               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 95-60006

                         Summary Calendar




CHARLES D. KELLY; THOMAS C. BABB
                                           Plaintiffs-Appellees,

MARSHALL DURBIN FARMS, INC.
                              versus

                                           Defendant-Appellant.




          Appeal from the United States District Court
            For the Southern District of Mississippi
                           (93-CV-45)

                           March 1, 1996



Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Charles Kelly and Thomas Babb claimed that their employer,

Marshall Durbin, Inc., terminated them because of their age in

violation of the Age Discrimination in Employment Act.      After a

three-and-one-half day trial, a jury agreed, but found that no

willful violation of the ADEA occurred.      The sole issue on this

appeal by Marshall Durbin is whether the evidence was sufficient to


     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
support the jury's verdict.     Having reviewed the entirety of the

trial testimony in this case, we find that the evidence was

sufficient as to both Mr. Kelly and Mr. Babb.       We therefore affirm.

     We have recently outlined the approach proper approach to a

challenge   to   the   sufficiency   of   the   evidence   to   support   a

plaintiff's verdict in an employment discrimination suit.           Under

Rhodes v. Guiberson Oil Tools, No. 95-60006, “a plaintiff can avoid

summary judgment and judgment as a matter of law if the evidence

taken as a whole (1) creates a fact issue as to whether each of the

employer’s stated reasons was what actually motivated the employer

and (2) creates a reasonable inference that age was a determinative

factor in the actions of which plaintiff complains.”        In addition,

and of special significance to this case, Rhodes teaches that “[a]

jury may be able to infer discriminatory intent in an appropriate

case from substantial evidence that the employer’s reasons are

false.   The evidence may, for example, strongly indicate that the

employer has introduced fabricated justifications for an employee’s

discharge, and not otherwise suggest a credible nondiscriminatory

explanation.”

     Because of the complicated nature of the facts surrounding the

discharges and the nature of the industry in which the plaintiffs

labored, we provide only a brief summary of the background facts in

this case, and discuss further relevant facts in the context of our

legal analysis.

                                     I




                                     2
     Marshall Durbin is a manufacturer of poultry products.                      The

business    proceeded       in    part     via   an     independent    contractor

relationship between Marshall Durbin and growers working on farms.

Marshall Durbin in essence sold baby chicks, feed, vaccine, and

other necessities to growers.             The growers raised the chicks to a

certain level of maturity. Throughout this time, "servicemen" paid

by Marshall Durbin visited the farms frequently to assure that all

was well with the chickens.             Once the chickens reached a certain

age, Marshall Durbin bought them back; it hired "catching crews,"

working    under    "live     haul     supervisors,"     to   catch   hundreds   of

chickens per night and haul them in trucks to plants for processing

and eventual slaughter.

     At the time of his termination, Mr. Kelly was a "broiler

serviceman."       A broiler is a certain type of chicken.            At the time

of his termination, Mr. Babb was a live haul supervisor.

                                          II

     We    emphasize     at      the    outset   that    when   the   jury   hears

conflicting versions of events via oral testimony, its finding as

to credibility, made in this case in the form of a plaintiff's

verdict, is final.       We pause to note this point because, despite

the fact that we articulate it with a certain regularity, we

receive with equal regularity appellants’ briefs illustrating an

inability to grasp its importance.

     As is often the case in employment discrimination cases, the

plaintiffs were able to provide little in the way of direct

evidence of prohibited intent.            The direct evidence that did exist


                                           3
in this case came in the form of a comment by Mr. Charles McGee,

head broiler serviceman and Mr. Kelly's immediate supervisor.

McGee commented to another employee shortly after Mr. Kelly's

termination that "older employees were less efficient that the

younger men were." McGee had some role in Mr. Kelly's termination,

although McGee's immediate superior made the ultimate decision.

      The focus of this case, then, was on the plaintiff's attempt

to prove pretext.        We hold that the evidence in this case allowed

the jury to conclude that the reasons Marshall Durbin asserted for

the challenged discharges were pretexts for discrimination.

A.    Mr. Kelly

          The evidence with regard to Mr. Kelly's case allowed the

jury to infer only one legitimate, nondiscriminatory reason for Mr.

Kelly's discharge, namely, that a measure of performance called

“formula costs” showed that Mr. Kelly was an ineffective employee.1

Marshall Durbin's evidence tended to show that the cost per pound

of chicken of Mr. Kelly's growers, the “formula cost,” was among

the   highest     in    Marshall    Durbin's    business.    Marshall   Durbin

calculated formula costs with statistical analyses of data tracking

the amount of chicken produced by each grower against the costs

associated with that grower's operations.                To place the formula

costs     data   in    context,    Marshall    Durbin   introduced   unrebutted

evidence that the regional operation at which both plaintiffs

worked was losing money, that Marshall Durbin had brought in new


      1
          Mr. Kelly proved a prima facie case.            He was fired at age
59.    His replacement was 26 years old.

                                         4
upper level management in attempt to change the operation into a

profitable one, and that this new management fired Mr. Kelly on the

stated grounds of "poor performance" after giving him a single

warning three weeks prior to his discharge that his performance had

to improve in days, not weeks.

