recognition that employers rarely tell employees that they are being discharged for being lousy workers. Employers often “lie” in different ways for legitimate business reasons, one of which is to soften the blow to the employee by saying that there is a reduction in force or
The jury here should have been instructed that it may hold the defendant liable only if it finds that the plaintiff has proven that the plaintiffs age more likely than not was a determining factor in the discharge. The jury also should have been instructed that it may make its usual decisions about whom to believe and that if it finds that the defendant proffered false reasons for the plaintiffs discharge at trial, it may (but is not compelled to) infer from the context of the lie and the other evidence the ultimate fact that age was a determining factor in the discharge.
Dissenting Opinion
dissenting:
Because the majority 1) fails to view the evidence in the light most favorable to the jury verdict, 2) fails to articulate and employ the proper appellate standard of review, and 3) fails to analyze and apply Supreme Court precedent properly, I respectfully dissent.
I
Calvin Rhodes began his employment with Guiberson Oil and other divisions of Dresser Industries in 1955 as a salesman of oil-industry-related products.
Rhodes subsequently sued Guiberson Oil for violating the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988) (“ADEA”). A jury found that Guiberson Oil terminated Rhodes from his employment because of his age, but also found that Guiber-son Oil had not willfully violated the ADEA.
II
A
Guiberson Oil, which moved for a directed verdict both at the close of the plaintiffs case-in-chief and at the close of all the evidence, contends that the evidence is insufficient to support the jury’s finding of age discrimination. Guiberson Oil thus argues that the magistrate erred in not granting its motion for judgment notwithstanding the verdict (“JNOV”).
the Court should consider all of the evidence — not just that evidence which sup*547 ports the non-mover’s ease — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion[] is proper. On the other hand, if there is substantial evidence opposed to the motion! ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion!] should be denied.... [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc).
B
The ADEA makes it “unlawful for an employer ... to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie ease of age discrimination, the plaintiff “must demonstrate that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of the discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993). If the plaintiff establishes a prima facie case, he creates a presumption of discrimination, Texas Dept. of Community Aff. v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), and the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the challenged action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The defendant may meet this burden by presenting evidence that, “if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employ-St. Mary’s Honor Ctr. v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). If the defendant meets its burden, the presumption raised by the plaintiffs prima facie case disappears. Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. at 1095 & n. 10. The plaintiff then has the opportunity to demonstrate, through presentation of his own ease and through cross-examination of the defendant’s witnesses, that the proffered reason was not the true reason for the employment decision, and that age was. St. Mary’s, — U.S. at -, 113 S.Ct. at 2747; Bodenheimer, 5 F.3d at 957. If he succeeds in doing so, “[t]he fact-finder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie ease, suffice to show intentional discrimination.” St. Mary’s, — U.S. at -, 113 S.Ct. at 2749. On appeal, Guiberson Oil conceded that Rhodes had established a prima facie case.
On Rhodes’ severance report, Guiberson Oil indicated that Rhodes was discharged .because of a reduction in work force and that it would consider rehiring Rhodes. The evidence adduced at trial, however, showed that these reasons were false: Rhodes’ position was not eliminated as a reduction in force. Moreover, contrary to the statements contained in the severance report, Guiberson Oil’s defense at trial was that Rhodes was discharged because of his poor work performance. This contradiction between the false reasons given on the severance report and the justification presented at trial could reasonably lead a jury to disbelieve Guiberson’s
Additionally, that Guiberson Oil deliberately misled Rhodes concerning the circumstances of his discharge and that Guiberson Oil hired a younger person to replace Rhodes shortly after his discharge constitute relevant evidence of intentional age discrimination. See, e.g., Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1377-78 (5th Cir.1992) (holding that evidence that plaintiff was replaced with younger person and that the employer’s proffered reason for discharge— that it fired plaintiff for poor job performance — was pretextual constituted evidence of intentional age discrimination). Accordingly, I would hold that the evidence sufficiently supported the jury’s verdict, and the magistrate correctly refused to grant Guiber-son Oil’s motion for JNOV or its motion for a new trial.
Ill
A
The majority, however, finds Rhodes’ evidence insufficient to support the jury’s finding of intentional discrimination. My first disagreement with the majority concerns its review of the evidence. As an appellate court, we do not substitute our own view of the weight of the facts for that of the jury. Instead, we view the evidence in the light most favorable to the jury verdict. Boeing Co., 411 F.2d at 374-75. Because the jury found in favor of Rhodes, we view the evidence in the light most favorable to Rhodes. See id. The majority has failed to do this.
Moreover, our proper appellate function is not to reweigh the evidence, but only to determine if there was enough to support the jury’s finding. See id. (“[I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences and determine the credibility of witnesses.”). Therefore, the question is not whether we believe that Rhodes “undermine[d] the legitimate business reason proffered by Guiberson,” maj. op. at 540, but whether the jury could reasonably have disbelieved Guiberson’s evidence. Similarly, although the majority elaborates on “what is not in the record,” see maj. op. at 540, whether certain items are missing from the evidence presented is irrelevant if a jury could nonetheless find intentional discrimination. Rhodes need not have had an overwhelming case, only a sufficient one. Moreover, much of evidence that the majority castigates Rhodes for lacking is direct evidence,
The majority limits the evidence it considers favorable to Rhodes to three items.
