           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 3, 2009

                                       No. 08-60916                    Charles R. Fulbruge III
                                                                               Clerk

JAMES WARREN

                                                   Plaintiff - Appellant
v.

CITY OF TUPELO MISSISSIPPI

                                                   Defendant - Appellee




                   Appeal from the United States District Court
             for the Northern District of Mississippi, Eastern Division
                                  No. 1:07-CV-70


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant James Warren, an electrical worker in the city of
Tupelo, Mississippi, was not promoted to the position of Foreman in the Tupelo
Water & Light Department. Dwayne Daniel and Bill West were chosen even
though they did not have the ten years of lineman experience listed in the job
description. Warren had such experience, though he had not actively done such
work since 1995 and lacked other qualifications. Warren timely filed a charge
with the United States Equal Employment Opportunity Commission, alleging

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
that he was denied the promotion because of his age. The Commission issued
a Notice of Right to Sue, and Warren subsequently filed suit in the United States
District Court for the Northern District of Mississippi, alleging age
discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. The district court granted summary judgment in favor of the
city, ruling that Warren had failed to show a prima facie case of age
discrimination. In the alternative, it also ruled that Warren did not create an
issue of material fact in rebutting the legitimate, nondiscriminatory reasons that
the city advanced for its hiring decision. For the following reasons, we affirm.
             I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
       In 1968, plaintiff-appellant James Warren joined the Tupelo Water &
Light Department (the “department”) in Tupelo, Mississippi (“the city”). After
working for several years, he began doing “lineman” work—climbing electric
poles, working in the air off of poles, and working out of a bucket truck. In 1995,
Warren switched to working on the operations service truck and no longer
primarily did lineman work, though he still did such work while “on call” five to
ten times per year. When attending to line problems on call, Warren never
needed the assistance of a Foreman or lineman. Warren was never classified as
“Lead Lineman,” was not aware of this category, and always thought of himself
as a “top lineman.”1



       1
           Though Warren sometimes describes the “Foreman” position as “lead
lineman/foreman,” we will refer to it as “Foreman.” The level below that is “Lead Lineman,”
the level below that is “Lineman II” (the highest level that Warren attained), and the lowest
level is “Lineman I.” Additionally, we agree with the district court that Warren’s
argument—that the “Lead Lineman” title is a distinction without a difference—“does not
negate the qualification” and that “[t]he consistent deposition testimony of other Tupelo
employees show[s] that lead lineman is a step above Warren’s terminus on the lineman career
path.” Warren v. City of Tupelo, Miss., No. 1:07-CV-70, 2008 WL 4450291, at *2 (N.D. Miss.
Sept. 29, 2008).

                                             2
       In April 2006, the department posted openings for two Foreman positions.
Johnny Timmons, the department’s manager, considered the applications of six
applicants: Warren (age 61), Chad Cobb (age 33), Britt Curbow (age 33), Dwayne
Daniel (age 36), Joseph Edwards (age 42), and Bill West (age 31). As part of the
evaluation process, Timmons asked Ricky Loden (electrical superintendent),
Alvin Jones (Foreman) and Gary Hatfield (Foreman) to evaluate each of the six
applicants using “interview rating forms.”            Each of these three separately
evaluated the applicants, without interviews, and based on his knowledge of
each applicant’s work history. The three evaluators filled out ratings on a scale
from 1 to 10 in the categories of: appearance, poise and confidence, verbal
communication and skills, comprehension, public and employee relations, ability
to present ideas, job knowledge and skills, work expectations, and a general
rating of the “candidate’s overall ability to fulfill the position being sought.”
Spencer Gunn, a Foreman, was not asked to fill out any evaluation forms
regarding Warren’s promotion, even though he was familiar with Warren’s work
and “thought highly” of him.2
       In a personal meeting, Warren pointed out to Timmons that Daniel and
West did not have the requisite ten-year experience for a “general lineman.” In
response, Warren threw the rating forms down on the table and said, “what do
you want me to do, kick them off the list?” Warren later learned from Cassandra
Moore and Contanna Purnell of the city’s human resources department that
Timmons and his secretary had attempted to have the ten-year requirement
removed from the Foreman job listing.




