                       UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT



                                          No. 99-30186



CATHY BRUNSON YOUNG,
                                                                             Plaintiff-Appellant,

                                               versus

HARRIS HEALTH CARE, INC.,
d/b/a ACADIAN HOSPITAL,
                                                                           Defendant-Appellee.



                      Appeal from the United States District Court
                         for the Middle District of Louisiana
                                      97-CV-270

                                          July 14, 2000
Before POLITZ and DAVIS, Circuit Judges, and RESTANI, * District Judge.
POLITZ, Circuit Judge:**
        Cathy Brunson Young appeals an adverse summary judgment in her

discrimination claims brought under the Age Discrimination in Employment Act



   *
    Honorable Jane A. Restani, United States Court of International Trade, sitting by designation.
   **
      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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
and Title VII of the Civil Rights Act of 1964. Finding a genuine issue of material

fact as to whether the reasons assigned by Harris Health Care Inc. (HHC) for

terminating Young were a pretext for age and/or race discrimination, we reverse

the grant of summary judgment and remand.

                                BACKGROUND

      Young, a Caucasian female, was employed as the Director of Infection

Control, Risk Management, Quality Improvement, Utilization Review, and Medical

Staffing for Acadian Hospital from March 17, 1994 until her termination on

November 20, 1995. At the time of her termination, Young was fifty-one years old.

Acadian Hospital is located in Baton Rouge and owned by HHC.

      Melvin Harris, a Caucasian male, is the owner, President and Chairman of

the Board of HHC. Immediately below Harris in the chain of command is Barry

Marks, also a Caucasian male. Both Harris and Marks were over the age of forty

at all times relevant to this appeal. Young’s immediate supervisor was Craig

Johnston, a Caucasian male who, at the time of Young’s termination, was twenty-

five years old.   When Young was hired Johnston was Acadian’s Assistant

Administrator. In February of 1995, Johnston was promoted to Administrator,

replacing Gwen Hebert, a Caucasian female then forty-six years of age. Hebert was

reassigned to the position of Chief Operating Officer.

                                        2
      After Johnston’s promotion, he and Young were involved in several

confrontations over various management decisions. As a result of these conflicts,

HHC asserts that a telephone conference was held between Harris, Marks, and

Johnston in which Harris decided, and the others concurred, that Young’s

employment should be terminated. Johnston thereafter informed Young. HHC

maintains that Young was terminated because she was insubordinate and failed to

follow the chain of command and, further, because her assigned tasks were

restructured. Young contends that she was fired because Johnston preferred to

employ young African-American women. According to Young, Johnston made

known his view that Blacks were easier to control and manipulate than older

Caucasian employees. Young’s work subsequently was divided and three new

employees were hired as her replacement. Sherry Anderson, a forty-one year old

Caucasian female, became Director of Infection Control; Kimberly Austin, a

twenty-six year old Caucasian female, became Director of Risk Management; and

Latrenda Sylvester, a twenty-six year old African-American female, became the

Director of Quality Improvement, Utilization Review, and Medical Staffing.

      Upon her termination, Young filed a complaint with the EEOC. After

receiving a right-to-sue letter she filed the instant action against HHC, alleging that

she was unlawfully terminated because of her race and age in violation of the Age

                                          3
Discrimination in Employment Act (ADEA)1 and Title VII of the Civil Rights Act

of 1964, as amended.2 After extensive discovery, the district court granted HHC’s

motion for summary judgment, concluding that Young did not present any direct

evidence of age and/or reverse-race discrimination. Additionally, the court found

that HHC proffered a legitimate, non-discriminatory reason for Young’s

termination, which she failed to show was pretextual. Young timely appealed.

