                                 United States Court of Appeals,

                                           Fifth Circuit.

                                          No. 93-3802.

                          Freamont A. LaPIERRE, Plaintiff-Appellant,

                         Randy J. Ungar & Associates, Inc., Intervenor,

                                                v.

                         BENSON NISSAN, INC., Defendant-Appellee.

                                          June 27, 1996.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

       EMILIO M. GARZA, Circuit Judge:

       Plaintiff Freamont LaPierre appeals the district court's order granting Defendant Benson

Nissan's motion for summary judgment. We reverse and remand.

                                                 I

       LaPierre, a black male, was a lo ng-time employee of the Service Department of Benson

Nissan, an automobile dealership. Starting as a mechanic, LaPierre was promoted to the position of

Quality Control Shop Foreman and then to the newly-created Service Manager position. Both

positions placed him second-in-command in the Service Department, supervised only by the Parts and

Service Director. On two occasions while LaPierre was second-in-command in the Service

Department, white males with less experience in the automobile dealership service industry were

promoted to the Parts and Service Director position.

       Nissan Motor Company routinely conducts audits of the warranty repair procedures of the

Service Departments of its affiliated dealerships. During one such audit of Benson Nissan's Service

Department, Nissan Motor Company discovered errors, primarily in bookkeeping and paperwork,

that resulted in an $80,000 charge to Benson Nissan.1 Soon thereafter, Benson Nissan reorganized


   1
   The parties dispute whether LaPierre's responsibility as Service Manager extended to
paperwork filled out in connection with warranty repairs.
its Service Department. The acting Parts and Service Director was forced to resign. The Service

Manager position was eliminated, and LaPierre was demoted to mechanic. A white male who had

previously worked under LaPierre's supervision was promoted to Director. LaPierre filed suit against

Benson Nissan, alleging that Benson Nissan discriminated against him by failing to promote him and

by demoting him on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2(a)(1) ("Title VII"), and in violation of the Civil Rights Act of 1991, 42 U.S.C. §

1981 ("§ 1981"). Benson Nissan filed a motion for summary judgment, which the district court

granted. LaPierre filed a motion for reconsideration, accompanied by the newly-acquired deposition

testimony of Robert Speights, an auditor at Nissan Motor Company. The district court considered

Speights's deposition, but nonetheless denied LaPierre's motion for reconsideration. LaPierre filed

a timely notice of appeal.

                                                  II

        LaPierre argues that the district court erred by granting Benson Nissan's motion for summary

judgment. We review a district court's grant of summary judgment de novo. Armstrong v. City of

Dallas, 997 F.2d 62, 65 (5th Cir.1993). Summary judgment is appropriate in cases in which there

is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). In an employment discrimination case, we focus on whether a genuine issue

exists as to whether the defendant intentionally discriminated against the plaintiff. Armstrong, 997

F.2d at 65-66.

                                                  A

        The evidentiary framework for Title VII claims2 was established by the Supreme Court in

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


   2
    Title VII prohibits employers from discriminating against employees on the basis of race,
color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Section 1981 provides that all
persons in the United States shall have the same contractual rights as white citizens. 42 U.S.C. §
1981(a). Claims of racial discrimination brought under § 1981 are governed by the same
evidentiary framework applicable to claims of employment discrimination brought under Title VII.
Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d
132 (1989). Therefore, the following analysis applies to both LaPierre's Title VII and § 1981
claims.
VII plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance

of the evidence. Id. at 802, 93 S.Ct. at 1824. A plaintiff may prove a prima facie case of

discrimination by showing (1) that he is a member of a protected class, (2) that he sought and was

qualified for an available employment position, (3) that he was rejected for that position, and (4) that

the employer continued to seek applicants with the plaintiff's qualifications. Id.3 Once established,

the plaint iff's prima facie case raises an inference of intentional discrimination. Id. The burden of

production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the

challenged employment action. Id. If the defendant comes forward with a reason which, if believed,

would support a finding that the challenged action was nondiscriminatory, the inference raised by the

plaintiff's prima facie case drops from the case. Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 255 & n. 10, 101 S.Ct. 1089, 1094-95 & n. 10, 67 L.Ed.2d 207 (1981). The focus then

shifts to the ultimate question of whether the defendant intentionally discriminated against the

plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d

407 (1993).