     The jury could deem Marshall Durbin's formula costs rationale

a pretext for discrimination for several reasons.     First, the jury

could find that formula costs were not an accurate measurement of

broiler    serviceman's   job   performance.    Mr.   Kelly's   prior

supervisor, Mr. Mullen, testified that different ingredients beyond

the control of a serviceman determined the formula costs.       These

factors included grower pay (which depended on the nature of the

contract between an Employer and a grower), the age of a grower's

physical plant, and the type of equipment it used (especially the

machinery used to control temperature).    This testimony dovetailed

with that of Mr. Kelly, who told the jury that many of his growers

used less advanced equipment than that used by other growers.      We

note that allowing the jury to consider this evidence does not

constitute judicial punishment for an irrational business decision.

While an employer does not violate the ADEA by irrationally firing

a productive worker, evidence establishing the irrationality of an

employer’s business decision may rebut an employer’s business

defense.

     Second, the jury could find that Marshall Durbin itself did

not measure the performance of broiler servicemen according to

formula costs, at least not prior to the litigation.      Mr. Mullen


                                   5
testified that on numerous occasions the owner of Marshall Durbin

told him not "to worry about [formula costs]" because "[t]hat is my

problem.     You just worry about doing a good job.               Don't be

concerned about that."     Moreover, Mr. Kelly stated that, prior to

his termination, his supervisors never discussed formula costs with

him or informed him of their supposed importance.         Even during the

single     warning   occurring   three   weeks   before     Mr.    Kelly's

termination, Mr. Kelly's supervisor did not mention formula costs,

and in fact gave him no indication at all as to the nature of his

deficient performance.

     Third, to the extent that formula costs were designed to be

indicators of aspects of a grower's production that were in Mr.

Kelly's control, testimony at trial showed that Mr. Kelly was a

solid performer. Testimony at the trial, primarily from Mr. Kelly,

contradicted Marshall Durbin's witnesses that dead birds, wet

spots, and poor health practices abounded on Mr. Kelly's farms.

Mr. Kelly testified on the basis of over twenty years experience in

the poultry business, including many in which operations ran at a

profit, that some of these difficulties simply did not exist, those

that did were nothing unusual, and that he reported the existing

problems to his supervisor in writing.      Moreover, Mr. Mullen, Mr.

Kelly's prior supervisor, described Mr. Kelly as an astonishingly

dedicated performer willing to do any task at all, including those

that could not possibly have been in his job description, in order

to make the overall operation succeed. Mr. Kelly worked hours long

enough to cause his wife to complain; he roused himself at odd


                                   6
hours of the morning in order to repair broken down trucks; and he

got the vote out on a bond issue important to Marshall Durbin's

operation.    In his twenty years of employment in the poultry

business, he rarely if ever took a vacation.

     The above evidence tended to rebut Marshall Durbin's formula

costs rationale for Kelly's termination.       But Kelly provided

additional evidence supporting the jury's conclusion that something

was amiss.   The jury heard of the remark of Mr. Kelly's supervisor

discussed above, as well as the flattering evaluation of Mr.

Kelly's prior supervisor.    Chief among the additional evidence,

however, was testimony allowing the jury to conclude that Marshall

Durbin falsified documents in an attempt to build a fake record of

Mr. Kelly's poor performance.   The clerical employee in charge of

filing employment evaluations testified that several hand-written

writings critical of Mr. Kelly found in his personnel file at the

time of litigation were not present at the time of his termination,

that she knew nothing of the existence of these writings at the

time, and that she would have known had they in fact existed then.2

     2
        Marshall Durbin asks us to disregard this evidence
because, it alleges, the plaintiff made no argument to the jury
regarding falsification of documents. St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742 (1993), forecloses this argument. The
lesson of Hicks was that a finder of fact may conclude that a
nondiscriminatory reason other than that given at the time of the
challenged employment decision or during argument to the jury in
fact motivated an employer. In other words, a jury may conclude
whatever the evidence allows it to conclude, in spite of the
arguments of counsel. We believe that the Hicks court did not
intend to limit the application of this principle to cases in
which it would benefit employment discrimination defendants.
     We note also that defense counsel's statements to the trial
judge at sidebar illustrated that he understood at the time what
the clerical worker's testimony tended to prove.

