                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 93-8628


                      ENRIQUE A. ARMENDARIZ,

                                               Plaintiff-Appellee,
                                               Cross-Appellant,


                              VERSUS


                  THE PINKERTON TOBACCO COMPANY,

                                               Defendant-Appellant,
                                               Cross Appellee.




          Appeals from the United States District Court
                for the Western District of Texas


                          (June 28, 1995)
Before JONES and DeMOSS, Circuit Judge and TRIMBLE1, District
Judge.
DeMOSS, Circuit Judge:
     In March 1991, Pinkerton Tobacco Company made a decision to

dissolve its Denver sales division. As a result, several field

sales personnel, including 53 year-old Enrique Armendariz, were

discharged.   Pinkerton claimed that Armendariz was discharged

both because his job was being eliminated and the division he

worked in was being rearranged.   Armendariz claimed that he was



     1
      District Judge for the Western District of Louisiana,
sitting by designation.
discharged because of his age, in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 - 34

(West 1985).

      At trial, the jury: (1) found that age was a determining

factor in Pinkerton's decision to discharge Armendariz; (2)

awarded $50,000 in back pay and wages; (3) declined to award

damages for lost future wages and benefits; and (4) found that

Pinkerton's decision to terminate Armendariz constituted willful

discrimination.   After the verdict, Pinkerton renewed its

previous motion for judgment as a matter of law or in the

alternative for new trial.   Armendariz moved to amend the

judgment, or in the alternative for new trial, challenging the

district court's failure to award other equitable relief, such as

front pay or reinstatement, and the district court's failure to

award liquidated damages based on the jury's willfulness finding.

The district court denied both motions and entered judgment for

$50,000 plus costs and attorney's fees.   The district court

declined to award liquidated damages based on its judgment that

the jury's determination of willfulness was not supported by the

evidence.

     Pinkerton Tobacco Company appeals from the jury findings

that its decision to discharge Enrique Armendariz amounted to

willful discrimination on the basis of age and from the district

court's denial of its motion for judgment as a matter of law.

Armendariz cross-appeals from the district court's failure to

award liquidated damages or other equitable relief.   Because we


                                 2
find insufficient evidence to support the jury's verdict, we

REVERSE and RENDER judgment in favor of Pinkerton that plaintiff

Armendariz take nothing.

                            I.   BACKGROUND

     Enrique Armendariz worked for Pinkerton Tobacco Company for

about eight and one-half years selling smokeless tobacco and pipe

tobacco products.2    In March 1991, at age 53, Armendariz was

discharged.   Pinkerton claims that he was discharged because his

job was being eliminated.    Armendariz claims he was discharged

because of his age.

     Pinkerton was organized into five regions which were

subdivided into 29 divisions.     Armendariz worked in the Denver

division which was in the Dallas region.      In March 1991 there

were six field sales representatives in the Denver division:

Ardrey, age 35; Allison, age 34; Brown, age 43; Tucker, age 41;

Boyd, age 48 and Armendariz, age 53.     Each salesperson serviced a

distinct geographic territory near his or her home.      Armendariz

lived in El Paso and his territory was composed of a large

sparsely-populated area that included southwest Texas and

Southern New Mexico.

     Whenever the cost of sales in a given territory exceeded 10

cents per dollar, Pinkerton would consider converting the direct

sales area into one serviced by an independent broker.      It was

undisputed that in 1990, the Denver division's selling costs, and

     2
      Armendariz was employed in 1982 by Liggit & Myers,
Pinkerton's predecessor. When Pinkerton split off from Liggit
and Myers in 1984, it retained Armendariz' services.

                                   3
Armendariz' selling costs in particular, far exceeded both the

national average for the company and the target maximum of 10

cents per dollar of sales.3   Therefore, Dallas regional manager

Darrell Peters asked Denver division manager Jerry Salentine to

suggest ways to reduce those costs.   Salentine responded that

costs could not be significantly reduced because they were

attributable to the large geographic area and relatively sparse

population of the Denver division.    After meeting with all Denver

division sales personnel and working individual routes with the

majority of the sales personnel, Peters recommended to Pinkerton

management that the Denver division be dissolved.

