                       Revised February 7, 2001

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 99-41444
                        _____________________



     LEROY EVANS, JR

                                    Plaintiff - Appellant

          v.

     CITY OF BISHOP

                                    Defendant - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

                          December 11, 2000

Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.

PER CURIAM:

     Plaintiff-Appellant Leroy Evans, Jr. appeals from the

district court’s order granting Defendant-Appellee City of Bishop

summary judgment on Evans’s discrimination claims.     For the

following reasons, we REVERSE.




     *
        Circuit Judge of the Court of Appeals for the Seventh
Circuit, sitting by designation.
              I. FACTUAL AND PROCEDURAL BACKGROUND

     On June 17, 1998, Defendant-Appellee City of Bishop

(“Bishop”) advertised in the Kingsville Record the newly created

position of administrative assistant.   Shortly thereafter,

Plaintiff-Appellant Leroy Evans, Jr., a former council member,1

applied for the opening by handing his application directly to

Charles Wesley Rogers, the mayor of Bishop.

     Three days before the city council meeting, Cindy

Villarreal, a Bishop municipal court clerk,2 turned in her

application for the advertised position.   In total, Rogers

received between five and ten applications.   He reviewed only

Evans’s and Villarreal’s applications3 and chose Villarreal for a

position that now combined the responsibilities of the posted

administrative assistant position and the existing municipal

judge position.   Rogers did not interview Villarreal or inform

her of his actions until the date of the city council meeting.




     1
        Evans left the city council on May 2, 1998 because he
lost a bid for reelection.
     2
        Villarreal was the municipal court clerk at the time she
submitted her application for the administrative assistant
position. Although the record is not entirely clear on this
point, it appears that she became the municipal court judge
sometime after she submitted the application.
     3
         Rogers stated that he reviewed Evans’s application
because Evans handed the application directly to him and that he
reviewed Villarreal’s application because he heard that she had
applied.

                                 2
Rogers then went before the city council and received approval

for his decisions.4

     Evans filed suit against Bishop on December 18, 1998,

asserting claims under Title VII of the Civil Rights Act of 1964

(“Title VII”) and the Age Discrimination in Employment Act

(“ADEA”).   He alleged employment discrimination on the basis of

race, color, age, and sex.    On June 23, 1999, Bishop filed a

motion for summary judgment.

     The district court referred the case to a United States

magistrate judge who, on August 26, 1999, filed her Memorandum

and Recommendation.    The magistrate judge recommended that

Bishop’s motion for summary judgment be granted and judgment

rendered in Bishop’s favor.    In a decision dated November 29,

1999, the district court adopted the magistrate judge’s

conclusions5 and granted Bishop’s motion for summary judgment.

     Evans timely appealed the decision to this court.    On May

22, 2000, a panel of this court affirmed the district court in an

unpublished opinion.    See Evans v. City of Bishop, No. 99-41444

(5th Cir. May 22, 2000) (per curiam).    However, on July 27, 2000,

in light of the recent Supreme Court decision in Reeves v.




     4
        Rogers did not make the applications available to the
city council for review. He did tell the city council members
that he had only examined Evans’s and Villarreal’s applications.
     5
        As such, the magistrate judge’s findings and conclusions
will be referred to, hereinafter, as those of the district court.

                                  3
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000), we

withdrew our May 22 opinion.



                       II. STANDARD OF REVIEW

     We review de novo a district court’s grant of summary

judgment, applying the same standard as the district court.     See

Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).     Summary

judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine 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); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986).    “If the moving party

meets the initial burden of showing there is no genuine issue of

material fact, the burden shifts to the nonmoving party to

produce evidence or designate specific facts showing the

existence of a genuine issue for trial.”     Allen v. Rapides Parish

Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (internal quotations

and citation omitted).    Doubts are to be resolved in favor of the

nonmoving party, and any reasonable inferences are to be drawn in

favor of that party.     See Burch v. City of Nacogdoches, 174 F.3d

615, 619 (5th Cir. 1999).




                                   4
         III. SOVEREIGN IMMUNITY DOES NOT BAR ADEA CLAIM

     Bishop asserts that Evans’s ADEA claim is barred because the

ADEA has recently been held to be an invalid abrogation of a

state’s sovereign immunity.   Bishop argues further that the law

at the time of appellate review determines the existence of a

live controversy.6

     The Supreme Court in Kimel v. Florida Board of Regents, 120

S. Ct. 631 (2000), held that Congress exceeded its powers under

§ 5 of the Fourteenth Amendment by enacting the ADEA.   As such,

the states and their political subdivisions are protected by the

sovereign immunity principle embodied in the Eleventh Amendment.

In this case, however, Bishop is not a state; it is a city.

Bishop argues that the Kimel Court noted that Congress did not

have sufficient grounds to believe that state and local

governments were engaging in age discrimination, see id. at 645;

thus, Bishop concludes that it, as a city, is immune from ADEA

suits.

