                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 96-60875
                        _____________________



WINNIE FAYE GRUBBS,

                                                Plaintiff-Appellant,

                                versus

NORTH MISSISSIPPI MEDICAL
CENTER, INCORPORATED, ET AL.,

                                                          Defendants,

PONTOTOC HEALTH SERVICES,
INCORPORATED; NORTH MISSISSIPPI
HEALTH SERVICES,

                                                Defendants-Appellees.

_________________________________________________________________

      Appeal from the United States District Court for the
                 Northern District of Mississippi
                            (95-CV-87)
_________________________________________________________________
                          March 17, 1998

Before GIBSON,* JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:**

     Winnie Faye Grubbs worked for Pontotoc Health Services (“PHS”)

and its parent corporation, North Mississippi Health Services


     *
      Circuit Judge for the Eighth Circuit, 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this opinion should not be published and is not precedent except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.
(“NMHS”),    as   a   licensed   practical     nurse   (“LPN”)    until    her

employment ended in July 1994 because of a reduction in force.

Grubbs filed suit against PHS and NMHS alleging that her employment

was terminated and that she was not rehired because of illegal age

discrimination in violation of the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq.          The district court granted

the defendants’ motion for summary judgment and, finding no error,

we affirm.

                                     I

     In this opinion, we will refer to the employer as NMHS.              NMHS

operates a small hospital and nursing home on the same grounds in

Pontotoc, Mississippi.       The two facilities share administrative

services and common personnel/employment policies.            Grubbs worked

as a LPN at the hospital for over twenty years.          During her tenure

there, she gained extensive experience in several areas of practice

and always received good performance ratings.

     In   June    1994,   Fred   Hood,   the   hospital’s   administrator,

informed Mae Jackson, the hospital’s Director of Nursing, that he

planned to reduce the number of hospital beds from thirty-two to

seventeen.    The task then fell to Jackson to suggest appropriate

staff   adjustments.      Jackson   recommended    reducing      the   current

hospital staff of eight full-time LPNs and one part-time LPN to




                                     2
four full-time LPNs by terminating the LPNs who were not certified

to perform IV therapy.1

     Four full-time hospital LPNs were IV certified as of July

1994: Brenda Franks (49), Peggy Lauderdale (52), Wanda Gann (53),

and Miriam Smitherman (67).   The remaining four full-time hospital

LPNs and the part-time hospital LPN were not certified: Cindy

Corley (22), Dora Day (49), Grubbs (58), Hazel Rakestraw (65), and

Anita Hubbard (38).2   On July 19, Jackson, who was 62, notified the

non-certified LPNs of the decision to immediately eliminate their

job positions.   NMHS provided each LPN included in the RIF a

thirty-day grace period of pay in lieu of notice.

     1
      In 1992, Mississippi adopted a certification procedure that
allowed certified LPNs to treat patients with intravenous (“IV”)
therapy. Before 1992, only registered nurses (“RNs”) could perform
such techniques. As a result of the state’s amended regulations,
NMHS’ Education Department began offering IV therapy certification
classes in Tupelo, Mississippi. The eligibility requirements for
enrollment included a score of at least 90% on the anatomy and
physiology portions of the State Nursing Exam and clinical
experience for at least two of the last five years.           NMHS’
Education Department provided PHS a list of eligible LPNs and
review kits for the ineligible LPNs.
     Grubbs was initially ineligible to enroll due to her original
score of 89.5% on the requisite portion of the State Exam. She
obtained a review kit, however, retook the exam and scored
sufficiently high to qualify for enrollment in 1993. Because of
work schedules and other conflicts, Grubbs did not enroll until the
August 1994 class. (Grubbs maintains that age discrimination also
contributed to her later enrollment date. This issue is discussed
infra.). Before her beginning class date, Grubbs was laid off from
work.
     2
      Hubbard was employed as a part-time LPN at the hospital
before the RIF.




