                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    November 29, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-41487
                        _______________________


                              HAZEL CONNER,

                                                     Plaintiff-Appellant,

                                  versus


                   HOECHST CELANESE CHEMICAL, INC.;
                                ET AL.,

                                                                Defendants,

                              CELANESE LTD.,

                                                      Defendant-Appellee.



            On Appeal from the United States District Court
         for the Southern District of Texas, Victoria Division
                         Docket No. 6:03-CV-49


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

PER CURIAM:*

             Hazel Conner appeals a grant of summary judgment to the

defendant Celanese Ltd. (“Celanese”) on her Age Discrimination in

Employment Act (“ADEA”) claim.          See 29 U.S.C. § 621 et. seq.

Although Celanese adduced legitimate, nondiscriminatory reasons for

its failure to promote Conner, Conner’s evidence that she was



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
clearly better qualified than the younger employee who was promoted

is sufficient to withstand summary judgment.            We therefore REVERSE

and REMAND for further proceedings.

                                 I.   BACKGROUND

            Conner began working at Celanese in May 1977, and worked

in various analyst positions in the laboratory for the Technical

Department until her retirement in February 2005.1                  Around May

2001, Celanese began reducing its workforce through a Voluntary

Separation Package program.           Conner refused the package, although

several other employees accepted it.               One of these employees,

Carolyn Griffith, was the lab’s Environmental Chemist (“EC”), a

higher-level position for which Conner had been trained.

            After Griffith’s retirement, Conner’s superior, Charles

O’Rear, decided not to replace the EC position, opting instead to

distribute the EC responsibilities between three other positions,

including a new role of Environmental Specialist (“ES”).                  The ES

was to assume part of the EC duties, as well as some of the

responsibilities      of   the   Traffic     Department,2   which   was    being

dissolved.      O’Rear assigned Kathy Wilson, an employee in the

Traffic Department, to the ES position.             Wilson is eleven years



      1
            Lab analysts are responsible for performing analyses of routine
process samples, finished product samples, and incoming raw materials, analyzing
storage tanks and outgoing shipments, and performing tests on wastewater samples.
      2
            The Traffic Department was responsible for packaging and shipping
samples, as well as ensuring compliance with Department of Transportation
regulations.

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younger than Conner and admitted that she had no laboratory or

analyst experience or knowledge prior to June or July of 2001 when

Celanese began training her for the ES position.

            Because Wilson received the ES position, Conner remained

in her prior shift-work analyst job, which paid less and had less-

desirable hours.       In addition to the lower salary, Conner claims

this caused her emotional pain, inconvenience, mental anguish, and

loss of enjoyment of life.

            On    April     19,     2002,      Conner     filed     an   employment

discrimination       charge    with     the    Equal     Employment      Opportunity

Commission,      alleging     violations      of   the   Age     Discrimination   in

Employment Act of 1967, the Americans with Disabilities Act,

42 U.S.C. § 1981, the Texas Labor Code, and Texas common law.                     On

September 16, 2005, the district court granted Celanese’s motion

for summary judgment on all counts.                Conner appeals the district

court’s ruling as to the ADEA claim.

                                  II.   DISCUSSION

            This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the trial court.

MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003).

A   court   should    grant     summary       judgment    when    “the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine




                                          3
issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”     FED. R. CIV. P. 56(c).

          Defendants can demonstrate the absence of a genuine issue

of material fact either by (1) submitting summary judgment evidence

negating the existence of a material element of the plaintiff’s

claim or (2) showing there is no evidence to support an essential

element of the plaintiff’s claim.      See Celotex Corp. v. Catrett,

477 U.S. 317, 322-25, 106 S. Ct. 2548, 2552-54 (1986).          “Credi-

bility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions,

not those of a judge. . . .”       Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986).