     In March 1991 Pinkerton decided to dissolve the Denver

division.   The plan called for elimination of the Division

manager's position, conversion of the two highest cost

territories (Armendariz' and Brown's) to service by independent

brokers and reassignment of the remaining four viable territories

to existing adjacent divisions.   Thus, division manager Salentine

and salesmen Brown and Armendariz were discharged.   The four

remaining salespeople were reassigned to managers in other

divisions but continued to work the same territories.

Independent brokers assumed all of Brown's territory and the vast

majority, both by geographic area and population, of Armendariz'


     3
      Selling costs nationwide in Pinkerton's 29 divisions
averaged 8 cents per dollar of sales and 43 cents per pound of
product sold. Selling costs in the Denver division averaged 17.9
cents per dollar of sales and $1.01 per pound of product sold.
Armendariz selling costs were 32 cents per dollar of sales and
$1.95 per pound of product sold.

                                  4
territory.   Five eastern counties from Armendariz' territory were

assumed by Jim Fowler, a 34 year-old Pinkerton salesman who had

been servicing adjacent parts of Texas for about one year.

Pinkerton did not consider reassigning Armendariz to a different

division in his existing territory and subsequently refused to

hire him for positions open in other territories.

                        II. STANDARD OF REVIEW

     Pinkerton moved for judgment as a matter of law both before

and after the verdict.     Therefore we review the district court's

denial of Pinkerton's motion for judgment as a matter of law

using the standard enunciated in       Boeing Company v. Shipman, 411

F.2d 365, 374-75 (1969) (en banc).      Under Boeing, judgment as a

matter of law is appropriate if the facts and inferences point so

strongly and overwhelmingly in favor of one party that a

reasonable jury could not have concluded that the ADEA was

violated.    411 F.2d at 374; Molnar v. Ebasco Constructors, Inc.,

986 F.2d 115, 117-18 (5th Cir. 1993); Little v. Republic Refining

Co., Ltd., 924 F.2d 93, 95 (5th Cir. 1991).      A mere scintilla of

evidence is insufficient to present a question for the jury.

Boeing, 411 F.2d at 374.    There must be a conflict in substantial

evidence to create a jury question.      Id. at 375.   Applying Boeing

to this case, the district court's judgment should be reversed

only if the facts and accompanying inferences would not permit

reasonable people to conclude that Pinkerton discharged

Armendariz because of his age.

               III.   ELEMENTS OF PROOF UNDER THE ADEA


                                   5
     The ADEA makes it "unlawful for an employer ... to discharge

any individual ... because of such individual's age." 29 U.S.C. §

623(a)(1).   To prove a violation, a plaintiff must prove

intentional discrimination.   Absent direct evidence, the

plaintiff can create a rebuttable presumption of discrimination

by presenting a prima facie case.     Molnar, 986 F.2d at 118.    A

plaintiff demonstrates a prima facie case by showing that: (1) he

was discharged; (2) he was qualified for the position; (3) he was

within the protected class; and (4) he was either (i) replaced by

someone outside the protected class, (ii) replaced by someone

younger, or (iii) otherwise discharged because of his age.

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).

Once a plaintiff demonstrates a prima facie case, the burden of

production shifts to the defendant to establish a legitimate,

nondiscriminatory reason for its decision.     Id.   Once defendant

meets this burden, the presumption dissolves and the plaintiff

must prove by a preponderance of the evidence that the employer's

articulated reason is but a pretext for age discrimination.       St.

Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2749 (1993).        When,

as here, the case has been fully tried on the merits, the

adequacy of the showing at any particular stage of this

evidentiary process is unimportant.    Molnar, 986 F. 2d at 118.

Instead, the Court must focus on whether a reasonable trier of

fact could have concluded as the jury did.     Id.   In an ADEA case,

the critical test is that the plaintiff must prove that age

"actually played a role in" and "had a determinative influence


                                 6
on" the employer's decision-making process.       Hazen Paper Co. v.

Biggins, 118 S. Ct. 1701, 1706 (1993).     With these principles in

mind, we review the evidence presented in this case.

                           IV.   THE EVIDENCE

     Pinkerton argues that Armendariz' evidence neither

demonstrated a prima facie case of discrimination nor created a

jury issue related to whether Pinkerton's articulated reason for

Armendariz' discharge was in fact a pretext for unlawful

discrimination.4   We agree.