                                  3
     Of   the   five   non-certified    LPNs    whose   positions   NMHS

eliminated, the three younger women regained employment with NMHS

before their thirty-day grace period had expired. Only Grubbs (58)

and Rakestraw (65) were not reemployed.        Grubbs filed a complaint

with the EEOC alleging age discrimination and later filed this

federal action under the ADEA.         In due course, NMHS moved for

summary judgment and the district court granted that motion.

Grubbs now appeals.

                                 II

     We first examine the district court’s decision.        In granting

summary judgment, the district court addressed Grubbs’s prima facie

case as two separate issues: (1) the reduction of the workforce and

(2) the rehire of the affected nurses.

     After noting the ages of the four retained LPNs--Smitherman

(67), Gann (53), Lauderdale (52), and Franks (49)--the district

court questioned whether Grubbs had met her prima facie burden with

respect to the reduction-in-force aspect of her lawsuit. The court

noted that “[t]he age differences . . . arguably would not lead the

fact finder reasonably to conclude that the defendants consciously

refused to retain the plaintiff because of her age.” Nevertheless,

the court assumed that the plaintiff at least raised a genuine

issue of material fact with respect to her prima facie case

regarding her inclusion in the RIF.




                                  4
     Then, turning to the rehire issue, the court found it less

troubling to identify evidence of the prima facie elements.          The

court relied primarily on the age differential between Grubbs and

the rehired LPNs--Corley (22), Day (49), and Hubbard (38)--to infer

that the defendants did not treat age neutrally in their decision

to rehire.   Thus, assuming that Grubbs had met her prima facie

burden with respect to the workforce reduction issue and finding

that she did so with respect to the rehire issue, the court then

addressed the burden-shifting analysis under McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

     The district court concluded that the undisputed evidence

showed that the reduction in patient census in the early 1990s

dictated a concomitant decrease of staff.        Management considered

different alternatives and determined that the IV certified LPNs

should be retained and the non-IV certified positions eliminated.

Grubbs, as a non-IV certified LPN fell into the latter category.

With respect to rehire, the district court noted the defendants’

undisputed assertion that the plaintiff failed to apply or even to

inquire   about   any   available   positions.    The   district   court

therefore concluded that the defendants adequately had met their

articulation burden and proceeded to address whether a genuine

issue of material fact existed with regard to the ultimate question

of discrimination.




                                    5
      The district court determined that Grubbs had failed to

present a genuine issue of material fact as to her claim that PHS

eliminated her job position because of her age. Comparing the ages

of the LPNs who were retained with the ages of those included in

the RIF, the court held that no reasonable juror could find that

age motivated the defendants with respect to the reduction in

force, especially when Grubbs had offered no other evidence on this

issue. The district court further determined that the evidence was

insufficient to avoid summary judgment with respect to Grubbs’s

rehire claim.       The court acknowledged that NMHS had rehired or

relocated the three younger LPNs in different positions within

thirty days of their layoff.           The court noted, however, that each

of   the   three   had     submitted    transfer   slips,     applications,   or

otherwise expressed an interest in remaining employed with NMHS; on

the other hand, the court observed, Grubbs had done nothing to

indicate an interest in rehire. Additionally, the court noted that

at least two LPNs hired after the RIF were in their fifties,3

further dispelling any inference of age bias on behalf of NMHS.

The district       court    therefore   held   that   there    was   no   genuine

material fact issue with respect to Grubbs’s preferential rehire


      3
      A ten-bed rehabilitation unit was opened in October 1995 in
an existing wing of the PHS hospital. New hires were made to staff
this facility. The LPN staff were not required to be IV certified
at this unit.




                                         6
claim and granted summary judgment to the defendants, dismissing

the complaint.

                                 III

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

novo, applying the same standard as would the district court.

Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559

(5th Cir. 1997); Estate of Bonner v. United States, 84 F.3d 196

(5th Cir. 1996).    Summary judgment is proper where the pleadings

and summary judgment evidence present no genuine issue of material

fact and the moving party is entitled to a judgment as a matter of

law.   Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

321-22, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).     A factual

dispute will preclude an award of summary judgment if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.    Anderson v. Liberty Lobby, Inc., 477 U.S.242,

248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).   When ruling on

a motion for summary judgment, the inferences reasonably drawn from

the underlying facts in the record must be viewed in the light most

favorable to the nonmovant.   Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538

(1986).   The court may not weigh the evidence nor make credibility

determinations.    Anderson, 477 U.S. at 255, 106 S.Ct. at 2511.

                                 IV




                                  7
                                      A

     The ADEA prohibits an employer from discriminating against an

individual with respect to hiring, discharge, “compensation, terms,

conditions,   or   privileges    of       employment,   because   of   such

individual’s age.”   29 U.S.C. § 623 (a)(1) (emphasis added).           We

recite the production of proof in an ADEA case by rote.                The

plaintiff must first establish the existence of a prima facie case

of discrimination.   Once the prima facie case is established, an

inference of discrimination arises. To rebut this presumption, the

defendant employer must articulate a legitimate, nondiscriminatory

reason for the subject action.        The presumption of discrimination

then disappears and the plaintiff must present probative evidence

that age discrimination was the true motive of the employer.           St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742,

2747-48, 125 L.Ed.2d 407 (1993); Brown v. CSC Logic, Inc., 82 F.3d

651, 654 (5th Cir. 1996).

     Generally, in order to demonstrate a prima facie case of age

discrimination, a plaintiff must present credible evidence that:

1) her employment was terminated; 2) she was qualified for the

position; 3) she was within the protected class at the time of the

discharge; and 4) she was either i) replaced by someone outside the

protected class; ii) replaced by someone younger, or iii) otherwise

discharged because of her age.    Brown, 82 F.3d at 654; Nichols, 81




                                      8
F.3d at 41; Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th

Cir. 1996) (en banc); Meinecke v. H&R Block of Houston, 66 F.3d 77,

84 (5th Cir. 1995); Armendariz v. Pinkerton Tobacco Co., 58 F.3d

144, 149 (5th Cir. 1995); Amburgey v. Corhart Refractories Corp.,

936 F.2d 805, 812 (5th Cir. 1991); cf. Uffelman v. Lone Star Steel

Co., 863 F.2d 404, 407 (5th Cir. 1989).      It is clear that Grubbs’s

employment was terminated, that she was within the protected age

group, and that she was qualified for the position that she

occupied.   She was not replaced, however.    Grubbs then, in order to

establish her prima facie case, must present some credible evidence

that she suffered an adverse employment decision because of her

age.    O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,

___, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).       Grubbs’s claim

of   discrimination   initially   arises   from   her   selection   in   a

reduction in the workforce.   Brown, 82 F.3d at 654-55; Armendariz,

58 F.3d at 149-50.     She also contends, however, that she was a

victim of age discrimination in the rehire of the LPNs after the

RIF. We will discuss separately these two issues, first addressing

the reduction in force claim.

                                   B

       Getting to the bottom line quickly, our review of the record

wholly fails to support any inference that the employer included

Grubbs in the RIF because of her age.         See Hazen Paper Co. v.




                                   9
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338

(1993) (noting plaintiff must demonstrate that age “actually played

a role in” and “had a determinative influence” in employer’s

decision).    The retained hospital LPNs were ages 49, 52, 53, and

67.   The terminated hospital LPNs were ages 22, 38, 49, 58, and 65.

The average age of the retained LPNs was 55 while the average age

of the LPNs included in the reduction in force was 46.                These

statistics from such a small sampling do not alone exonerate the

employer;    however,   they   clearly   are     more   supportive   of   the

employers’   defense    than   supportive   of   Grubbs’s   discrimination

claims.     See Amburgey, 936 F.2d at 813 (noting that while not

dispositive, evidence that majority of retained employees were in

protected age group is probative of age discrimination issue).