       2
          The parties dispute whether Timmons had previously used this rating system.
Timmons told Warren that this rating system had been used in 2004 to promote Gunn to the
Foreman position. However, neither Hatfield nor Loden recall being asked to use such a
system before. Gunn stated that if he had been rated, no one ever told him about it. Members
of the city’s human resources department also do not recall such a rating system being used.

                                             3
      The three evaluators rated Warren lower than other candidates. For
example, Loden stated that Warren lacked knowledge and experience working
on power lines, doing “hot work” (i.e., working on energized lines), and doing
transformer banking. Jones noted that Warren had worked on a service truck
for most of the twenty-two years that Jones had been with the department,
whereas other candidates were working with crews daily. Hatfield was also
aware that Warren was not working on a line crew but instead had been
operating in the operations serviceman job for many years.
      Timmons interviewed three candidates—Britt Curbow, Dwayne Daniel,
and Bill West—but did not interview Warren. Timmons promoted Daniel and
West on May 15, 2006.      Timmons believed that Daniel and West had the
requisite experience and knowledge of electrical systems and electrical work,
such as transformer banking, primary metering, and setting poles. Daniel had
risen from Lineman I to Lineman II and finally to Lead Lineman in seven years,
and had been working on a line crew for five years before that. West had worked
on a line crew since 1992, and also moved from Lineman I to Lineman II and
then to Lead Lineman. Warren, by contrast, had never applied to be promoted
from Lineman II to Lead Lineman. He had been working as an operations
serviceman since October 1995 and, though still at the lineman level, had not
worked on a day-to-day basis with a crew since 1995 and was only performing
line work “on call.”
      Warren later questioned Timmons about the qualifications listed on the
job posting. Warren stated that he was the only candidate with a minimum of
ten years of experience as a lineman. Timmons agreed with this, but also noted
that the job descriptions were optional and that there were other criteria for the
job, such as having the necessary “Class A Commercial Driver’s License” and
prior experience as a Lead Lineman.



                                        4
      Finally, Warren puts forward many facts regarding the ratings system
that allegedly demonstrate that he should not have been rated as low as he was.
He notes that Hatfield rated him lower than West in the “verbal communication
and skills” category because he knew of West’s experience using “hot stuff” and
did not know of Warren’s experience in this category. Hatfield also stated that
he “don’t [sic] have no [sic] idea” why he rated Warren lower than West in the
category of comprehension. Jones had “no idea” what Warren’s experience was
before 1987 and rated Warren a 3 out of 10 in “public and employee relations”
because of alleged problems with other employees at some point in the distant
past, though he did not know exactly what these problems were. Loden rated
Warren lowly because he thought that Warren was not a good lineman and
because generally Loden can “tell a guy by his actions whether he knows what
he’s doing or not,” though he could not claim a single time where Warren
behaved incorrectly when working on lines.
B. Procedural background
      Warren timely filed a charge with the United States Equal Employment
Opportunity Commission (the “EEOC”), alleging that he was denied promotion
because of his age. The EEOC issued a Notice of Right to Sue, and Warren
subsequently filed suit in the United States District Court for the Northern
District of Mississippi, alleging age discrimination under the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The district court granted
the city’s motion for summary judgment, ruling that Warren was unable to
create an issue of material fact to make out a prima facie case of discrimination
because he could not show that he was qualified for the position of Foreman. It
noted that the listed job qualifications were amorphous and that none of the
candidates met all of those listed. Nonetheless, it reasoned that Warren was
never a Lead Lineman and that all of the Foremen had been promoted from that



