                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                    _____________________________

                             No. 92-1770
                    _____________________________

     JIMMY G. MOORE,

                            Plaintiff-Appellant,

                       versus

     ELI LILLY & CO.,

                           Defendant-Appellee.
          _________________________________________________

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

                           (April 30, 1993)

Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

     In this appeal of an age discrimination case,1 Plaintiff-

Appellant Jimmy G. Moore asserts that the district court erred in

granting summary judgment in favor of Defendant-Appellee Eli Lilly

& Co. (Lilly).     Moore argues that the district court improperly

imposed a "pretext burden" on him, and that there were genuine

issues of material facts concerning whether Lilly's proffered

reason for dismissing him was pretextual.        Our plenary review of

the summary judgment evidence places us in agreement with the

district court's grant of summary judgment in favor of Lilly, so we

affirm.

     1
         See 29 U.S.C. § 621 et seq.
                                          I

                           FACTS AND PROCEDURAL HISTORY

       Moore worked for Lilly for over thirty years.                 None disputes

that       during   his    time   with   Lilly,    Moore    had   always   been   a

satisfactory salesman.            His employment was terminated by Lilly in

October 1990, however, for "falsifying sample records."                    At the

time of his discharge, Moore was fifty-nine years old.

       Lilly, in compliance with the Prescription Drug Marketing Act

of 1987,2 operated a system to track the drug samples distributed

to   physicians       by    salespersons.         Under    Lilly's    system,   all

salespersons were required to send "call cards" to Lilly each day,

reporting the day's distributions of samples to doctors.                        Each

salesperson's daily reports were checked against an inventory of

his or her samples conducted at the end of each quarter.                   If the

results of the inventory revealed a discrepancy with totals from

the salesperson's call cards, he or she was considered to be "out

of balance," and the disparity would have to be reconciled.                       A

salesperson's inability to reconcile a discrepancy could result in

his or her 1) being required to submit daily logs, or 2) being

terminated.

       Moore was out of balance for the second quarter of 1990.

After discussing the discrepancy with Kathy Hagerman, who worked in

Lilly's "sample accountability department," Moore sent a letter to

that department requesting that his records be altered to reflect

a different distribution of samples.               The purpose of this letter

       2
           See 21 U.S.C. § 353.

                                          2
was to correct the discrepancy.      It was later discovered that the

modified record of samples distribution, as reflected in the letter

Moore sent to the sample accountability department, could not have

been correct; Moore apparently never had on hand a sufficient

supply of samples to make possible the distributions that his

letter asserted he had made.3       Hagerman informed Moore that the

distribution set forth in the letter was not possible in view of

the stock he had possessed during the relevant time.       In response,

Moore requested that Hagerman return his letter, but she refused.

Lilly terminated Moore's employment, believing that this incident

constituted a falsification of company records.

     On October, 12, 1990, Moore met with his supervisor, Charles

Yelverton.    He informed Moore that his termination was based on

falsification of the sample records.       After Moore wrote to Lilly's

Board    chairman   complaining   about   the   termination,   two   Lilly

executives went to Dallas and met with Moore.4       As a result of that

meeting, Moore's termination date was modified to reflect an

effective termination date of December 31, 1990.

     Moore filed an age discrimination charge against Lilly with

the EEOC.    Before any resolution was made of that charge, though,

     3
       The discrepancy involved samples of two types of
medication: "Axid 150" and "Axid 300." In his letter to the
sample accountability department, Moore stated that, although his
original reports had reflected that he had distributed Axid 150,
he had actually distributed Axid 300. Hagerman later discovered
that during the time relevant to the letter, Moore did not have a
sufficient quantity of Axid 300 to make the distribution, which
was set forth in the letter, possible.
     4
       These executives were Thomas Coyne, Director of Personnel,
and Dick Wojcik, a Vice-President.

                                    3
Moore brought the instant action in the district court.           In its

opinion, the district court assumed that Moore had made out a prima

facie case. In response, Lilly asserted a non-discriminatory basis

for        the   termination))i.e.,   the    falsification   of   sample

records))which the court found to be legitimate. Subsequently, the

district court granted summary judgment in favor of Lilly, finding

that Moore had failed to present any evidence to demonstrate that

the legitimate, non-discriminatory reason articulated by Lilly was

pretextual.       Moore timely appealed.



                                      II

                                  ANALYSIS

A.    Standard of Review

       It is well established that, on appeal from a district court's

grant of summary judgment, we review the record "under the same

standards which guided the district court."5           The standards we

apply are set out in the Supreme Court trilogy of Anderson v.