                                 7
Moreover, Mr. Kelly's former supervisor testified that Mr. Kelly's

record should have contained several positive evaluations of his

performance written during the several years he served Marshall

Durbin as a broiler serviceman. Some of these records were missing

from Marshall Durbin's files.     Such evidence, if credited, allowed

the jury to disregard Marshall Durbin's records.             But it also

provided evidence of Marshal Durbin’s "mendacity" and allowed an

inference   that   the   defendant’s   falsification   was   designed   to

conceal prohibited intent.

     Under such circumstances, we believe that a jury could infer

that Marshall Durbin's formula costs rationale was a pretext for

discrimination on the basis of Mr. Kelly's age.

B.   Mr. Thomas Babb

     Regarding the portion of the case relating to Mr. Babb, the

evidence required the jury to decide two disputed issues of fact:

first, whether Mr. Babb quit or was discharged; and second, whether

Marshall Durbin fired Mr. Babb because of a reduction in force.         To

the extent that Mr. Babb’s discharge took place as a result of a

reduction in force, Marshall Durbin sought to justify the choice to

terminate Mr. Babb, as opposed to either of two other live haul

supervisors, on the grounds that Mr. Babb could not complete the

required paperwork and that his crew-members lived the farthest

away from the complex.

     Regarding the first issue, the evidence was sufficient to

allow the jury to conclude that Marshall Durbin fired Mr. Babb.

The relevant discussion between Mr. Babb ended with Mr. Babb


                                   8
stating, “James, don’t lie to me.              If you are firing me, tell me

I’m fired,” and the supervisor responding, “That’s the way it is.”

Moreover, Mr. Babb’s wife, upon a return to Marshall Durbin’s

office    some     three    weeks   after     this   conversation,    asked       the

supervisor why Mr. Babb had been fired.               The supervisor responded

that he could not tell her the reason, not that he had never

discharged Mr. Babb.         No other conversations regarding Mr. Babb’s

continued employment took place.              Under such circumstances, the

jury could conclude that Marshall Durbin fired Mr. Babb.

     The resolution of the second issue, whether Mr. Babb was fired

as a result of a reduction in force, is more complicated and in

some part dependant on our conclusion that Mr. Babb was in fact

fired.     In order to aid in our understanding of the conflicting

testimony in this case, we summarize the relevant testimony in some

detail.

     The    jury    heard    Marshall    Durbin’s      version   of   the    events

surrounding Mr. Babb’s termination primarily via the testimony of

James    McNally,    who    at   the   relevant      time   supervised   Marshall

Durbin’s live haul supervisors.              According to McNally, Marshall

Durbin lost a buyer shortly before Mr. Babb and Marshall Durbin

parted ways. At that time, Marshall Durbin operated three catching

crews, one supervised by McNally himself, one by Babb, and one by

a Mr. Sherrill Moore.         Because of this loss, and as part of a more

general and ongoing effort to make the business more efficient,

Marshall    Durbin    restructured      its    operations.       Under      the   new

structure, one supervisor would oversee all catching crews; McNally


                                         9
himself supervised during the day, and Moore took the night shift.

The restructuring also reduced the number of catching crews from

three to two.    But, according to McNally and the other Marshall

Durbin witnesses, no one was fired during this restructuring.    The

crew members that had operated under Mr. Babb’s now dissolved crew

remained on the crew list,3 and McNally also offered Mr. Babb other

jobs, including one as a dispatcher.    Mr. Babb took a dim view of

this offer and stormed out of the office.

     Mr. Babb, however, testified that he received no offer of a

different position from McNally.     Rather, McNally fired him with

little or no warning after the short conversation described above.

     We must, of course, accept Mr. Babb’s testimony that McNally

never offered him a second job and that the termination was in fact

rather abrupt.   The more difficult question is whether the jury

could also disregard the rest of McNally’s testimony regarding the

reorganization of the supervisor positions.    In essence, Marshall

Durbin asks us to find that no rational jury could refuse to

believe an argument that was not its first defense at trial,

namely, that a RIF, not a reorganization, took place.    Under this

story, Marshall Durbin’s reorganization resulted in the elimination

of one live haul supervisor position, and as a result, Marshall

Durbin fired Mr. Babb.     By casting this suit as a RIF case,


     3
        Although no testimony at trial addressed directly the
nature of the relationship between Marshall Durbin and the
catching crews, it appears that Marshall Durbin kept a list of
potential catching crew members, called them when there was
catching to be done, and paid them according to how often they
worked.

                                10
Marshall Durbin seeks to take advantage cases it claims require a

plaintiff discharged as a result of a RIF to prove that she was

clearly better qualified than those employees that remained.      See,

e.g., Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.

1993); Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1993).