B
The majority also fails to analyze and apply Supreme Court precedent properly. After stating various portions of the holding in St. Mary’s Honor Center v. Hicks,
The factfinder’s disbelief of the reasons put forward by the defendant (particularly*550 if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination, ... and the Court of Appeals was correct when it noted that, upon such rejection, ‘no additional proof of discrimination is required.’
— U.S. at-, 113 S.Ct. at 2749 (citation omitted).
Since St. Mary’s was decided, six other Circuits have adopted this specific language as an important holding of St. Mary’s and have employed its permissive inference standard. See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.1993) (quoting St. Mary’s and stating that “[s]uch evidence [of pretext], coupled with the elements of the employee’s prima facie case (and, of course, any other evidence), may (or may not) lead the factfinder to infer that the employer has engaged in intentional discrimination”), cert. denied, — U.S. -, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994); DeMarco v. Holy Cross High Sck, 4 F.3d 166, 170 (2d Cir.1993) (“Proof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant’s actions were motivated by an improper discriminatory intent, but does not compel such a finding.”); Seman v. Coplay Cement Co., 26 F.3d 428, 433 (3d Cir.1994) (“Hicks
The majority also attempts to discard St. Mary’s by citing Hazen Paper Co. v. Biggins
Further, although I agree with the majority’s recitation of Hazen Paper’s reasoning, I cannot see what relevance it has to this case. In Hazen Paper, the plaintiff claimed that his employer’s decision to deprive him of his pension by terminating him constituted a violation of the ADEA. The Supreme Court, as the majority correctly states, held that age and years of service are not necessarily correlative, and a finding of intent to thwart the vesting of the plaintiffs pension was not automatically an intent to discriminate on the basis of age. See Hazen Paper, — U.S. at -, 113 S.Ct. at 1707 (finding that “age and years of service are analytically distinct”). In this ease, however, Rhodes did not seek to prove that, because Guiberson wanted to deprive him of a benefit, Guiberson must have acted discriminatorily. Instead, Rhodes sought to prove that Guiberson discharged him specifically because of his age. In this case, therefore, the correlative jump from some other factor to age discrimination that Hazen Paper disallowed is not necessary. Consequently, the holding of Hazen Paper does not mandate the majority’s conclusion.
Moreover, Hazen Paper actually supports the holding in St. Mary’s that the majority ignores. In Hazen Paper, while the Supreme Court held that no automatic connection between years of service and age discrimination existed, it also held that years of service could nonetheless support an inference of age discrimination. “We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination.” Id.; see also id. at -, 113 S.Ct. at 1708 (“[Ijndirect evidence of this kind may well suffice to support liability if the plaintiff also shows [pretext].”).
C
Lastly, I question the majority’s analysis of post-St Mary’s cases. First, as discussed
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir.1993),
Mitchell v. Data Gen. Corp., 12 F.3d 1310 (4th Cir.1993), another case cited by the majority,
Lastly, I question the majority’s use of Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir.1994), in support of its contention that the St. Mary’s language need not be followed,
The next logical question is whether the plaintiff may prevail, not automatically as a matter of law, but through submission of her case to the ultimate factfinder, under such circumstances [that is, prima facie case plus pretext].
Hicks answers this question in the affirmative. The Court explicitly states that the plaintiff may prevail in a discrimination case by establishing a prima facie case and by showing that the employer’s proffered nondiseriminatory reasons for her demotion or discharge are factually false.
13 F.3d at 1123-24.
,, , , , T , j. For the reasons stated, I respectfully dissent.
. In order to properly exercise our appellate function, we view the evidence in the light most favorable to the jury verdict, that is, to Rhodes. See Boeing Co. v. Shipman, 411 F.2d 365, 374 — 75 (5th Cir.1969) (en banc).
. The parties stipulated that a magistrate judge would decide all issues except liability. Consequently, after the jury found that Guiberson Oil had discriminated against Rhodes, the magistrate judge dismissed Rhodes' case with prejudice because Rhodes, prior to bringing this action, failed to file a timely charge with the Equal Employment Opportunity Commission. Rhodes appealed the dismissal, contending that his suit was not time-barred. We agreed, reversed the magistrate judge’s decision setting aside the jury verdict, and remanded for a determination of damages. See Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876 (5th Cir.), cert. denied, - U.S. -, 112 S.Ct. 198, 116 L.Ed.2d 158 (1991) [hereinafter Rhodes /]. In so holding, we specifically noted that the question of whether the evidence supported the verdict was not before us. Id. at 878.
.This case was tried before the effective date of the 1991 amendments to the Federal Rules of Civil Procedure. Rule 50 now uses the term "judgment as a matter of law” for both a directed verdict and a JNOV.
. I.e., Guiberson conceded that (1) Rhodes was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was replaced by someone substantially younger within two months of his discharge.