Liberty Lobby, Inc.,6 Celotex Corp. v. Catrett,7 and Matsushita

Electric Industrial Co. v. Zenith Radio Corp.8       Summary judgment is

proper when no issue of material fact exists and the moving party




       5
       Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th
Cir. 1988).
       6
           477 U.S. 242 (1986).
       7
           477 U.S. 317 (1986).
       8
           475 U.S. 574 (1986).

                                      4
is entitled to judgment as a matter of law.9              In determining

whether summary judgment was proper, all fact questions are viewed

in the light most favorable to the non-movant.          Questions of law

are reviewed, as they are in other contexts, de novo.10



B.   Shifting Burdens in ADEA Claims

      The litany of cases in this court establishing the alternating

burdens to be carried by the parties to an age discrimination case,

like the litany of those creating our standard of review for grants

of summary judgment, is a long and well established one.          As there

is no direct evidence of age discrimination in the instant case, "a

three step analysis applies."11       In the first step, the plaintiff

must prove a prima facie case by demonstrating that he or she was

(1) discharged; (2) qualified for the position; (3) within the

protected age class))over 40))at the time of discharge; and (4)

replaced by someone outside of the protected age class))under 40))or

was otherwise discharged because of his or her age.12

      By proving a prima facie case, the employee establishes a

rebuttable presumption that the employer unlawfully discriminated

against      the   employee.   The    employer   may   then   negate   this

presumption by articulating a legitimate, non-discriminatory reason


      9
           FED. R. CIV. P. 56(c); see Celotex, 477 U.S. at 323-25.
      10
           Walker, 853 F.2d at 358.
      11
           Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir. 1990).
      12
       Bienkowski v. American Airlines, Inc., 851 F.2d 1503,
1504-05 (5th Cir. 1988).

                                      5
for its action.     If the employer articulates such a reason, and on

summary judgment produces sufficient evidence to support the reason

thus articulated, "the burden reverts to the plaintiff to prove

that the employer's reason[] [is] pretextual."13 "The plaintiff can

show pretext by introducing evidence which proves that the reason

stated by the employer, 'though facially adequate, was untrue as a

matter of fact or was, although true, a mere cover or pretext' for

illegal discrimination."14     Stated another way, the plaintiff may

prove pretext by "either showing that a discriminatory reason

motivated the defendant or by showing that the proffered reason is

unworthy of credence."15

     To overcome a motion for summary judgment, of course, the

plaintiff need only produce evidence to create a genuine issue of

material fact concerning pretext.16        It is clear, however, that the

plaintiff's summary judgment proof must consist of more than "a

mere refutation of the employer's legitimate nondiscriminatory

reason."17    To demonstrate pretext, the plaintiff must do more than


     13
       Normand v. Research Inst. of Am., Inc., 927 F.2d 857, 859
(5th Cir. 1991) (citing Thornbrough v. Columbus & Greenville R.R.
Co., 760 F.2d 633, 646 (5th Cir. 1985), which cited Texas Dep't
of Community Affairs v. Burdine, 450 U.S. at 248, 253-55 (1981)).
     14
       Id. (quoting Elliot v. Group Medical & Surgical Servs.,
714 F.2d 556, 566 (5th Cir. 1983), cert. denied, 467 U.S. 1215
(1984)).
     15
          Hanchey, 925 F.2d at 98.
     16
          See FED. R. CIV. P. 52(a).
     17
       Bienkowski, 851 F.2d at 1508 n.6 (rejecting the Third
Circuit's standard as discussed in Chippollini v. Spencer Gifts,
814 F.2d 893 (3d Cir.1987)).

                                       6
"cast doubt on whether [the employer] had just cause for its

decision"; he or she must "show that a reasonable factfinder could

conclude      that    [the   employer's]     reason[]   [is]    unworthy    of

credence."18     Specifically, "[t]here must be some proof that age

motivated     the    employer's   action,   otherwise   the    law   has   been

converted from one preventing discrimination because of age to one

ensuring dismissals only for just cause to all people over 40."19



C.   Moore's Claim of Age Discrimination

      The district court assumed that Moore had established a prima

facie case of age discrimination.           As Lilly does not contest this

point on appeal, and all of the elements are clearly met, we make

the same assumption.

      Lilly asserted as its legitimate, non-discriminatory reason

for Moore's termination that he was discharged because he falsified

the records discussed above.        In support of this contention, Lilly

presented considerable deposition testimony by Moore and others.

