                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                       REVISED DECEMBER 29, 2004
                                                               December 15, 2004
                 IN THE UNITED STATES COURT OF APPEALS
                                                            Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                      Clerk



                             No. 04-10194



CLARA PATRICK,

                                                   Plaintiff-Appellant,
versus

TOM RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

                                                   Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      --------------------

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Plaintiff-Appellant Clara Patrick appeals the district court’s

grant of the summary judgment motion of Defendant-Appellee, Tom

Ridge, Secretary, Department of Homeland Security,1           dismissing

Patrick’s claims grounded in age discrimination and retaliation


     1
       The defendant in this suit, and Patrick’s current
employer, is the Department of Homeland Security (“DHS”). This
department was created, however, after the events at issue in
this case took place. After creation of the DHS, the Immigration
and Naturalization Service (“INS”) and its named representative,
John Ashcroft, successfully moved to substitute the DHS and
Secretary Ridge as defendants. At all times relevant to this
lawsuit, however, Patrick worked for the INS. Therefore, it is
the agency to which we refer throughout the opinion, despite the
fact that the DHS and Secretary Ridge are now the named
defendants in this suit.
under the Age Discrimination in Employment Act (“ADEA”).2                       The

district court based its dismissal on a determination that (1)

Patrick had proved her prima facie cases; (2) her employer had

produced legitimate, nondiscriminatory reasons for its employment

action vis-à-vis Patrick; and (3) she had not demonstrated that her

employer’s legitimate, nondiscriminatory reasons for not promoting

her were pretextual.         Concluding that the employer’s responses do

not qualify as “reasons” for purposes of McDonnell Douglas3 and

Burdine,4 we reverse and remand.

                         I.    FACTS AND PROCEEDINGS

      In     the   instant    case,   Patrick     advances      charges    of   age

discrimination and retaliation arising out of the INS’s refusal to

promote her to a supervisory position for which she had applied.

In   1989,    Patrick   began   working     for   the   INS’s    Central    Region

Administrative Center (“CRAC”) in Dallas, Texas as a Contracting

Officer and Realty Specialist at the GS-11 pay grade.5                     The INS

upgraded Patrick to GS-12 pay grade in 1993.



      2
          29 U.S.C. § 621 et seq.
      3
          McDonnell Douglas v. Green, 411 U.S. 792 (1973).
      4
       Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981).
      5
       Patrick states in her claim that she was born in 1938 and
has therefore been over forty years of age and within the class
protected by the ADEA at all times relevant to this lawsuit. See
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996)(stating that the protected class under the ADEA includes
employees over forty).

                                        2
     In 1999, Patrick applied for a position as a GS-13 Supervisory

Realty Specialist (“SRS”).        She was denied this promotion, which

was given instead to one of Patrick’s co-workers who is more than

ten years her junior.        Patrick timely filed a charge of age

discrimination with the EEOC.       She eventually brought suit against

the INS on this first claim, but, in 2002, the district court

granted   the   INS’s   motion    for   summary   judgment   and   dismissed

Patrick’s first claim.

     Between the time that she brought suit on her first claim and

the date of its dismissal, the SRS position again became available

and Patrick reapplied.           At the time of her second promotion

application, Patrick had more than twelve years experience as a

Realty Specialist at the INS and had served as an acting SRS on

several occasions.       The Human Resources Department at the INS

selected Patrick and five other applicants as finalists to be

interviewed by a three-person panel.        Panel member Daniel Pomplun,

Director of the Facilities and Engineering Division of CRAC, served

as the panel’s selecting official and was charged with making the

final selection decision.

     The panel interviewed the six finalists and rated them based

on (1) each candidate’s strengths, (2) how each responded to a

uniform set of questions, and (3) how the panel members believed

that each would fit into the work group.          Pomplun acknowledged in

a declaration produced in support of the INS’s motion for summary

judgment that, during the time that he was considering candidates

                                        3
for the SRS position, another employee in his division told him

about Patrick’s prior EEOC complaint.6 In his declaration, Pomplun

stated that this information had no bearing on his decision not to

select Patrick. In a separate (and contradictory) statement to the

EEOC, however, Pomplun claimed not to have had any knowledge of

Patrick’s former EEO activity.

     Pomplun and the panel eventually decided not to select any of

the six candidates interviewed for the position.                As a result,

another panel member, Robert Gawel, recommended that an outside

candidate, Margaret Hartigan, be considered for the position.

After interviewing Hartigan, Pomplun selected her for the SRS

position, stating that Hartigan was the “best qualified” person for

the position.