                                       5
level. It thus ruled that Warren’s application failed because this rendered him
unqualified.
       In the alternative, the district court also ruled that Warren did not
adequately create an issue of material fact to rebut the city’s legitimate,
nondiscriminatory reasons for not promoting him. 3 First, the court rejected
Warren’s reassertion of his qualifications because he did not meet all of the job
requirements. Second, though the court acknowledged that the objectivity of the
interview ratings forms was disputable, it ruled that there was “no evidence that
the use of the process was designed to impermissibly discriminate against
Warren or anyone else.” Warren, 2008 WL 4450291, at *3. Third, the court
ruled that the exclusion of Gunn from the hiring process, though possibly
detrimental to Warren because Gunn thought highly of Warren, was likewise not
evidence of discrimination. Finally, the court stated that Warren’s argument
that Timmons had earlier denied him a “right of way foreman” position was
unavailing because Warren “offer[ed] nothing to show that the decision was due
to age” and because Warren did not “indicate who else applied for the position.”
Id. at *4. Warren timely appealed.
                           II. STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de novo. LeMaire
v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary
judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact.” Fed. R. Civ. P. 56(c); Breaux v. Halliburton Energy Servs.,
562 F.3d 358, 364 (5th Cir. 2009). “A genuine issue of material fact exists if a
reasonable jury could enter a verdict for the non-moving party.” Brumfield v.


       3
           The district court did not specify the “multiple reasons” that the city gave, but
instead focused only on the fact that Warren was not qualified because he had not been Lead
Lineman.

                                             6
Hollins, 551 F.3d 322, 326 (5th Cir. 2008). “All the facts and evidence must be
taken in the light most favorable to the non-movant.” Breaux, 562 F.3d at 364.
                                   III. DISCUSSION
A. The McDonnell-Douglas framework
       Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.”               29 U.S.C. § 623(a)(1).        In
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme
Court first established the overall three-step evidentiary framework for a court
to evaluate discrimination claims.4 See Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1089–90 (5th Cir. 1995). Under this procedure, the complainant “carr[ies]
the initial burden under the statute of establishing a prima facie case of . . .
discrimination.” McDonnell Douglas, 411 U.S. at 802. Once the complainant
has done this, the burden “shift[s] to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” Id. If the employer has
articulated such a reason, then the complainant is given “a fair opportunity to
show that petitioner’s stated reason for respondent’s rejection was in fact
pretext.” Id. at 804.




       4
          The McDonnell Douglas case dealt with racial discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., not age discrimination under the ADEA.
The Supreme Court has never “squarely addressed” whether this framework similarly applies
to ADEA actions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Nonetheless, the Court applied the framework to the ADEA in Reeves, stating that “[b]ecause
the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas
framework is fully applicable here.” Id. This court similarly “analyze[s] employment
discrimination claims under a three-step, burden-shifting framework.” Medina v. Ramsey
Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001) (applying the three-step framework to an
ADEA claim); see also, e.g., Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993) (same);
Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 638–39 & n.4 (5th Cir. 1985)
(same).

                                              7
      The plaintiff always has the “[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff.” Tex.
Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In light of this, a
court may consider “the strength of the plaintiff’s prima facie case, the probative
value of the proof that the employer’s explanation is false, and any other
evidence that supports the employer[].”        Reeves, 530 U.S. at 149.      Since
discrimination may be difficult to prove by direct evidence, “the strength of the
circumstantial evidence supporting the plaintiff’s prima facie case and showing
the defendant’s proffered reason is false may be enough to create an inference
of discrimination.” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 900 (5th
Cir. 2000) (citing Reeves, 530 U.S. at 148–49, and LaPierre v. Benson Nissan,
Inc., 86 F.3d 444, 449 (5th Cir. 1996)).
B. Warren’s claim of age discrimination under the ADEA
      Warren first argues that the district court erred when it ruled that he did
not create an issue of material fact regarding a prima facie case of age
discrimination. For the purposes of the present case, we assume, arguendo, that
Warren made a prima facie case of age discrimination.
      At the second step of the McDonnell test, an employer’s burden is satisfied
“if he simply explains what he has done or produces evidence of legitimate
nondiscriminatory reasons.” Bd. of Trs. of Keene State College v. Sweeney, 439
U.S. 24, 25 n.2 (1978) (internal quotation marks and alterations omitted). In the
present case, the city satisfied its burden of providing a nondiscriminatory
reason for not promoting Warren when it stated that “Warren was not a lead
lineman” and that the city “chose[] candidates that were promoted sequentially
through the ranks.” Warren, 2008 WL 4450291, at *2.
      The burden thus shifts to Warren to “prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253. At