      Furthermore, it is undisputed that the patient census at PHS

had declined and, accordingly, that the reduction in LPNs was

justified.    Grubbs does not challenge management’s decision to

reduce the staff according to IV certification status;4 nor has she

provided any credible evidence demonstrating that this criterion

was applied discriminatorily in the selection of those chosen for

lay-off.    Indeed, the evidence is undisputed that none of the non-

IV certified full-time hospital LPN positions remained after the

      4
      Grubbs maintains that NMHS discriminated against her on the
basis of her age by delaying her training for IV certification.
The record reflects no evidence that substantiates such a claim.




                                    10
RIF.    Finally, Grubbs has produced no evidence of animus toward

older nurses on the part of any decision maker involved in the RIF.

       In sum, Grubbs has failed to provide evidence of any kind to

suggest that she was unlawfully selected as part of the RIF because

of her age.   Rhodes, 75 F.3d at 994 (“[A] disparate treatment claim

cannot succeed unless the employee’s protected trait actually

played a role in . . . [the employer’s decisionmaking process] and

had a determinative influence on the outcome.”) (quoting Hazen

Paper Co., 507 U.S. at 610, 113 S.Ct. at 1706, 123 L.Ed.2d 338

(1993)).    The district court’s grant of summary judgment in favor

of PHS and NMHS against Grubbs with respect to the RIF was, in all

respects, proper.

                                  C

       We now turn our focus to the second issue in this case--

Grubbs’s allegation that PHS discriminated against her by failing

to rehire her after her inclusion in the RIF.   NMHS rehired Corley

(22), Hubbard (38), and Day (49) in new positions, but did not

rehire either Grubbs (58) or Rakestraw (65). Grubbs maintains that

she has demonstrated a prima facie case of age discrimination for

failure to rehire because she was qualified for the available

positions and the employer hired similarly situated younger LPNs.

NMHS responds that it rehired the younger LPNs because those nurses

applied for the open positions. Grubbs, on the other hand, neither




                                 11
inquired about nor applied for any position, but instead indicated

that she had no interest in alternative employment with NMHS.

Grubbs counters that these proffered reasons are a pretext for

discrimination because NMHS informed the three younger LPNs of the

open positions at PHS, but failed to so inform Grubbs.                We

therefore turn to examine whether the employer’s stated reason for

not rehiring Grubbs was a pretext for age discrimination.

     We start with the premise that the record reflects no policy

or practice of the employer that obligated it to transfer, recall,

or otherwise rehire Grubbs or any other laid off employee included

in the RIF.   Nor does the record reflect any established policy or

practice pursuant to which the other younger nurses were rehired,

except that each let it be known that they wished to be rehired.

     The record evidence, reviewed in the light most favorable to

Grubbs, shows the following: NMHS posted a notice of open positions

at the nursing home and hospital the day before the LPNs were

notified   that   they   were   included   in   the   RIF.5   Upon   her

termination, Jackson told Corley that she could inquire of Marie

Barnes for other openings at NMHS facilities.         Corley did so and

Barnes told her of an available LPN position at the nursing home

     5
      These included a full-time LPN position in the nursing home
and an on-call LPN position in the hospital. The on-call position
specified IV certification. Nursing home LPNs were not required to
be IV certified. All hospital LPNs were required to participate in
the certification program as soon as their schedules allowed.




                                   12
and one at the Tupelo facility.       Corley testified that she had also

learned of the nursing home position from the posted notice.6             She

applied for both positions, obtained the nursing home position, and

began work two or three days later.

     Day testified that Jackson “may” have told her about the open

Tupelo positions, but she could not clearly recall.                 No one in

management, however, informed her of any openings at PHS at that

time. She heard “through the grapevine” soon after her termination

that one of the nurses was leaving the nursing home and that a

position would thus be available.           She applied for that job, but

was passed over because of Corley’s seniority.              When Corley was

hired    at   the   nursing   home,   Day   inquired   of   other   available

positions.     The record is clear that Day “expressed an interest in

the part-time or relief position in the acute care and she . . .

was referred back to Mae Jackson.”          A couple weeks later, Jackson

called and offered Day the part-time position.              Day accepted and

worked part-time at the hospital until she obtained a full time

position at the nursing home in October.