                                        ANALYSIS

       We review the grant of summary judgment de novo, viewing the facts in the

light most favorable to Young, the nonmovant.3 Summary judgment may properly

be granted if the record reveals no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.4 An issue is “genuine” if,

on the evidence presented, a reasonable jury could return a verdict for the party

opposing the motion.5 Because employment discrimination actions generally

involve uncertain questions of motivation and intent, which typically are proven


   1
    29 U.S.C. § 621, et seq.
   2
    42 U.S.C. § 2000e, et seq.
   3
   Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995); Marcantel v. Louisiana
Dep’t of Transp. and Dev., 37 F.3d 197 (5th Cir. 1994).
   4
    FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
   5
    Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

                                              4
only through circumstantial evidence, the summary judgment process is not usually

an available resolution.6

        Title VII proscribes an employer from “discharg[ing] any individual...

because of such individual’s race, color, religion, sex, or national origin,”7 while

the ADEA prohibits an employer from “discharg[ing] any individual... because of

such individual’s age.”8 The ADEA’s protections apply to persons who are at least

forty years old.9 Employment discrimination claims brought under either statute

may be established by presenting either direct evidence of an intent to discriminate

or circumstantial evidence sufficient to meet the test detailed in McDonnell

Douglas Corp. v. Green.10

A. Direct Evidence:

        When a plaintiff presents direct evidence that discriminatory animus

motivated or played a substantial role in the employer’s decision to terminate, the

burden of proof shifts to the employer to show, by a preponderance of the evidence,

   6
    Honore v. Douglas, 833 F.2d 565 (5th Cir. 1987); Thornbrough v. Columbus and Greenville
R. Co., 760 F.2d 633 (5th Cir. 1985).
   7
    42 U.S.C. § 2000e-2(a)(1) (1994).
   8
    29 U.S.C. § 623(a)(1) (1994).
   9
    29 U.S.C. § 631(a).
   10
     411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097
(2000); Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988).

                                            5
that it would have taken the same action absent the unlawful factor.11 “Direct

evidence is evidence which, if believed, proves the fact without inference or

presumption.”12 Young contends that the following comments by Johnston are

direct evidence of his intent to discriminate on the basis of her age: calling her an

“old bulldog”; saying he would “never hire anybody as old” as forty; calling her

“menopausal”; asking her “do all women your age act like this?”; telling her that

she was doing her job too well because she was older; and stating that if she were

younger she “wouldn’t take her job so seriously.” We agree with the district court

that these comments, if believed by the trier of fact, while clearly improper, are not

sufficient direct evidence that Young was fired because of her age.

         In order to shift the burden of proof to HHC under Price Waterhouse, Young

must do more than simply establish that the comments evince a discriminatory bias.

These comments, if spoken, would demonstrate Johnston’s bias towards older

persons, particularly older women.        Young, however, also must show that

Johnston’s discriminatory beliefs actually motivated his decision to recommend




   11
     Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Brown v. East Miss. Elec. Power
Ass’n, 989 F.2d 858 (5th Cir. 1993).
   12
        Brown, 989 F.2d at 861.

                                          6
that she be discharged.13 During her deposition, Young could not recall when most

of these comments were made and, thus, offers no evidence that they were made

in connection with the decision to terminate her employment.14 We cannot say that

these comments, standing alone, provide direct evidence of such. 15

        Likewise, we conclude that Young has failed to proffer direct evidence of

reverse-race discrimination. Johnston’s alleged comments that: “whites can’t

handle blacks”; “it’s easier to get young black females to listen”; “no doctor,

especially a black one, is going to dictate to Melvin Harris how to run his hospital”;

and calling Acadian Hospital “Acadian Plantation,” all reflect a bias towards

African-Americans. Moreover, as with the age discrimination claim, there is no

direct evidence linking these comments with the adverse employment decision.


   13
      Haas v. ADVO Systems, Inc., 168 F.3d 732 (5th Cir. 1999) (statement by employer to plaintiff
that his only concern about hiring plaint iff was plaintiff’s age was not direct evidence of age
discrimination); Mooney v. Aramco Serv. Co., 54 F.3d 1207 (5th Cir. 1995); Waggoner v. City
of Garland, 987 F.2d 1160 (5th Cir. 1993) (statement that a younger person could do faster work
and making a derogatory reference to plaintiff not direct evidence of age discrimination).
   14
      Price Waterhouse, 490 U.S. at 235 (offending comments about plaintiff were made during a
meeting evaluating her chances of becoming partner); Turner v. North American Rubber, Inc., 979
F.2d 55 (5th Cir. 1992) (discriminatory statements not direct evidence because plaintiff failed to show
that they were related to contested employment decision).
   15
      In reaching this conclusion, we reject HHC’s assertion that any alleged discriminatory bias held
by Johnston cannot be imputed to HHC because Johnston did not make the actual decision to fire
Young. The record reflects that although Harris was the ultimate decision-maker, he and Marks, who
concurred in the decision, clearly were influenced by Johnston’s recommendations. Thus, we cannot
say that the decision was untainted by Johnston’s discriminatory bias if, in fact, Johnston possessed
such animus. Haas, 168 F.3d at 734; Brown, 989 F.2d at 861-62.