It is clear to us, as it was to the district court, that the

cognizant executives of Lilly could have reasonably believed that

Moore requested the alteration of his sample distribution records

without verifying what he had distributed to the doctors.             When he

was informed of the impossibility of the distribution under the

alteration that he had requested in his letter, he immediately


      18
           Hanchey, 925 F.2d at 99.
      19
       Bienkowski, 851 F.2d at 1508 n.6 (citing White v.
Vathally, 732 F.2d 1037 (1st Cir. 1984)).

                                      7
asked that the letter be returned to him.              From these actions Lilly

could have reasonably inferred that Moore had something to hide,

namely, his falsification of the drug sample records.                    Such a

reasonable    belief    by   Lilly   is       undeniably   a   legitimate,   non-

discriminatory reason for its termination of Moore's employment.

The fact that the employers' reasonable belief eventually proves to

have been incorrect))if, for example, Moore were eventually to be

vindicated from the charges of falsifying records))would not change

the conclusion that the firing had been non-discriminatory.                    To

survive summary judgment, therefore, Moore had the burden of

producing some evidence that Lilly's proffered explanation is mere

pretext.    In the language of Hanchey, Moore had to "carr[y] [his]

burden of showing a genuine issue of fact regarding the pretext

issue."20 Our review of the summary judgment evidence satisfies us

that Moore simply failed to meet this burden.

     Moore misapprehends the burden shifting process. At times, he

even appears to argue that he has no pretext burden at all.                    He

complains that the trial court improperly ruled that his "prima

facie proof was not itself sufficient to raise any inference

whatsoever    that     Moore's    age     was    the   motive."     Moore    thus

demonstrates his belief that his prima facie case is sufficient to

meet his second evidentiary burden of demonstrating a genuine issue

of material fact regarding pretext in order to defeat Lilly's

summary judgment motion.         This belief in turn demonstrates Moore's

failure to grasp fundamental principles of this area of law.

     20
          Hanchey, 925 F.2d at 98.

                                          8
     Moore cites, inter alia, an Eighth Circuit case, Hicks v. St.

Mary's Honor Center,21 for the proposition that "after 'pretext' has

been established," the prima facie case can have an impact on the

case in favor of the plaintiff.          We agree with our Eighth Ciruit

colleagues that if a plaintiff is able to demonstrate that the

employer's facially legitimate, non-discriminatory reason for its

action is pretext, the inference created by the prima facie case

could well be the basis for a favorable verdict for the plaintiff.

The plaintiff need not necessarily respond to defendant's non-

discriminatory reason if (but only if) plaintiff anticipatorily

demonstrated in his or her prima facie case that the reason was

pretext.22   In Hicks, for example, the plaintiff had "proved all of

defendants' proffered reasons for adverse employment actions to be

pretextual."      Following the plaintiffs' discrediting of all of the

defendants's proffered reasons for their actions,

     defendants were in a position of having offered no
     legitmate reasons for their actions. In other words,
     defendants were in no better position than if they had
     remained silent, offering no rebuttal to an established
     inference that they had unlawfully discriminated against
     plaintiff on [an illegal basis].23

        Moore's problem, however, is his total failure to produce any

evidence of pretext, either in connection with establishing his

prima     facie   case   or   subsequently    in   response   to   Lilly's

demonstration of a non-discriminatory reason for its action.            He


     21
          970 F.2d 487 (8th Cir. 1992).
     22
          See id. at 492.
     23
          Id. at 492.