                        A. The Prima Facie Case

     The first two elements of Armendariz' prima facie case ,

that he was within the protected age class and that he was

discharged, were not disputed.     Further, there was substantial

evidence at trial from all sides that Armendariz had been a loyal

and competent employee who was qualified for the position that

was being eliminated.    The parties disagree, however, about

whether this is a "replacement" or a "job elimination" case and,

consequently, about which version of the final prong of the prima

facie case applies.   We cannot agree with Armendariz' contention

that this is a "replacement" case.      It is true that the five most


     4
      Although our concern is not with the sufficiency of the
evidence at any particular stage but with the sufficiency of the
evidence in the case as a whole to establish intentional
discrimination, the parties presented their evidence below and
their arguments on appeal with reference to the McDonnell Douglas
procedural framework. We therefore employ that format to respond
to their various arguments. See, e.g., Elliot v. Group Medical &
Surgical Svc., 714 F.2d 556 (5th Cir. 1983), cert. denied, 467
U.S. 1215 (1984) (analyzing the sufficiency of the evidence with
reference to the McDonnell Douglas format).

                                    7
eastern counties of Armendariz' territory were assumed by

existing Pinkerton sales representative Jim Fowler (34 years-old)

who had been servicing adjacent areas out of the Abilene division

for about one year.   The evidence established, however, that the

vast majority of Armendariz' territory, both in terms of

geographic area and population, was assumed by an independent

broker.5   The fact that a small percentage of Armendariz' work

was assumed by another Pinkerton employee (at no increase in pay)

does not change the fact that Armendariz' position itself was

eliminated.

     Pinkerton correctly characterizes Armendariz' discharge as a

"reduction in force" or "job elimination," in which case

Armendariz was required to present evidence that would allow the

jury to conclude that Pinkerton did not treat age as a neutral

factor in its decision as to whether to retain or relocate

Armendariz.   Amburgey v. Cohart Refractories Corp.,   936 F.2d

805, 812 (5th Cir. 1991).   Armendariz responded to that burden by

alleging that Pinkerton did not relocate him or rehire him for

positions that subsequently became open in other territories.

Apparently this was offered both as to Armendariz prima facie

case and as circumstantial evidence that age, in addition to

purely economic factors, motivated Pinkerton's decision.    The

evidence is not probative on either point.   Armendariz did not

     5
      Armendariz did not present any evidence to substantiate his
claim that the area assumed by Fowler included the most populous
and therefore most profitable portion of his territory.
Pinkerton produced evidence that the assumed area constituted
only fourteen percent, by population, of Armendariz' territory.

                                 8
allege or offer proof that there were openings, even in other

territories, at the time he was terminated.    Pinkerton testified

that there were none, and it was undisputed that Pinkerton did

not relocate any field sales personnel when the Denver office

closed.    Further, Pinkerton produced evidence that it has a

longstanding policy against relocating its field sales personnel

both because of the high costs involved and because they prefer

salesmen who have established relationships within their assigned

geographic territories.    Armendariz offered no evidence that

Pinkerton had ever transferred a field sales representative,

either before or after Armendariz' termination.     Finally, the

fact that Pinkerton did not offer Armendariz subsequently

available positions in other cities within the Dallas region is

not probative, at least in this case, on the issue of whether

Pinkerton discharged Armendariz because of his age.

          B. Pinkerton's Legitimate Nondiscriminatory Reason

     Pinkerton claimed at trial that it reluctantly discharged

Armendariz, whom it considered a competent salesman, as part of a

job elimination arising from dissolution of the Denver division.

Job elimination or office consolidation is a sufficient

nondiscriminatory reason for discharge under the ADEA.

Bodenheimer, 5 F.3d at 957-58; Hanchey v. Energas Co., 925 F.2d

96, 98 (5th Cir. 1990).