                                                  7
Because the jury necessarily would be required to draw multiple inferences in order

to conclude that, based on these comments, Young was terminated because she is

White, the district court properly held that she did not tender sufficient direct

evidence of race discrimination.

B. Indirect Evidence:

         Young nonetheless may succeed in her claim of age and race discrimination

under the burden shifting framework established in McDonnell Douglas and

Burdine. Under Title VII, a plaintiff first must present prima facie evidence of

discrimination, thereby establishing a presumption that the employer acted with a

discriminatory motive in the challenged employment decision.16 Accordingly,

Young must show that she: (1) is a member of a protected class; (2) was qualified

for the position she held; (3) was subject to an adverse employment action; and (4)

was either replaced by someone outside the protected class or treated differently

from employees outside her protected class.17 The elements are essentially the

same for an action brought under the ADEA except that for the fourth element, the

plaintiff must show that she was replaced by a person substantially younger.18 We

   16
        McDonnell Douglas Corp., 411 U.S. at 802; Burdine, 450 U.S. at 253-54.
   17
        St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
   18
    O’Connor v. Consolidated Coin Caterers Corp, 517 U.S. 308 (1996); Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955 (5th Cir. 1993).

                                               8
agree with the district court that Young presented a prima facie case of age and race

discrimination. Although HHC contends that Young was not qualified for her

position because she was insubordinate, this claim is without merit. As this court

has stated previously, to establish the second prong of a prima facie case, a plaintiff

need only show that she continued to possess the qualifications necessary to

perform the essential functions of her job.19

         Similarly, we reject HHC’s claim that Young cannot prove the fourth

element of her prima facie case. HHC contends that Young was not replaced

because her job was eliminated and the duties were divided into three new

positions. This contention lacks merit. A restructuring of Young’s position could

have been accomplished without firing her. As noted, Latrenda Sylvester, a

twenty-six year old female, became the Director of Quality Improvement,

Utilization Review, and Medical Staffing. Kimberly Austin, a twenty-six year old

female, was given the position of Director of Infection Control, and Sherry

Anderson, a forty-one year old female, became the Director of Risk Management.

All of these women are substantially younger than Young and a plaintiff “need only

make a very minimal showing” to establish her prima facie case.20 We conclude


   19
        Bienkowski, 851 F.2d at 1506.
   20
        Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1991).

                                                 9
that Young produced evidence sufficient to create the presumption that HHC

terminated her because of her age. Further, viewing the facts in the light most

favorable to Young, we likewise conclude that Young established a prima facie

case of reverse-race discrimination. Sylvester, an African-American, assumed the

bulk of Young’s responsibilities and, of Young’s three replacements, was hired

first. Although Anderson and Austin are Caucasian, the record reflects that no

African-Americans applied for either job and, accordingly, Johnston did not have

the opportunity to hire Black employees to fill those positions.

         Once the plaintiff establishes her prima facie case, the burden of production

shifts to the employer to articulate a legitimate, non-discriminatory reason for its

action.21 This explanation must be clear and reasonably specific.22 In the instant

case, HHC avers that Young was fired because she was insubordinate and failed to

follow the chain of command. Young claims that these generalized, conclusionary

statements are insufficient to rebut the presumption of discrimination. We are not

persuaded. To satisfy its burden, an employer “need only produce admissible

evidence which would allow the trier of fact rationally to conclude that the




   21
        McDonnell Douglas Corp., 411 U.S. at 802.
   22
        Burdine, 450 U.S. at 258.

                                             10
employment decision had not been motivated by discriminatory animus.”23 In the

case at bar, it is undisputed that Johnston was the person directly above Young in