          Courts analyze a motion for summary judgment based on a

failure to promote under the ADEA using the McDonnell Douglas

three-step, burden-shifting framework.    See Medina v. Ramsey Steel

Co., Inc., 238 F.3d 674, 680 (5th Cir. 2001).     First, Conner must

raise a genuine issue of material fact as to each element of her

prima facie case.       Celanese must then articulate a legitimate,

nondiscriminatory reason for the employment decision.           Finally,

Conner must raise a genuine issue of material fact as to whether

Celanese’s proffered reason was false or merely a pretext for age

discrimination.   Id.

          Conner established her prima facie case by showing that

(1) she belongs to a protected class; (2) she applied for and was

qualified for a position for which applicants were being sought;

                                   4
(3) she was rejected; and (4) a younger applicant was hired.                  Id.

at 680-81; see also O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308, 312, 116 S. Ct. 1307, 1310 (1996) (there can still be

an ADEA claim if the younger, successful applicant was also a

member of the protected class).

            Celanese responds with two legitimate, nondiscriminatory

reasons for not promoting Conner to the ES position.                   First, had

Kathy Wilson    not   received   the       position,    she    would   have   been

terminated from Celanese, an outcome the company asserts it wanted

to avoid.      Second, because of the recent staff reduction in

Conner’s department, Celanese asserts Conner was not considered for

the ES position because her expertise and experience were needed in

the lab.

            The issue now becomes whether Conner created a material

fact issue that the proffered reasons were mere pretexts for age

discrimination.   See Blow v. City of San Antonio, 236 F.3d 293, 298

(5th Cir. 2001) (“[A] plaintiff’s prima facie case, combined with

sufficient    evidence   to   find         that   the   employer’s       asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.”).                Conner attempts to

meet this burden by establishing, among other things, that she was

clearly better qualified than Wilson for the position.                  See Price

v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (“[A]

showing that the unsuccessful employee was clearly better qualified



                                       5
is enough to prove that the employer's proffered reasons are

pretextual.”).3

           The    district     court    compared   Conner’s     and   Wilson’s

qualifications as of April 2002, when Wilson began performing the

ES duties.     Conner asserts that Wilson was effectively selected

over her in June or July of 2001, when Celanese began training

Wilson for the position, and it is that time period to which the

court should look.

           Regardless of which time period we consider, however,

Conner presented substantial evidence to the trial court that she

was clearly better qualified than Wilson for the Environmental

Specialist   position.        While    both   Conner   and   Wilson   had    been

employed at Celanese for a number of years, Conner had significant

lab experience, particularly with the Environmental Chemist duties

that the ES was to perform.              In fact, she had been trained

specifically     for    the    EC      position,   from      which    many    ES

responsibilities were drawn.           On the other hand, Wilson’s only

experience consisted of the nine months of training Celanese

provided her.     In fact, even after receiving months of training,

Wilson often had to turn to Conner with questions on how to perform

the job.     Additionally, Joe Rowland, Celanese’s former training



      3
            The Supreme Court in Ash v. Tyson Foods, Inc., 126 S. Ct. 1195
(2006), impliedly approved of the “clearly better qualified” standard and
criticized the Eleventh Circuit’s requirement that “the disparity in
qualifications [be] so apparent as virtually to jump off the page and slap you
in the face,” 126 S. Ct. at 1197, which some of our cases also used.

                                        6
coordinator, admitted that he believed Conner to be more qualified

than Wilson for the position.

          Although Wilson had Traffic Department experience, which

Conner lacked, traffic accounted for a very small percentage of the

ES duties.   In fact, Wilson admitted that eighty-five to ninety

percent of the position consisted of environmental and analyst

tasks, for which she had no prior experience.     Moreover, despite

her traffic experience, Wilson still had to attend a specialized

course after her selection for the ES position in order to become

certified in the ES’s traffic duties.   Celanese cannot point to any

reason why Conner could not have attended the same course and

received the same traffic certification.

                          III.   CONCLUSION

          Although Celanese asserted legitimate, nondiscriminatory

reasons for its employment decision, Conner rebutted these reasons

by demonstrating a genuine issue of material fact whether she was

clearly better qualified for the position than the younger employee

whom Celanese hired.   Summary judgment is therefore inappropriate.

          REVERSED and REMANDED.




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