     However, the Kimel Court’s comment about congressional

findings has no relevance regarding whether a city has sovereign

immunity from suit.   That determination arises from the well-


     6
        Bishop did not raise this issue in the district court
and thus did so for the first time on appeal. However, Bishop
did not waive appellate review because Eleventh Amendment “claims
are jurisdictional in nature and may be raised and considered at
any time.” Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 726
n.2 (5th Cir. 1982) (citing Edelman v. Jordan, 415 U.S. 651, 677-
78 (1974)).

                                 5
settled law under Eleventh Amendment jurisprudence regarding

“political subdivisions.”    Not all political subdivisions are

automatically immunized when the state is immunized.    See Earles

v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033, 1036

(5th Cir. 1998) (citing Edelman v. Jordan, 415 U.S. 651, 677-78

n.12 (1974)).    “We must look to see whether the entity in

effect[] stands in the shoes of the state itself.”     Id. (internal

quotations and citation omitted).

     In the overwhelming number of cases, Eleventh Amendment

protection “does not extend to counties and similar municipal

corporations.”    Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977) (emphasis added).    Thus,

“independent local political subdivisions are not entitled to

. . . [sovereign] immunity even though they exercise a ‘slice of

state power.’” Jacintoport Corp. v. Greater Baton Rouge Port

Comm’n, 762 F.2d 435, 438 (5th Cir. 1985); see also City of

Lafayette, La. v. La. Power & Light Co., 532 F.2d 431, 434 n.6

(5th Cir. 1976) (“[C]ities, counties, and other state political

subdivisions are not considered ‘the state’ for purposes of

Eleventh Amendment immunity.”).

     Bishop is a city, and there is no evidence that it is

controlled by the State of Texas to such an extent that it stands

in the shoes of the state.    Thus, Bishop is not immune from ADEA

suits.



                                  6
               IV. PLAINTIFF SURVIVES SUMMARY JUDGMENT

     Evans argues that because he made out a prima facie case of

discrimination and illustrated that Bishop’s proffered reasons

were pretextual, he has presented a genuine issue as to Bishop’s

discriminatory motives.   He asserts further that Reeves v.

Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000),

explicitly did not require evidence beyond a prima facie case and

pretext as a prerequisite for a plaintiff to survive summary

judgment.    Bishop responds that although Evans put forth a prima

facie case, Reeves does not alter the result of the previous

panel decision because no rational trier of fact could conclude

that its actions were motivated by discriminatory animus.     We do

not agree.   We find that Evans fulfilled his duty under Reeves to

demonstrate genuine issues of material fact as to his

discrimination claims, and thus, the case should proceed to

trial.7

     7
        Bishop repeatedly asserts on appeal that “a subjective
belief of discrimination, however genuine, . . . [may not] be the
basis of judicial relief.” Elliott v. Group Med. & Surgical
Serv., 714 F.2d 556, 567 (5th Cir. 1983). However, as we have
explained in Portis v. First National Bank, in “the Elliott line
of cases, the plaintiffs’ testimony failed because it alone stood
against unimpeached and uncontradicted opposing testimony.” 34
F.3d 325, 330 n.10 (5th Cir. 1994). Thus, when the plaintiff
challenges the defendant’s assertions and testimony, the “fact
that [the plaintiff’s] case-in-chief consists solely of [his] own
testimony does not prevent [him] from establishing intentional
discrimination.” Id. (emphasis added); see also Vance v. Union
Planters Corp., 209 F.3d 438, 442 & n.3 (5th Cir. 2000) (citing
Portis with approval). In this case, Evans has challenged
Bishop’s claims and has put forth other evidence (in addition to
his subjective belief).

                                  7
     In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

the Supreme Court specified a burden-shifting approach to

establishing proof of intentional discrimination via

circumstantial evidence.8   First, Evans made out his prima facie

case by showing that (1) he is an African-American male over

sixty years old; (2) he was qualified for the job; (3) he was not

hired; and (4) a Hispanic woman under forty years was

subsequently hired for that position.       See id. at 802.   The

burden then shifted to Bishop to articulate a legitimate, non-

discriminatory reason for its decision.       See id. at 802-03; see

also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56

(1981) (stating that defendant’s burden is only one of production

and not persuasion).   Bishop claimed that economic factors and

qualifications motivated its choice of Villarreal.      Rogers stated

that he had previously considered combining the municipal court

judge and administrative assistant positions because neither

position required full-time attention and because such a

consolidation would cut costs.   Rogers further maintained that he

believed Villarreal was the best-qualified applicant.

     Because Bishop produced non-discriminatory reasons, the

“presumption of discrimination [created by Evans’s prima facie

case] drops out of the picture.”       Reeves, 120 S. Ct. at 2106

     8
         This circuit has acknowledged that the McDonnell
Douglas framework applies to both Title VII and ADEA claims.        See
Russell v. McKinney Hosp. Venture, --- F.3d ----, 2000 WL
1785541, at *9 n.3 (5th Cir. 2000).