     This took place before Patrick’s original action was dismissed

in 2002 and prompted Patrick to amend her original 1999 complaint

to include new charges of age discrimination and retaliation

grounded   in   the   agency’s   2001    decision   to   deny   Patrick   the

promotion and hire Hartigan instead.           When the district court

subsequently    granted   the    employer’s   first   motion    for   summary

judgment and dismissed Patrick’s 1999 claims, the INS filed a

motion for summary judgment on her 2001 claims, which the district

court granted.    Patrick timely filed her notice of appeal of the


     6
       The INS offered Pomplun’s statements in the form of an
unsworn declaration under penalty of perjury, as permitted by 28
U.S.C. § 1746.

                                     4
district court’s latter grant of the INS’s summary judgment motion.

                                II. ANALYSIS

A.   Standard of Review

     We review a grant of summary judgment de novo, applying the

same standard as the district court.7          A district court may grant

summary judgment if, viewing the facts in the light most favorable

to the nonmovant, the movant demonstrates that there is no genuine

issue of material fact and that the movant is entitled to judgment

as a matter of law.8       “[T]he plain language of Rule 56(c) mandates

the entry of summary judgment . . . against a party who fails to

make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear

the burden of proof.”9

B.   McDonnell Douglas Burden-Shifting

     We     employ   the   familiar   McDonnell   Douglas   burden-shifting

framework when, as here, we review the grant of an employer’s

summary judgment motion to dismiss an employee’s ADEA claims based

on only circumstantial evidence.10         First, the employee must prove


     7
       Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th
Cir. 2004).
     8
          Id.
     9
          Celotex v. Catrett, 477 U.S. 317, 322 (1986).
     10
       McDonnell Douglas v. Green, 411 U.S. 792 (1973).
Although McDonnell Douglas was a race discrimination case, the
same three-step burden-shifting analysis applies to ADEA cases,
Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir.2001), and
to retaliation claims. Rios v. Rossotti, 252 F.3d 375, 380 (5th

                                       5
a prima facie case of discrimination.11                  The requirements for a

prima facie case vary slightly with the type of claim brought12 but

an   employee’s     establishment    of      a   prima   facie   case   creates   a

rebuttable presumption that the employer unlawfully discriminated

against the employee.13

      To rebut the presumption of discrimination created by the

employee’s       prima   facie   case,   the     employer    must   articulate    a

legitimate, nondiscriminatory reason for its decision.14                  As this

is a burden of production, the employer need not prove that it was

actually motivated by its proffered reason.15               But, if the employer

meets its production burden, the presumption of discrimination

created by the plaintiff’s prima facie case falls away and the

factual inquiry becomes more specific.16             To avoid dismissal on the

employer’s motion for summary judgment, the employee must show that

the employer’s putative legitimate, nondiscriminatory reason was

not its real reason, but was merely a pretext for discrimination.17


Cir. 2001).
      11
           Id. at 802.
      12
           Id. at 802 n.13.
      13
           Burdine, 450 U.S. at 255.
      14
           Id.
      15
           Id.
      16
           St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11
(1993).
      17
           McDonnell Douglas, 411 U.S. at 804.

                                         6
In other words, after a defendant employer has met its burden of

production, an employee plaintiff, like any other civil plaintiff,

must now demonstrate that there is a material issue of disputed

fact as to discrimination, the ultimate question vel non.18 In some

instances, proof of pretext alone will suffice.19

1.   Context

     The framework in which we review this case on appeal is key.

First, the ruling we review is one that grants a summary judgment

motion before trial, not a motion for judgment as a matter of law

following a merits trial or even following the completion of the

plaintiff’s case when the record is not yet complete.           Second, the

summary judgment motion was filed by the defendant employer, not

the plaintiff employee.     If, at this stage of the litigation, the

plaintiff employee has produced evidence sufficient to make out a

prima facie case and the defendant employer has failed to rebut the

presumption    of   discrimination   with   evidence   of   a   legitimate,

nondiscriminatory reason for its employment decision, the employee

is entitled to take her case to a jury.20        It is in this context

     18
          See Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir.
1996).
     19
       Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000).
     20
       See Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir.
1997) (en banc) (“The presumption [established by the plaintiff’s
prima facie case] means that, unless the defendant comes forward
with a non-discriminatory reason for the action complained of,
the plaintiff’s case may go to the jury, even though the prima
facie case might be insufficient —— apart from the presumption ——

                                     7
that we proceed.