     Similarly, Hubbard applied to fill the position of the posted

on-call hospital LPN and ultimately obtained that job.                 Grubbs

argues that NMHS discriminated against her by offering Hubbard the

     6
      Jackson did not inform Corley of any available positions, and
Barnes tendered no information to Corley until Corley inquired of
Barnes and expressed her interest in continued employment.




                                      13
on-call position “on the spot.” The record, however, supports only

that Hubbard was told she was terminated and that she could apply

for the on-call position if she desired. This on-call position was

one of the positions that had been posted previous to the RIF.7

     Thus, there is no genuine issue of material fact with respect

to the assertion of NMHS that each of the three LPNs who were

rehired submitted transfer requests or applications and otherwise

displayed an interest in reemployment within the NMHS family.

Grubbs had at least constructive knowledge of the two available

positions at the PHS facilities; yet, she did nothing to show an

interest in either of those jobs.    Furthermore, she presents no

evidence disputing that she could have obtained information of the

other available positions from any number of convenient sources,

including inquiring of Jackson or Barnes; yet, again, she did

nothing.   Indeed, when initially told that she was included in the

RIF, Grubbs immediately threatened to contact an attorney and acted

in a manner hostile toward further employment with NMHS.   In sum,

the record does not reflect that the employer ever denied Grubbs’s

request or application for rehire.

     As we have earlier noted, the employer was under no duty to

rehire Grubbs; it was only under a duty not to discriminate against

     7
      The on-call position was posted as an IV certified position.
Hubbard was hired with the understanding that she would obtain
certification as soon as her schedule permitted.




                                14
her.       Although   NMHS   did    not    affirmatively   inform   Grubbs   of

available positions, there is no evidence that its failure to do so

was motivated by an unlawful animus based on age.8              NMHS took no

steps to conceal the information about available positions, which

was easily accessible to Grubbs.               The simple matter is that the

rehired LPNs expressed an interest in continued employment with

NMHS and took the necessary action to ensure that they were

rehired; Grubbs did not.           We therefore must conclude that Grubbs

failed to show that the employer’s stated reason for its failure to

rehire her--that she failed to apply for, or otherwise indicate an

interest in, rehire--was a pretext for age discrimination. Summary

judgment was therefore proper as against Grubbs’s failure to rehire

claim.9

       8
      Grubbs attributes the majority of the discriminatory action
and intent on behalf of NMHS to Jackson. Mae Jackson was about 61-
-three years older than Grubbs.          Although certainly not
dispositive, that the decision-maker is also a member of the
protected class may reasonably lend itself to an inference of
nondiscrimination. Brown, 82 F.3d at 658 (citing LeBlanc v. Great
American Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993)).
       9
      As a final argument, Grubbs maintains that PHS and NMHS
violated their own termination policy when they offered positions
to the three younger LPNs over Grubbs and that this violation is
evidence of age-based discrimination.     The hospital’s employee
handbook provides:
     The term [lay-off] refers to termination of employment by
     the hospital because of lack of work. Final notice, (or
     pay in lieu of notice), will be for the same number of
     weeks required of the employee as explained in the policy
     on resignation.    Layoffs will be based on length of
     continuous service and job performance.     Persons with




                                          15
                                V

     For the foregoing reasons, the district court’s award of

summary judgment to PHS and NMHS on the merits of the claim brought

by Grubbs is

                                                  A F F I R M E D.




     good work records will be eligible for recall.
This policy provides only for eligibility for recall. Nothing in
the policy establishes a system obligating recall, especially when
the job previously held was eliminated. Here, there simply is no
evidence that NMHS considered her ineligible for rehire. In the
absence of some indication from Grubbs that she wished to be
rehired, NMHS was never called upon to make a decision as to her
“eligibility.”




                                16