                                   8
(internal quotations and citation omitted).   However, the fact

finder “may still consider the evidence establishing the

plaintiff’s prima facie case ‘and inferences properly drawn

therefrom . . . on the issue of whether the defendant’s

explanation is pretextual.’”   Id. (quoting Burdine, 450 U.S. at

255 n.10).

     The district court found that a trier of fact could conclude

that both of Bishop’s proffered reasons were pretextual.9   The

court noted that the fact that combining the two positions would

save money did not address why Villarreal was chosen over Evans.

Furthermore, Evans contests the timing of this consolidation

decision, pointing out that it was not made until after

Villarreal submitted her application (as the original posting was

for a different position, and Villarreal herself did not know of

the modification until the city council meeting).   We thus find

that Evans has, at the very least, created a jury issue as to

pretext on this proffered justification.   See Russell v. McKinney

Hosp. Venture, --- F.3d ----, 2000 WL 1785541, at *4 (5th Cir.

2000) (reiterating that it is the province of the jury to choose

among conflicting versions and make credibility determinations).




     9
        Although the district court found that Evans had
established a prima facie case and pretext, the court stated that
Evans failed to create a fact question about Bishop’s
discriminatory animus. As we discuss infra in the text, this
analysis was in error.

                                 9
     Evans also adduced evidence to support a finding of pretext

regarding the qualification justification.    He points to a

contrary statement by Rogers in his deposition that qualification

was not his main priority.   Evans also questions how Villarreal

could be deemed the most qualified when Rogers did not interview

any other candidates and when he stated that he did not compare

Evans’s and Villarreal’s qualifications.10    We agree with the

district court that sufficient evidence exists for a jury to find

that this justification is also pretextual.

     Thus, Evans has established a prima facie case of

discrimination and put forth sufficient evidence for a fact

finder to find Bishop’s proffered reasons to be pretextual.

Reeves instructs that this showing is usually sufficient for a

plaintiff’s case to survive summary judgment:

     [O]nce the employer’s justification has been
     eliminated, discrimination may well be the most likely
     alternative explanation, especially since the employer
     is in the best position to put forth the actual reason
     for its decision.

     . . . .

     Thus, a plaintiff’s prima facie case, combined with
     sufficient evidence to find that the employer’s

     10
        Bishop argues that Evans does not make a showing that
Rogers’s statement of Villarreal’s superior qualifications was
untrue. Even assuming without deciding that Evans’s case is
lacking in this regard, Bishop’s argument is without merit.
Pretext can be illustrated via circumstantial evidence, as has
been done here, and does not require direct evidence. See United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714
n.3 (1983) (stating that the district court erred in requiring
the plaintiff to submit direct evidence).

                                10
     asserted justification is false, may permit the trier
     of fact to conclude that the employer unlawfully
     discriminated.

Reeves, 120 S. Ct. at 2108-09.

     In this case, Evans has also put forth evidence beyond that

of the prima facie case and pretext.    Evans stated that one11 city

council member made racially derogatory comments directed against

African Americans.   Reeves emphatically states that requiring

evidence of discriminatory animus to be “in the direct context”

of the employment decision is incorrect.    See id. at 2111; see

also Russell, --- F.3d ----, 2000 WL 1785541, at *7-*8 (5th Cir.

2000) (emphasizing that our “stray remarks” jurisprudence must be

viewed with caution in light of Reeves).    Thus, it would be

proper for a jury to take this evidence into account.    In

addition, Evans claimed that this same council member worked to

defeat him in his reelection.    The district court stated that

this was outside the realm of the dispute at hand.    However,

again, the same Reeves principle applies: any evidence that could

shed light on an employer’s true motive must be considered.

     The district court applied a now-disallowed legal standard

to analyze Bishop’s summary judgment motion.    The Supreme Court


     11
         The Reeves facts are analogous here — derogatory
remarks also could not be attributed to all of the individuals
responsible for making the employment decision in Reeves.
However, the Supreme Court stated that “although [that was]
relevant, [it was] certainly not dispositive” and went on to find
the remarks of one decisionmaker to further support plaintiff’s
case of discrimination. See 120 S. Ct. at 2111.

                                 11
in Reeves emphasized the importance of jury fact finding and

reiterated that evidence of the prima facie case plus pretext

may, and usually does, establish sufficient evidence for a jury

to find discrimination.   See Reeves, 120 S. Ct. at 2109.   Thus,

considering all of the evidence and taking all reasonable

inferences in favor of the nonmovant Evans, a genuine issue

exists as to whether Bishop intentionally discriminated against

Evans.



                           V. CONCLUSION

     For the above-stated reasons, the judgment of the district

court is REVERSED.   We REMAND for further proceedings in light of

this opinion.   Costs shall be borne by Bishop.




                                12