2.    Prima Facie Case

      The district court ruled (and the INS does not challenge on

appeal) that Patrick succeeded in making out a prima facie case for

both age discrimination and retaliation.                        We therefore do not

address this first step in the McDonnell Douglas minuet.                       Rather,

we   proceed   to    the    second   step     ——    the   employer’s       legitimate,

nondiscriminatory reason for its acts.

3.    Legitimate, Non-Discriminatory Reason for Failure to Promote

      An    employer       may   avoid   liability         for    charges     of    both

discrimination and retaliation by producing evidence tending to

show that it had a legitimate, nondiscriminatory reason for its

disputed decision.          In opposition to both of Patrick’s claims,

discrimination       and     retaliation,          the    INS     offers     the    same

justifications for its decision.                   As we conclude that neither

putative reason satisfied the INS’s burden of production, Patrick’s

prima facie cases survive.

      a.    First Reason: Patrick was “Not Sufficiently Suited” For

            the Position

      The   INS     first    proffers    as   a     legitimate      reason    for   not

promoting Patrick that she was not “sufficiently suited” for the

SRS position.       The agency asserts that none of the six applicants



to meet the plaintiff’s ultimate burden of showing
discrimination. . .”), abrogated on other grounds, Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).

                                         8
initially interviewed was sufficiently suited and that this is why

it subsequently conducted an interview with Hartigan and hired her.

Yet, no evidence in the summary judgment record clarifies or

expands    on   the   statement    of   the     INS   that   Patrick   was   not

“sufficiently suited for the job” other than Pomplun’s statement

that he evaluated candidates based not only on work credentials and

experience but also on how he thought that the candidate would fit

into the work group.        The INS gave no explanation of what this

means and produced no specifics for why Patrick would not fit in

with the group.

     Fatal to the INS’s position here is the well-established rule

that, to meet its burden of production under McDonnell Douglas, an

employer    must      articulate   a        nondiscriminatory    reason      with

“sufficient clarity” to afford the employee a realistic opportunity

to show that the reason is pretextual.21                This does not mean

that an employer may not rely on subjective reasons for its

personnel decisions.22       It does mean, though, that to rebut an

employee’s prima facie case, a defendant employer must articulate

     21
        Burdine, 450 U.S. at 255-56 (emphasis added). See also
Hill v. Miss. State Employment Serv., 918 F.2d 1233, 1239 (5th
Cir. 1990) (per curiam) (expressing doubt as to whether a
justification of “general inefficiency” was sufficiently clear
and specific to meet an employer’s burden of production).
     22
       See, e.g., Medina v. Ramsey Steel Co., 238 F.3d 674, 681
(5th Cir. 2001) (holding that plaintiffs are not required to
satisfy subjective criteria to prove their qualifications for
purposes of the prima facie case, but that the issue of
subjective qualifications is dealt with at later stages of the
analysis).

                                        9
in some detail a more specific reason than its own vague and

conclusional feeling about the employee.       The Eleventh Circuit

illustrated this point by contrasting hypothetically legitimate

reasons with illegitimate reasons for an employer’s refusal to hire

a waiter:

          [I]t might not be sufficient for a defendant
     employer to say it did not hire the plaintiff
     applicant simply because “I did not like his
     appearance” with no further explanation. However, if
     the defendant employer said, “I did not like his
     appearance because his hair was uncombed and he had
     dandruff all over his shoulders,” or “because he had
     his nose pierced,” or “because his fingernails were
     dirty,” or “because he came to the interview wearing
     short pants and a T-shirt,” the defendant would have
     articulated a “clear and reasonably specific” basis
     for its subjective opinion —— the applicant’s bad (in
     the employer’s view) appearance.23

If the INS believed —— and had verbalized —— that Patrick was not

“sufficiently suited” to fill the SRS position because of her

experience, credentials, attitude, or some other such articulable

characteristic, the agency’s reason might have provided enough

detail to enable Patrick to attempt to show pretext.    In the face

of the INS’s bald and amorphous statement that Patrick simply was

“not sufficiently suited,” however, neither we nor Patrick can

identify the kind of evidence needed to demonstrate that such a

rank generalization is or is not pretextual.

     In fact, the explanation given by the INS, i.e., that Patrick

was not “sufficiently suited” for the position —— even including

     23
       Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir.
2000)(en banc).