     Pinkerton claimed that it traditionally considered

dissolving a direct sales area and converting it to independent

brokers when the selling cost per dollar exceeded 10 cents.      At


                                  9
the time that Armendariz was discharged the Denver division's

selling cost per dollar was 17.9 cents, significantly higher than

both the 10 cent maximum benchmark and the 8 cent company-wide

average.    In addition, the Denver division's selling cost per

pound was $ 1.01, higher than all but one of the 29 divisions and

also substantially higher than the company-wide average of 43

cents per pound.    Armendariz and Brown had the highest expenses

and the lowest sales volume of any of the six Denver division

salesmen, by a substantial margin.6       The bottom line, Pinkerton

states, was that the Denver division could be more economically

serviced.

     Peters, the Dallas regional manager, cautioned Denver

division manager, Jerry Salentine, in 1990 that Denver would have

to find ways to reduce its selling costs.      Salentine responded

that this could not be done.    In the fall of 1990, at least two

meetings were held, with Armendariz in attendance, in which

Peters advised Denver division sales personnel that the high

costs were unacceptable.    During that time Peters also worked

individual routes with the majority of the Denver division sales

representatives, including Armendariz, to determine whether costs

     6
      Selling costs for individual Denver division field sales
representatives were as follows:

Salesperson      Total Sales    Sales Cost/Pound      Sales
Cost/Dollar
Ardrey           $866,306.00    $ .3226               $   .0551
Tucker           $650,488.00    $ .3952               $   .0703
Boyd             $522,035.00    $ .4873               $   .0868
Allison          $230,970.00    $1.3230               $   .2255
Armendariz       $166,594.00    $1.9577               $   .3279
Brown            $100,439.00    $3.6908               $   .5996

                                 10
could be reduced.   Finally, in early 1991 Peters concluded that

Salentine was right and proposed to Pinkerton management the plan

that was eventually approved for reducing marketing costs in the

geographic area that made up the Denver division.

     The plan proposed by Peters called for elimination of the

Denver division, conversion of the two highest cost territories,

Brown's and Armendariz', to independent broker sales and

reassignment of the remaining four territories to other

divisions.   After the plan was approved by Peter's superiors in

Pinkerton management,   Salentine, Brown and Armendariz were

terminated and the remaining four salesmen were reassigned to new

managers but continued servicing their home territories.   By

converting Armendariz territory to independent broker service,

Pinkerton reduced the cost of selling in Armendariz' territory

from $ 55,000 in 1990 to $ 24,000 in the year before trial.

 C. Evidence that Pinkerton's Reason was a Pretext for Unlawful
                         Discrimination

     Armendariz did not attack at trial, and does not attack on

appeal, the objective truth or accuracy of the financial figures

advanced by Pinkerton to justify its decision. To demonstrate that

Pinkerton's reason was a pretext for unlawful discrimination,

Armendariz offers evidence from which he argues the jury could have

found that: (1) Pinkerton's reason lacked veracity; and (2) that

unlawful discrimination was Pinkerton's real motivation.

     Armendariz argues the jury could have found that Pinkerton's

asserted reason lacked veracity from evidence that: (1) Peters was

not candid about the fact Armendariz' job was in jeopardy when

                                11
asked by Armendariz in the fall of 1990; (2) Peters testimony that

Armendariz was eligible for rehire conflicted with the termination

report which indicated that Armendariz would not be considered for

rehire; and (3) Peters inability to testify at trial that Pinkerton

was   loosing   money    on   the    Denver   division   as   a   whole   or   on

Armendariz' territory in particular. Armendariz relies on language

from Texas Department of Community Affairs v. Burdine, 101 S. Ct.

1089, 1095 (1981), which suggests that pretext can be established

merely "by showing that the employer's proffered explanation is

unworthy of credence."7             However as Armendariz has failed to

produce sufficient evidence from which the jury could disbelieve

the employer's stated reason, we need not reach the question of

whether Armendariz' construction of Burdine is correct.

      In any event, whether Armendariz was warned that his job was

in jeopardy is immaterial in this case to a finding of age

discrimination.      The ADEA does not prohibit termination without

warning.        Further,      Armendariz      himself    testified    that     he

participated in the two meetings in which Dallas regional manager

Peters expressed grave concern about the high costs of doing

business in the Denver division. Second, Peters testified at trial


      7
            By doing so, Armendariz has chosen to ignore the Supreme Court's
disavowal of that quote in St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742,
2753 (1993), which states: "we think the [Burdine] dictum at issue here 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." 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. St. Mary's, 113 S. Ct. at 2751-53. Otherwise, the ADEA
would be converted into a statute prohibiting employers from firing people within
the protected class without cause. See Burns v. Texas City Refining, 890 F.2d
747, 750 (5th Cir. 1989); Bienkowski v. American Airlines, Inc., 851 F.2d 1503,
1508 n.6 (5th Cir. 1988).