     The   lynchpin   of   this   argument   is    Marshall   Durbin’s

interpretation of Bodenheimer and Walther.           We find Marshall

Durbin’s reading of these case rather creative.       Nothing in these

cases requires every employment discrimination plaintiff terminated

as a result of a RIF to prove that she was clearly better qualified

than younger employees not fired in the RIF.      Walther upheld a jury

verdict for an ADEA plaintiff on the grounds that evidence of his

superior qualifications, together the employer’s concessions that

it did not release less qualified and more youthful employees

previously occupying comparable positions, rebutted the employer’s

RIF defense.   Our observation that “the issue is not whether [the

plaintiff] or the retained employees were better qualified,” 952

F.2d at 123, merely pointed out that an employer firing an ADEA

plaintiff because of an erroneous belief that the plaintiff’s

qualifications were inferior has made a bad business decision, not

violated the ADEA.    Similarly, in Bodenheimer, we held only that

the plaintiff’s failure to present any evidence comparing his own

qualifications to that of a retained employee allowed the district

court to enter summary judgment for the defendant in the specific

context of that case.      Nothing in that case established the

inflexible rule that Marshall Durbin espouses in this appeal.


                                  11
       Most importantly, however, after our decision in Rhodes, we

must maintain our focus only upon the ultimate issue:                  whether the

evidence was sufficient to allow the jury to find that Marshall

Durbin discharged Mr. Babb because of his age.                 In such a context,

continuing to think in terms of the McDonnell Douglas-Burdine

minuet after the defendant has danced the second step clouds,

rather than clarifies, the analysis.

       With       these   principles   firmly   in     mind,   we   find   that   the

evidence was sufficient to allow the jury to infer that age

motivated Mr. Babb’s discharge. Viewing the case in the light most

favorable to Mr. Babb, the evidence confronting the jury was as

follows.

       First, Marshall Durbin retained Sherrill Moore, who was 39,

and fired Mr. Babb, who was in his late fifties, in spite of the

fact       that    Marshall     Durbin’s   witnesses    testified    that   no    RIF

occurred.

       Second, Marshall Durbin’s stated reasons for this decision

were suspiciously attenuated. Its first justification was a single

comment, a stray remark that was never documented,4 that Mr. Babb

supposedly made to his superior to the effect that Mr. Babb could

not complete new paperwork requirements.                 In contrast, both Mr.

Babb       and    his   prior   superior   testified    that   Mr.   Babb   had    no

difficulties with paperwork at all.              In addition, no one disputed


       4
        We note that many of the reasons Marshall Durbin provides
to minimize the importance of the McGee stray remark on the
inefficiency of older workers, which we have largely accepted in
this opinion, apply equally to Mr. Babb’s alleged remark.

                                           12
that   Mr.   Babb’s     written     evaluations,      while   identifying    other

weaknesses in his work skills, never criticized his paperwork, and

no one testified that Mr. Babb received oral criticism of his

paperwork skills.       Marshall Durbin’s second justification was that

Mr. Babb’s catching crews were located at a greater distance from

the complex.         But this justification conflicted with the way

catching     crews     operated.         Testimony    from    several    witnesses

established     that     catching      crew    members    worked   for    whatever

supervisor happened to be available at the time, and that turnover

and exchange among groups was rapid.             To classify certain catching

crew members as belong to Mr. Babb was misleading.

       Third, in articulating its justifications for terminating Mr.

Babb, Marshall Durbin ignored factors that most rational business

entities would consider, such as Mr. Babb’s lengthy experience in

several aspects of the poultry business and his equally lengthy

term of service to Marshall Durbin and its predecessor company.

Again, allowing        the   jury   to    consider     this   evidence    does   not

constitute judicial punishment for an irrational business decision.

It merely suggests that Marshall Durbin’s stated justifications

were so thin as to give rise to an inference that post hoc coverup

was in place.

       Fourth, further evidence allowed the jury to infer that a

coverup had taken place at the time of Mr. Babb’s termination.

When Mr.     Babb    returned     to   Marshall      Durbin   shortly    after   his

discharge and asked for his personnel file, the documents he was

given were decidedly incomplete.               When Mr. Babb’s wife asked the


                                          13
supervisor why the termination had taken place, the supervisor said

that he could not tell her.   In short, the jury could conclude from

this evidence that Marshall Durbin was hiding something, and the

remainder of the evidence allowed the jury to find that the

“something” was age discrimination.    Under such circumstances, we

hold that a rational jury could find that Marshall Durbin’s RIF

defense, a defense its own witnesses undermined by stating that no

RIF ever occurred, was a pretext for age discrimination.   For these

reasons, we AFFIRM.

     Regarding the request of attorneys for appellees for fees in

defending the judgment below on appeal, we REMAND to the district

court for factual findings and conclusions of law on this issue.

     AFFIRMED on merits, attorneys fees issue REMANDED.




                                 14