                                10
Pomplun’s    belief     that     she   would       not    “fit    in”    ——    does    not

necessarily qualify as a “nondiscriminatory” reason.                         After all, a

hiring official’s subjective belief that an individual would not

“fit in” or was “not sufficiently suited” for a job is at least as

consistent       with     discriminatory           intent        as     it     is     with

nondiscriminatory intent: The employer just might have found the

candidate “not sufficiently suited” because of a protected trait

such as age, race, or engaging in a protected activity.                        We hold as

a matter of law that justifying an adverse employment decision by

offering a content-less and nonspecific statement, such as that a

candidate is not “sufficiently suited” for the position, is not

specific enough to meet a defendant employer’s burden of production

under McDonnell Douglas.          It is, at bottom, a non-reason.

       b.   Second      Reason:    The     “Best     Qualified”         Candidate      Was

            Selected

       The INS next tendered as a nondiscriminatory reason for not

promoting    Patrick     its    conclusion     that       Hartigan      was     the   best

qualified candidate.       It is undisputed, however, that Hartigan was

not even under consideration for the job at the time that Patrick

was denied the promotion.          Only after Patrick and the other five

had been denied the promotion did the INS identify Hartigan as a

potential candidate.           The district court erred when it held that

this    timing    had    “no    bearing”      on    the     employer’s        profferred

nondiscriminatory reason.

       We acknowledge that choosing some other candidate because he

                                         11
is   the    best-qualified    individual    for   the   job    is    generally   a

legitimate, nondiscriminatory reason for an adverse employment

decision.24    We are also mindful of the Supreme Court’s admonition

that courts are not to assess the employer’s credibility or the

truthfulness of its reason at this stage of the inquiry.25                    This

does not mean, however, that when an employer offers evidence of an

otherwise legitimate, nondiscriminatory reason which unmistakably

demonstrates that it could not have motivated the employer to deny

the promotion to a qualified candidate, such an indisputable

impossibility cannot satisfy the employer’s burden of production.

To   make    this   determination,    we    do    not   have   to    assess   the

credibility of the INS; its own statements confirm that it had

already rejected Patrick before it ever identified Hartigan as a

potential candidate and invited her to apply for the position.

      We hold as a matter of law that an employer who offers the

relative     qualifications    of   the    applicants    as    its   legitimate,

nondiscriminatory reason must show that, at the time it made the

decision adverse to the complaining applicant, it already knew that

the ultimately selected individual’s qualifications were superior.26

      24
       See Price v. Fed. Express Corp., 283 F.3d 715, 721 n.2
(5th Cir. 2002).
      25
           See St. Mary’s Honor Ctr., 509 U.S. at 509.
      26
       See, e.g., Crapp v. City of Miami Beach Police Dep’t, 242
F.3d 1017, 1020 (11th Cir. 2001)(“Because the [Florida Department
of Law Enforcement] did not make the decision to suspend Crapp’s
certification until after his termination, it cannot serve as a
legitimate, nondiscriminatory reason for Crapp’s termination. .

                                      12
It is axiomatic that the ultimate factual inquiry in an employment

discrimination     case   is   whether   the    employer   intentionally

discriminated against its employee.27          Albeit in a mixed motive

case, the Supreme Court in Price Waterhouse v. Hopkins emphasized

that an employer may not prevail with respect to this ultimate

inquiry by offering a “legitimate and sufficient reason for its

decision if that reason did not motivate it at the time of the

decision.”28    The Court went on to define its “snapshot” inquiry

into an employer’s motive as limited to the instant that the

decision was made:

     In saying that gender played a motivating part in an


.”); Walker v. Mortham, 158 F.3d 1177, 1182 n.8 (11th Cir.
1998)(“Our precedent requires that if a defendant raises as its
legitimate, nondiscriminatory reason relative qualifications of
the applicants, the defendant ‘must include the fact that the
decision-maker knew that the promoted individual’s qualifications
were superior at the time the decision was made.’”) (internal
citation omitted); Perkins v. Brigham & Women’s Hosp., 78 F.3d
747, 751 (1st Cir. 1996)(“It is true that an employer’s proffered
justification must be based on information that it knew and
relied upon at the time it decided to take the adverse employment
action.”); Turnes v. AmSouth Bank, 36 F.3d 1057, 1061 (11th Cir.
1994)(“[A]lthough it is true that the employer need not prove it
was actually motivated by the proffered reason, Burdine clearly
does not relieve the employer from producing a reason that was
available to it at the time of the decision’s making.”)(emphasis
in original); Sabree v. United Bhd. of Carpenters & Joiners Local
No. 33, 921 F.2d 396, 404 (1st Cir. 1990)(“Unless, therefore, a
defendant articulates a “legitimate non-discriminatory reason”
that actually motivated the decision, the reason is legally
insufficient.”)(emphasis in original).
     27
       See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 714 (1983).
     28
          490 U.S. 228, 252 (1989)(plurality opinion)(emphasis
added).