                                     9
protests that the district court imposed on him a new "pretext

burden" which the court plucked from the wording of our Hanchey

opinion. Not so.   The district court was merely requiring Moore to

do what all of the relevant case law demands that he do:   produce

some evidence of pretext.24

     24
       In his brief to this court, Moore argues that "footnote 6
[of the Bienkowski opinion] cannot be read to establish a new
'pretext burden.'" Moore goes on to state that such a burden
cannot "be harmonized with Burdine, other Fifth Circuit cases,
and the views of other [c]ircuits," and he implies that such a
burden would make victory impossible for an ADEA plaintiff.
     In the hope of forestalling the unnecessary expenditure of
plaintiffs' funds and judicial resources through the filing of
flawed age discrimination cases, we have reviewed exhaustively
this circuit's published opinions in ADEA cases that are the
progeny (since 1988) of Green, Burdine, Thornbrough, or
Bienkowski. Our review shows that when an ADEA plaintiff can
produce valid evidence of pretext after the employer has
proffered a legitimate, non-discriminatory explanation for its
action, the plaintiff can succeed. See Ramirez v. Allright
Parking El Paso, Inc., 970 F.2d 1372, 1377 (5th Cir. 1992); Lloyd
v. Georgia Gulf Corp., 961 F.2d 1190, 1194,95 (5th Cir. 1992);
Walther v. Lone Star Gas Co., 952 F.2d 119, 122-24 (5th Cir.
1992); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1146-47 (5th
Cir. 1991); Normand Research Inst. of Am., Inc., 927 F.2d 857,
862-64 (5th Cir. 1991); Young v. City of Houston, 906 F.2d 177,
182 (5th Cir. 1990); Deloach v. Delchamps, Inc., 897 F.2d 815,
818-19 (5th Cir. 1990); Burns v. Texas City Refining, Inc., 890
F.2d 747, 749-51 (5th Cir. 1989); Hansard v. Pepsi Cola Metro
Bottling Co., 865 F.2d 1461, 1465-66 (5th Cir 1989); Uffelman v.
Lone Star Steel Co., 863 F.2d 404, 407-08 (5th Cir. 1989). In a
smaller but significant number of cases, to which the instant
case may be added, ADEA plaintiffs who fail to meet their burden
to produce some valid evidence of pretext are unsuccessful. See
Waggoner v. City of Garland, __ F.2d __, 1993 WL 81530 (5th
Cir.)(affirming the grant of summary judgment in favor of
defendant); Guthrie v. Tifco Indus., 941 F.2d 374, 378 (5th Cir.
1991)(same); Amburgey v. Corhart Refractories Corp., 936 F.2d
805, 813-14 (5th Cir. 1991)(same); Hanchey v. Energas Co., 925
F.2d 96, 98-99 (5th Cir. 1990)(same); Little v. Republic Refining
Co., 924 F.2d 93, 96-98 (5th Cir. 1991)(affirming grant of JNOV
in favor of defendant); Molnar v. Ebasco Constructors, Inc., 986
F.2d 115, 1993 WL 59042, *3 (5th Cir.)(reversing jury verdict
that had been rendered in favor of plaintiff); Laurence v.
Chevron, U.S.A., Inc., 885 F.2d 280, 284-85 (5th Cir.
1989)(same). A fair reading of the latter set of cases reveals

                                10
     Moore attempts, in two assertions, to produce satisfactory

evidence that Lilly's reason for his termination was pretext:

(1) that a series of comments made by his supervisor, Yelverton,

demonstrated      discriminatory     intent    in    connection     with   Moore's

termination, and (2) that certain irregularities in the procedures

followed     by   Lilly    in    connection      with     Moore's    termination

demonstrate discriminatory intent.            As we shall explain, however,

none of Moore's evidence establishes a sufficient nexus between his

age and his termination to create a genuine issue of material fact

concerning pretext.       It cannot therefore defeat Lilly's motion for

summary judgment.



     1.    Yelverton's Comments

     Moore asserts that a number of comments made by his supervisor

demonstrates that he had a bias against older workers in general,

and Moore in particular.         Phrased in the vernacular of our prior

opinions, Moore is asserting that even if Lilly's stated reason is

facially    valid,   it   is    "a   mere    cover   or   pretext   for    illegal

discrimination"))i.e., that "a discriminatory reason motivated

[Lilly]."25 Moore submits that his termination was a product of the



that the most prevalent flaw in the losing plaintiffs' evidence
is the absence of proof of nexus between the firing (or failure
to promote) and the allegedly discriminatory acts of the
employer. In our survey, we found only two ADEA cases in which
the plaintiff failed to produce evidence sufficient to make out a
prima facie case. See Fields v. J.C. Penny Co., 968 F.2d 533,
536 (5th Cir. 1992); Crum v. American Airlines, Inc., 946 F.2d
423, 428-29 (5th Cir. 1991).
     25
          See supra notes 14-15 and accompanying text.

                                        11
discriminatory intent evidenced by Yelverton's remarks and was not

a product of the drug record falsification reason given by Lilly.

Not only do the statements that Moore attributes to Yelverton fail

directly to refute Lilly's explanation of Moore's termination as

pretextual, they fail to demonstrate discriminatory intent vel non.

     Moore asserts that when Yelverton learned that he was going to

become the supervisor of the division in which Moore worked,

Yelverton asked the outgoing supervisor a series of questions

concerning the ages of the current employees and whether any of the

older employees planned to retire soon.26 These questions, however,

cannot be said to represent, as Moore asserts, a discriminatory

intent by Yelverton.   Without more, they merely demonstrate a new

supervisor's reasonable inquiries about the ages of the members of

his work force and their known plans for the future))facts on which

to guage the anticipated longevity of his crew.27

     The other set of statements that Moore proffers as proof of

discriminatory intent concerning his termination are two more


     26
       The former supervisor stated in a deposition that
Yelverton specifically asked about Moore's retirement plans when
he learned of Moore's age.
     27
       In Burns v. Texas City Refining, 890 F.2d at 750-51, we
found that the plaintiff had demonstrated pretext, and one part
of his proffered evidence consisted of a supervisor's inquiry
concerning plaintiff's age. In Burns, however, the inquiry,
which itself did not demonstrate discriminatory animus, was
accompanied by the fact that the supervisor knew of savings in
pension payments that could be realized if older workers were
dismissed, and that specific efforts had been made to induce
Burns to leave before his termination. See id. In the instant
case, however, there is nothing more than an inquiry by a new
supervisor concerning the age of his workforce. We cannot infer
discriminatory animus from that inquiry.