                                        12
that Armendariz was qualified to be rehired and explained that the

intra-company report indicated otherwise because Pinkerton did not

anticipate hiring anyone else in the El Paso area.                Finally,

Peters' inability to furnish profit and loss figures at trial is

likewise immaterial.       Armendariz argues that profit and loss

evidence was necessary to establish the "business necessity" of

Pinkerton's decision to dissolve the Denver division.           Armendariz

has apparently confused Title VII disparate impact case law with

his own ADEA claim.       Surely the ADEA does not require that an

employer prove that it is in fact loosing money before it can take

a nondiscriminatory and legitimate course of action to make more.

Armendariz did not offer substantial evidence that Pinkerton's

asserted reason lacked veracity.

     Armendariz next offers several equally unavailing lines of

evidence that Pinkerton's decision to discharge him was motivated

by impermissible factors.        Ample time at trial and a considerable

portion of the plaintiff's closing argument was devoted to whether

Armendariz'   high     salary    or   fast-approaching   eligibility     for

retirement benefits motivated Pinkerton's decision. Even if proven

true, that would not be sufficient alone to support a finding of

age discrimination because the ADEA prohibits discrimination on the

basis of age, not salary or seniority.           See Hazen Paper Co. v.

Biggins, 113 S. Ct. 1701, 1706-08 (1993); Amburgey v. Cohart

Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir. 1991).

Further, undisputed and strikingly clear evidence established that

Armendariz'   salary    (which    exceeded   that   of   the   lowest   paid


                                      13
salesperson in the division by only ten percent) was not the cause

of the high costs associated with servicing Armendariz' territory.

In fact, even if Armendariz had been paid no salary at all, his

cost per dollar of sales would still have exceeded both the

national average for all Pinkerton divisions as well as Pinkerton's

10 cents per dollar of sales maximum figure for direct service

areas.   Similarly, the undisputed evidence at trial was that

Armendariz was fully vested in Pinkerton's retirement plan when he

was discharged and that he became eligible for early retirement

benefits in December 1992.

     Armendariz   did   not     offer   evidence   that    Pinkerton

systematically disfavored older employees. In fact he seemed to be

unaware at trial just what the ages of the discharged and retained

employees were.   Armendariz' initial EEOC complaint (which was

returned with a finding of "no discrimination")    claimed that the

two oldest sales representatives in the Denver region were selected

for termination while the retained employees were all younger.   At

trial, however, it was established that Boyd, who was retained, was

in fact four years older than Brown, who was discharged.     Of the

four salespeople retained and reassigned to other divisions, two

were younger than forty      and two were older than forty.      In

addition, Armendariz was under the impression that all of the

division managers in the Dallas region were under forty.    In fact,

two of the four managers were over forty years of age.     Finally,

Armendariz cited as evidence of age discrimination the fact that he

had not been offered Ardrey's position when that salesman resigned


                                 14
several months after Armendariz' discharge.                Aside from the fact

that Ardrey's territory was some distance away from Armendariz'

own, Ardrey was replaced by a salesman who, at age 48, was well

within the protected class.

       Armendariz' case ultimately rests on his own subjective belief

and the belief of another Pinkerton employee, Sheila Ratliff, that

Armendariz had been discriminated against on the basis of age.                 We

have   traditionally   been     very      cautious   about    self-serving    and

conclusory    testimony      based   on    a   subjective     belief   that   age

discrimination occurred.        See, e.g., Little v. Republic Refining

Co., 924 F.2d 93, 96 (5th Cir. 1991).            Armendariz own belief that

he was discriminated against is further undermined by his admission

that his assumptions about the ages of other employees hired and

fired were inaccurate and by his failure to rebut in any way

Pinkerton's demonstrated reason for his discharge.                 See Molnar v.