                                   13
      employment decision, we mean that, if we asked the
      employer at the moment of the decision what its
      reasons were and if we received a truthful response,
      one of those reasons would be that the applicant or
      the employee was a woman.29


      In the context of evaluating the weight of after-acquired

evidence on a discharged employee’s claims, the Court in McKennon

v.   Nashville    Banner      Publishing,    squarely    stated   that    “[t]he

employer could not have been motivated by knowledge it did not have

and it cannot now claim that the employee was fired for the

nondiscriminatory reason.”30         The Court in McKennon reiterated its

pronouncement in Price Waterhouse which emphasized “the necessity

of determining the employer’s motives in ordering the discharge, an

essential element in determining whether the employer violated the

federal antidiscrimination law.”31

      The     purpose    of    the   McDonnell     Douglas    framework     and,

specifically,     that    of   imposing     on   the   employer   a   burden   of

producing a legitimate, nondiscriminatory reason for its actions,

is to “sharpen the inquiry” of the court with respect to the



      29
           Id. at 250 (emphasis added).
      30
           513 U.S. 352, 360 (1995).
      31
       Id. (citing Price Waterhouse, 490 U.S. at 252). It does
not necessarily follow, however, that if, in a trial on the
merits, an employer adduces probative evidence that (1) all
initial candidates for a promotion were unsuited and (2) the
subsequently identified and selected candidate was superior and
suited, in addition to a legitimate nondiscriminatory reason for
its decision, such an employer cannot defeat a charge of
discrimination or retaliation.

                                       14
ultimate issue in the case, intentional discrimination.32                   Although

McKennon and Price Waterhouse discussed the ultimate determination

of    an    employer’s    liability,       rather   than        the        employer’s

Burdine burden of producing a legitimate, nondiscriminatory reason,

the directive of those decisions for courts to “take a snapshot at

the moment of the allegedly discriminatory act”33 is fully apposite

to the inquiry whether an employer has satisfied this intermediate

burden by advancing after-acquired knowledge as a justification for

its decision. As the ultimate issue is the employer’s reasoning at

the   moment     the   questioned   employment      decision          is    made,   a

justification that could not have motivated the employer’s decision

is not evidence that tends to illuminate this ultimate issue and is

therefore     simply   irrelevant   at     this   stage    of    the       inquiry.34

Especially in the context of this case —— the employer’s summary

judgment motion to dismiss —— such an offering is tantamount to



      32
           Burdine, 450 U.S. at 253, 256 n.8.
      33
           Sabree, 921 F.2d at 404.
      34
       See Price Waterhouse, 490 U.S. at 252 (“[P]roving that
the same decision would have been justified . . . is not the same
as proving that the same decision would have been
made.”)(internal quotations omitted). See also Burdine, 450 U.S.
at 255-256 (“The explanation provided must be legally sufficient
to justify a judgment for the defendant. . . Placing this burden
of production on the defendant thus serves simultaneously to meet
the plaintiff’s prima facie case by presenting a legitimate
reason for the action and to frame the factual issue with
sufficient clarity so that the plaintiff will have a full and
fair opportunity to demonstrate pretext. The sufficiency of the
defendant’s evidence should be evaluated by the extent to which
it fulfills these functions.”)(emphasis added).

                                      15
offering no reason at all.

     As we hold that the INS has not met its burden of producing a

legitimate, non-discriminatory reason, we never reach the question

whether   Patrick    could    demonstrate    pretext,   much   less   whether

discrimination actually motivated her employer’s decision not to

promote her.    Patrick’s prima facie case thus pretermits summary

judgment dismissal of her action, leaving the ultimate question of

discriminatory animus to be determined by the trier of fact.

                              III. CONCLUSION

     In the context of an employer’s motion for summary judgment

seeking dismissal of an employee’s discrimination or retaliation

suit, a holding that the employer’s offered reasons for its adverse

decision does not fulfill its burden of production under McDonnell

Douglas is the legal equivalent of the employer’s having produced

no reason at all.         And, because Patrick has (1) established

prima facie cases of discrimination and retaliation and (2) the INS

has failed     to   satisfy   its   burden   of   producing    a   legitimate,

nondiscriminatory reason for its employment decision, the McDonnell

Douglas pas de deux is over and the INS’s motion for summary

judgment must be denied. We therefore reverse the district court’s

grant of the INS’s motion for summary judgment and remand this case

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.




                                      16