Acadian Hospital’s chain of command. To support its proffered explanation, HHC

offered the deposition testimony of Vertiz Daliz, a charge nurse at Acadian who

stated that she once witnessed Johnston and Young outside “yelling and screaming”

at each other about an issue regarding Medicare patients. Adrian Jordan, another

Acadian employee, testified that she witnessed Young “question” Johnston’s

authority as Administrator. Indeed, Young admitted in her deposition that she often

had disagreements with Johnston regarding hospital procedures, and that she

reported to others within the chain of command instead of reporting to Johnston.

As HHC bears only the burden of production, not ultimate persuasion, we find

HHC’s proffered explanation to be a legitimate business reason for terminating

Young’s employment.24

         Because we conclude that on the record before us HHC successfully rebutted

the presumption that it discriminated against Young, to survive summary judgment

she must present evidence sufficient to raise triable issue of fact as to whether




   23
        Burdine, 450 U.S. at 257.
   24
        Haas, 168 F.3d at 733; Bodenheimer, 5 F.3d at 957-58.

                                               11
HHC’s stated reasons are merely a pretext for unlawful discrimination.25 This may

be accomplished “either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” 26 In determining

whether Young has produced sufficient evidence to preclude summary judgment,

we consider all of the record evidence, including that offered to establish the prima

facie case.27

         In addition to the alleged discriminatory statements made by Johnston, which

Johnston denies making, the record reflects that other Acadian employees regarded

Johnston as a racist. Further, contrary to HHC’s assertion that Young “had

difficulty interacting with other HHC employees” and that she was

“confrontational,” both Daliz and Jordan testified unequivocally that Young got

along well with the other employees. Similarly, Dr. Stan Mays, Acadian’s Medical

Director, testified that he never heard Young referred to as “insubordinate.”

Jordan, an African-American then aged twenty-seven, testified that she and

Johnston “argued,” and Daliz testified that she remembered Johnston having


   25
        McDonnell Douglas Corp., 411 U.S. at 805; Burdine, 450 U.S. at 256.
   26
        Burdine, 450 U.S. at 256.
   27
        Reeves, 120 S. Ct. at 2106 (quoting Burdine, 450 U.S. at 255, n.10); Haas, 168 F.3d at 733.

                                                 12
“screaming matches” with Director of Nursing Gloria Mays, also African-

American and then aged thirty. Neither Jordan nor Mays were fired because of

their “insubordination.“              We also find compelling the fact that Young’s

employment file contained no written documentation of her alleged acts of

insubordination, despite HHC’s claims that she “often” violated the chain of

command and “continued to arrive late for work” although she was “repeatedly

instructed” to arrive on time. Indeed, when Young attempted to resign in August

of 1995, a mere three months before she was fired, it was Johnston who persuaded

her to stay. On the other side of the scales of justice we find that in her letter of

resignation, Young stated, “I do not think that Administrations [sic] decision not

to support me was personally motivated.” Additionally, HHC produced affidavits

from Harris, Marks, and Johnston, all of which state that Young never complained

to any of them about Johnston’s alleged discriminatory remarks. Based on this

evidence, we must conclude that there is a material factual dispute as to whether

Johnston was motivated either by age or race in his employment decision and

whether HHC’s reasons are pretextual, factual questions effectively precluding

summary judgment.28 Resolution of these issues necessarily requires credibility


   28
      Contrary to HHC’s assertion, the fact that Harris, Marks, and Hebert are all Caucasian and over
forty years old, while persuasive, does not conclusively establish that Young was not terminated
because of her age and/or race. Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633,

                                                13
determinations that are more appropriately left to the jury at trial. Such is not fit

grist for the summary judgment mill. In reaching this decision, we express no

outcome determinative opinion on the merits of the case, which should now

proceed as any case advancing to trial.

       Accordingly, we REVERSE the summary judgment appealed, and REMAND

for further proceedings consistent herewith.




646 n.20 (5th Cir. 1985), overruled on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502 (1993).

                                              14