Ebasco Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993)

(employee's subjective belief that age discrimination occurred is

insufficient to create jury issue when employer articulates an

adequate nondiscriminatory reason for the discharge).

       Sheila Ratliff, age 51, is a Pinkerton field sales coordinator

who works with regional manager Peters, also age 51, on a daily

basis. She testified at trial by deposition summary only. Ratliff

testified    that   Peters    had    "programmed     her     for   failure"   and

repeatedly humiliated her on the job.            As a result of the stress,

she began having problems with her memory.              At that point Peters

began harassing her with comments about how she was "getting old"


                                       15
and "losing her memory."            Ratliff stated that she had filed

numerous complaints about Peters with Pinkerton's Human Resources

Department because she felt his behavior jeopardized her job. Such

remarks, if they were made, were "stray remarks" which were too

remote and vague to be probative of age discrimination against

Armendariz.     See Waggoner v. City of Garland, 987 F.2d 1160, 1166

(5th Cir. 1993); Turner v. North Am. Rubber, Inc., 979 F.2d 55, 59

(5th Cir. 1992) (age related comments that are vague and remote in

time are not sufficient to establish age discrimination).

      As to Armendariz, Ratliff expressed the opinion that Peters

had   "blatantly discriminated" against Armendariz on the basis of

age by discharging him to avoid paying retirement benefits.                As

discussed above, the ADEA does not provide a cause of action for

interference with retirement benefits that are based on seniority,

without evidence the decision was motivated by age.             Hazen Paper,

113 S. Ct. at 1706-08.         In any event, Ratliff admitted that her

opinion about Armendariz was "only conjecture" and stated that she

concurred with the decision to close the Denver office as well as

the decision to allow independent brokers to handle high-cost

territories in the division.

      Neither    Armendariz'    nor    Ratliff's   subjective   belief   that

Armendariz had been discriminated against was sufficient to create

a jury issue as to whether Pinkerton's reason was a pretext for age

discrimination. Molnar, 986 F.2d at 119 (subjective belief that age

discrimination was basis of discharge is insufficient to make an

issue   for     the   jury   when     employer   articulates    an   adequate


                                       16
nondiscriminatory reason); Little, 924 F.2d at 96 (subjective

belief of employee and co-worker that age motivated the employer's

action is of little value and can not be the basis of judicial

relief); Amburgey v. Cohart Refractories Corp., Inc. 936 F.2d 805,

814 n.40 (5th Cir. 1991); Elliot v. Group Medical & Surgical

Service, 714 F.2d 556, 567 (5th Cir. 1983) (when the employee does

not seriously dispute the objective truth of rational reasons

articulated by the employer, pretext can not be established by a

subjective belief that discrimination motivated the employer's

action), cert. denied, 476 U.S. 1215 (1984).

                               V.   CONCLUSION

      After a thorough review of the entire record, we conclude that

the jury's verdict was not supported by substantial evidence.            The

jury could not have reasonably concluded that Armendariz met his

burden of establishing a violation of the ADEA. Armendariz did not

produce evidence sufficient to meet his prima facie burden of

showing that Pinkerton did not treat age neutrally in its decision

to   dissolve   the   Denver   division    and   eliminate   his   position.

Although he complains that Pinkerton did not offer him a transfer

to another Pinkerton territory, Armendariz did not produce evidence

that Pinkerton had relocated any other salesmen and Pinkerton

adduced evidence that it had not.          Significantly, Armendariz did

not offer evidence that attacked the truth or accuracy of the

evidence presented by Pinkerton concerning its financial objective

of reducing the cost of sales in the ailing Denver division.

Basically, all Armendariz offered to rebut Pinkerton's articulated


                                      17
reason was the subjective belief of a fellow employee, along with

his     own,     that   unlawful   age   discrimination   drove    Pinkerton's

decision to discharge him. In the face of overwhelming evidence to

the contrary, that evidence is insufficient to support the jury's

verdict in his favor. Because we find the evidence insufficient to

support the jury's verdict, Armendariz' points on cross appeal

concerning damages are necessarily without merit.                 The district

court's judgment based on the jury finding is REVERSED and judgment

is RENDERED that the plaintiff take nothing.




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