                                           8
this stage, Warren first argues that he was qualified for the Foreman position.
Second, he contends that the interview rating forms were used as a ruse in order
to discriminate against him based on age. Third, he claims that the district
court essentially used a “pretext plus” standard when considering his evidence
rebutting the city’s reasons.
      In order to rebut a defendant’s showing of legitimate, nondiscriminatory
reasons for its actions, “[i]t is not enough . . . to dis believe the employer.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Instead, “the factfinder
must believe the plaintiff’s explanation of intentional discrimination.” Id. In a
promotion discrimination claim, a plaintiff may rebut a defendant’s showing “by
providing evidence that he was ‘clearly better qualified’ than the employee
selected for the position at issue.” Celestine v. Petroleos de Venezuella SA, 266
F.3d 343, 357 (5th Cir. 2001) (quoting Scott v. Univ. of Miss., 148 F.3d 493, 508
(5th Cir. 1998)). The question for the trier of fact thus becomes “whether the
employer’s selection of a particular applicant over the plaintiff was motivated by
discrimination, and evidence of the plaintiff’s superior qualification is thus
probative of pretext.” Id. Notably, “the bar is set high for this kind of evidence
because differences in qualifications are generally not probative evidence of
discrimination unless those disparities are ‘of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen
the candidate selected over the plaintiff for the job in question.’” Id. (quoting
Deines v. Tex. Dept. of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th
Cir. 1999)).
      Furthermore, an employer’s “disregard of its own hiring system does not
prove racial discrimination absent a showing that discrimination was a motive
in the action taken.” See Sanchez v. Tex. Comm’n on Alcoholism, 660 F.2d 658,
662 (5th Cir. 1981); see also Lerma v. Bolger, 689 F.2d 589, 592 (5th Cir. 1982).
For example, in Risher v. Aldridge, a procurement agent alleged that the Air

                                         9
Force committed sex discrimination when it failed to promote her. 889 F.2d 592,
594–95 (5th Cir. 1989). Risher alleged that the Air Force had failed to consider
written performance appraisals required by the Air Force Personnel Manual and
Civil Service Reform Act. Id. at 597. This court reasoned that “even if [the Air
Force] did erroneously fail to ‘use’ the objective appraisals in his promotion
decisions, there was absolutely no evidence presented that [it] did so in a
sexually discriminating manner.” Id.
      First, Warren’s assertion of his qualifications does not create a question
of material fact that the city’s reason for not hiring him was pretext. Even
assuming that Warren is minimally qualified for the job under the first prong of
the McDonnell Douglas framework, he does not meet the required burden of
showing that he was “clearly better qualified” than Daniel and West. As the city
notes in its brief, Warren was not working as a lineman day-to-day, but was only
doing so “on call” about five to ten times a year. He also had never worked as a
Lead Lineman and did not have the same up-to-date knowledge as Daniel and
West, who were currently involved in line work. Thus, Warren’s qualifications
argument fails because the difference between his qualifications and those of
Daniel and West were not “of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen [Daniel and
West] over [Warren] for the job in question.” Deines, 164 F.3d at 280–81.
      Second, Warren’s argument about the “completely arbitrary and
subjective” ratings forms is unavailing. It is true that there is some ambiguity
regarding how the interview ratings form worked and whether Timmons even
followed such objective criteria in making his decision. However, as in Risher,
even if Timmons did not “use” the forms correctly or disregarded them, there
was no evidence that he did so in a discriminatory manner with regard to age.
In fact, Warren has not offered any evidence on rebuttal that age motivated how
Timmons distributed the ratings forms or interpreted the results, nor how