                                12
Yelverton remarks that simply do not have any negative implications

about Moore or his age.     The first was a comment made by Yelverton

when the he and Moore were on a sales call together.       Yelverton

stated that if he were in Moore's position he would be out seeing

the world.      Such musings about eventual retirement simply do not

evidence discriminatory intent. Neither do tasteless but innocuous

"pottie humor" comments, such as one made by Yelverton to Moore.28

     Moore adds that he was told by other Lilly supervisors not to

recommend people over thirty-five years of age for new sales

positions.      The implication of that advice))that Lilly wanted to

make training investments in employees of an age that would predict

long range employment))is not indicative of age bias and certainly

did not affect Moore, who long before had been hired as a salesman.

Moore also stated in a deposition that he was the oldest man in the

district office.     But again, the fact that the oldest employee in

the district was terminated simply does not demonstrate that the

facially age-neutral reason Lilly offered for that termination was

pretextual.29

     2.   The Circumstances of Moore's Termination

     Moore next claims that "the pretextual nature of Lilly's


     28
       Specifically, when Yelverton and Moore were in a restroom
at the same time, Yelverton stated that Moore "had a strong
stream for an old man." Although this comment demonstrates that
Yelverton might have been less than genteel at times, it fails to
demonstrate discriminatory animus.
     29
       Moore also insists that "a substantial raise was in the
works [for him] and . . . that this led to Yelverton's sense of
urgency in terminating him." Assuming that this is true, we fail
to see any relation whatsoever to Moore's age.

                                   13
alleged    reason       for    termination             is   obvious"      from     the    facts

surrounding his termination.                   With this argument, Moore continues

his attempt to create a genuine issue of material fact regarding

Lilly's stated reason, insisting that it is "a mere cover or

pretext for illegal discrimination" or that "a discriminatory

reason motivated [Lilly]."30

     Moore    argues        that    six        facts    surrounding       his     termination

(noting that "the list could easily be continued") demonstrate

Lilly's discriminatory intent.                  These facts, which for purposes of

this review we assume to be true, are: (1) that Lilly has told

inconsistent stories concerning the termination; (2) that Moore was

terminated for "falsifying records" before Yelverton knew the

elements    of    the    offense;         (3)     that      Yelverton      varied     Lilly's

discharge procedures and disobeyed orders from his supervisors in

deciding to terminate Moore; (4) that "Moore was terminated for

attempting       to   correct       a    situation          caused   by    someone       else's

mistake"; (5) that the sample accountability department only placed

him on the daily log (a lesser penalty) but Yelverton decided to

terminate    him;     and     (6)       that    Yelverton      "shot      first    and    asked

questions later"))making his inquiry only after he terminated

Moore. Concerning these six assertions, the district court stated:

"While these conflicting accounts indicate a factual dispute as to

exactly how Moore was terminated, their existence does not provide

direct (or even indirect) proof that he was fired because of age."

We agree.

     30
          See supra notes 14-15, 23 and accompanying text.

                                                14
      Proof that an employer did not follow correct or standard

procedures in the termination or demotion of an employee may well

serve as the basis for a wrongful discharge action under state law.

As we have stated, however, the ADEA was not created to redress

wrongful discharge simply because the terminated worker is was over

the age of forty.31     A discharge may well be unfair or even unlawful

yet not be evidence of age bias under the ADEA.            To make out an

ADEA claim, the plaintiff must establish the existence of discrete

facts that show some nexus between the employment actions taken by

the   employer    and   the   employee's   age.    Here,    there   is   no

demonstrated connection other than Moore's bald assertion that one

exists.     That simply will not suffice.



                                    III

                                CONCLUSION

      Moore, like so many other ADEA claimants before him, has

failed to produce summary judgment evidence capable of showing the

existence of a genuine issue of material fact on the pretext issue.

Agreeing with the district court's well-reasoned opinion that

explain the court's grant of Lilly's motion for summary judgment,

we

AFFIRM.




      31
           See Bienkowski, 851 F.2d at 1508 n.6.

                                    15