.Compare Atkin v. Lincoln Prop. Co., 991 F.2d 268 (5th Cir.1993) (reversing jury verdict of age discrimination where defendant did not concede that plaintiff established prima facie case and plaintiff produced no evidence that defendant’s reason for terminating him was pretext for discrimination); Moore v. Eli Lilly Co., 990 F.2d 812 (5th Cir.) (upholding grant of summary judgment for defendant where plaintiff established prima facie case but failed to produce any evidence that defendant's explanation for its action was pretextual), cert. denied, - mU.S. -, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993).
. In fact, the majority’s recitation of the facts mirrors the statement of facts in Guiberson's brief almost verbatim. Compare maj. op. at 539-40 with Br. of Def.-Appellant at 4-7. Guiberson clearly did not construe the facts in its brief to favor Rhodes.
. See maj. op. at 540 (criticizing Rhodes for failing to provide evidence of discussions of his age by Guiberson management or other employees or documentation that Guiberson's decision related to his age).
. A plaintiff may use either direct or circumstantial evidence to prove a case of intentional discrimination. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d 403 (1983). Because direct evidence is rare in discrimination cases, a plaintiff ordinarily uses circumstantial ■ evidence and inferences therefrom to satisfy her burden of persuasion. Davis v. Chevron U.SA., Inc., 14 F.3d 1082, 1085 (5th Cir.1994) (applying inferential test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)).
. 1) Guiberson replaced Rhodes with a younger person; 2) Guiberson saved approximately $2,000 per month in salary costs by replacing Rhodes; and 3) “[o]n one occasion Jack Givens, a general manager, said to Lee Snyder, Rhodes' supervisor, that could 'hire two salesmen for what some of the others are costing me.’ " See maj. op. at 540.
. See Mitchell v. Data General Corp., 12 F.3d 1310, 1317 (4th Cir.1993) ("The evidence, however, that was offered to establish the prima facie case remains in the case, together with any evidence presented to show that the employer’s explanation was untrue or pretextual.’’); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.1993) (“[T]he trier of fact may consider, along with other evidence, the evidence put forward to show that the employer’s justification for its adverse employment action was a pretext."), cert. denied, - U.S. -, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).
. The majority buttresses its conclusion by citing “several ADEA cases decided previously in this circuit, [in which] it is clear that our circuit has not closed its eyes to situations in which this fundamental lack of evidence exists.” See maj. op. at 541 & n. 3 (citing Moore v. Eli Lilly & Co., 990 F.2d 812, 817 n. 24 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993)). What the majority apparently closed its eyes to is that the same footnote in Moore to which it cites indicates that this circuit has also frequently found that sufficient evidence in a plaintiff's case was not lacking. See Moore, 990 F.2d at 817 n. 24 (citing successful cases, including 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 v. 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 Ref., 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.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989); Uffelman v. Lone Star Steel Co., 863 F.2d 404, 407-08 (5th Cir.), cert. denied, 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989)). Indeed, Moore also indicates that the failed cases to which the majority refers are “smaller" in number. 990 F.2d at 817 n. 24.
. - U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
. See maj. op. at 542.
. St. Mary’s is consistent with our pre-Sf. Mary's cases allowing the jury to infer the fact of intentional discrimination from evidence establishing the plaintiff's prima facie case and proof that the defendant's proffered reason for its action was pretextual. E.g., Moore v. Eli Lilly & Co., 990 F.2d 812, 816 (5th Cir.) (noting 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”), cert. denied, - U.S. -, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993); id. at 817 n. 24 (collecting cases). To the extent the jury instruction given below arguably departed from our prior cases by allowing the juiy to infer discrimination solely from proof of pretext, Guiberson Oil waived any claim of error by not objecting to the juiy charge below. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir.1992).
. Many cases use Hicks, rather than St. Mary's, as the short form.
. — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993).
. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir.1993) ("The Fifth Circuit ... has adopted the St. Mary's procedural roadmap for ADEA cases.”); see also Fields v. J.C. Penney Co., 968 F.2d 533, 536 n. 2 (5th Cir.1992) (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case, as the basis for an ADEA analysis); Bienkowski v. American Airlines., Inc., 851 F.2d 1503, 1504 (5th Cir.1988) (adapting McDonnell Douglas to ADEA context).
. See - U.S. at -, 113 S.Ct. at 1706 (relying on, for example, United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), all of which are Title VII cases).
.The Court eventually remanded so that the Court of Appeals could determine if the plaintiff had proved this inference. Id. at-, 113 S.Ct. at 1708.
. See maj. op. at 542.
. See maj. op. at 542-43.
. The majority correctly states that Durham cites the St. Mary's language, but it neglects to explain the reason why the Tenth Circuit uses that language. See maj. op. at 543.
. See maj. op. at 543.
. See maj. op. at 543.
.The Seventh Circuit did suggest that although a prima facie case plus pretext would suffice to support a finding of intentional discrimination, "the plaintiff might be well advised to present additional evidence of discrimination, because the factfinder is not required to find in her favor simply because she establishes a prima facie case and shows that the employer's proffered reasons are false.” Anderson, 13 F..3d at 1124. The majority’s insistence that Rhodes' case is automatically insufficient without this additional evidence is the fundamental flaw in its rationale that compels me to dissent.