                                       10
Warren’s age affected Gunn’s exclusion from the ratings form process. Notably,
in a deposition, Warren stated the following:
      Q. Why do you believe that you were discriminated against on the
      basis of your age?
      A. Well, I think that I was well qualified for the position. And it’s
      apparent these two young guys got it. So if it wasn’t that, what was
      it?
      Q. But you don’t—as you sit here today, you don’t know their
      qualifications for the job?
      A. No sir. But I know mine.
      Q. The reason that you believe it was age was because two other
      guys younger than you got it?
      A. Yes sir.
      Q. Any other reason?
      A. No sir.
(R. at 311.) Since this argument is unavailing, we conclude that “[Warren’s]
evidence to rebut the non-discriminatory reasons offered by [the city] is not so
persuasive so as to support an inference that the real reason was
discrimination.” See Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392,
400 (5th Cir. 2000); see also Crawford, 234 F.3d at 904.
      Finally, Warren is incorrect in arguing that the district court essentially
used a “pretext plus” standard in assessing his argument that the city’s stated
reasons were pretextual. He argues that the district court required “further,
specific evidence that any discrimination that may have been involved was age
discrimination” and that the court therefore contravened Reeves, which he states
held that “the jury may find intentional age discrimination if it finds that the
City’s purported, ‘legitimate, non-discriminatory reasons’ for not promoting




                                       11
Warren are not worthy of credence.” 5 This argument both misconstrues the
district court’s reasoning and the legal thrust of Reeves. The district court in fact
stated that “[d]eviation from normal hiring procedures does not conclusively
establish improper discrimination or pretext” and that here “there [wa]s no
evidence that the use of the process was designed to impermissibly discriminate
against Warren or anyone else.” Warren, 2008 WL 4450291, at *3. It was thus
not holding Warren to a “pretext plus” standard, but was only adhering to this
court’s oft-articulated rule that evidence may founder when it “has no probative
value with respect to the ultimate question before the jury of whether there was
discrimination,” in this case age discrimination. Vadie v. Miss. State Univ., 218
F.3d 365, 373 (5th Cir. 2000). Reeves itself requires a plaintiff to “attempt to
establish that he was the victim of intentional discrimination.” 530 U.S. at 143
(emphasis added). Warren has not done so here.


       5
          In his reply brief, Warren draws his main pretext standard from the Eleventh Circuit
case Jackson v. State of Alabama State Tenure Commission, 405 F.3d 1276, 1289 (11th Cir.
2005), which states that a “district court must evaluate whether the plaintiff has
demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Id (internal quotation marks omitted). This
language is taken from a paragraph in Burdine in which the Supreme Court stated that a
plaintiff must act “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.” 450 U.S. at 256. Warren thus suggests that he has two
options at the third step of the McDonnell Douglas test: either show intentional discrimination
or disprove the city’s reason for not promoting him. Warren contends that he has done both
in this appeal. As explained above, he has not succeeded in showing the former option.
        Furthermore, the second option is not available to Warren because both the Supreme
Court and this circuit have rejected it as a misstated “inadvertence” in dicta. In St. Mary’s
Honor Center, the Court quoted the above language from Burdine, then stated that “the
dictum . . . must be regarded as an inadvertence, to the extent that it describes disproof of the
defendant’s reason as a totally independent, rather than an auxiliary, means of proving
unlawful intent.” 509 U.S. at 517–18 (internal citations omitted). This court has
acknowledged the Supreme Court’s rejection of the “unworthy of credence” statement.
Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 151 n.7 (5th Cir. 1995) (“As the Court made
abundantly clear in St. Mary’s, the employee at all times has the burden of proving, not only
that the employer’s stated reasons were false, but also that those reasons were a pretext for
unlawful discrimination.” (internal citation omitted)).

                                              12
        In sum, we conclude that Warren did not meet his “ultimate burden of
persuading the trier of fact” that the city “intentionally discriminated against”
him. Burdine, 450 U.S. at 253. Considering “the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s explanation
is false, and any other evidence” that supports the city, Reeves, 530 U.S. at
148–49, we affirm the district court’s grant of summary judgment in favor of the
city.
                               V. CONCLUSION
        For the foregoing reasons, we AFFIRM the judgment of the district court.




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