        LaPierre alleges two separate grounds for his claims of racial discrimination. First, he alleges

that Benson Nissan unlawfully discriminated against him by failing to promote him to the position of

Parts and Service Director.4 Second, he alleges that Benson Nissan unlawfully discriminated against

him by demoting him to the position of mechanic. We must first consider whether LaPierre has

established a prima facie case of unlawful discrimination with regard to each of these grounds.

LaPierre is a black male. The summary judgment evidence shows that LaPierre approached the

management of Benson Nissan on multiple occasions to request that he be considered for the position

   3
     The elements of a plaintiff's prima facie case necessarily vary according to the facts of the case
and the nature of the claim. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13;
see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407
(1993) (finding the third element of Title VII plaintiff's prima facie case for wrongful demotion
satisfied by proof that "he was demoted from that position and ultimately discharged").
   4
    Although LaPierre was passed over for the Director of Parts and Service position on two
occasions prior to the Nissan Motor Company audit, the failure-to-promote claim asserted in
LaPierre's complaint challenges only Benson Nissan's decision not to promote him when the
acting Director of Parts and Service was forced to resign following the Nissan Motor Company
audit.
of Parts and Service Director. LaPierre had twenty years' experience in the automobile dealership

service industry and had held every position in Benson Nissan's Service Department except that of

Director. Current members of Benson Nissan's management testified that LaPierre was qualified for

the Director position and that he was as qualified as the persons selected for that position. Lastly,

Tommy Discon, a white male, was chosen for the position of Parts and Service Director. Therefore,

for purposes of summary judgment, LaPierre has established a prima facie case with regard to his

claim that Benson Nissan unlawfully discriminated against him by failing to promote him.

        Turning to the elements of LaPierre's prima facie case for wrongful demotion, the summary

judgment evidence shows that LaPierre was originally employed by Benson Nissan as a mechanic and

was promoted first to the position of Quality Control Shop Foreman and then to Service Manager.

Prior to his demotion, LaPierre had never been the subject of disciplinary action. Following

reorganization of the Service Department, LaPierre was demoted to mechanic, resulting in a

substantial loss of responsibility and compensation. When the position of Service Manager was

eliminated, LaPierre's responsibilities as second-in-command were assumed by the Quality Control

Shop Foreman, Mark Olivier, a white male. Therefore, for purposes of summary judgment, LaPierre

has established a prima facie case with regard to his claim that Benson Nissan unlawfully

discriminated against him by demoting him to the position of mechanic.

         The burden of production thus shifts to Benson Nissan to articulate a legitimate,

nondiscriminatory reason for failing to promote LaPierre to Director of Sales and Service and for

demoting LaPierre to mechanic. Benson Nissan offers the same explanation with regard to both

challenged employment decisions. The Nissan Motor Company audit of Benson Nissan's warranty

repair procedures revealed significant errors. Benson Nissan claims that, following the audit, Nissan

Motor Company recommended, and Benson Nissan management agreed, that the Service Department

be reorganized. Benson Nissan further claims that Nissan Motor Company specifically recommended

that LaPierre and others be removed from managerial positions. We find that this explanation, if

believed, would support a finding that the decision not to promote LaPierre and the decision to

demote LaPierre were nondiscriminatory. Accordingly, McDonnell Douglas's burden-shifting
structure becomes irrelevant to LaPierre's claims, and the inference of unlawful discrimination created

by LaPierre's prima facie evidence disappears.

                                                   B

         Our fo cus now shifts to the ultimate question of whether Benson Nissan intentionally

discriminated against LaPierre on the basis of race. A plaintiff alleging employment discrimination

need not come forward with direct evidence of discriminatory intent in order to avoid judgment as

a matter of law. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc).5 Direct

evidence of an employer's discriminatory intent is rare; therefore, Title VII plaintiffs must ordinarily

prove their claims through circumstantial evidence. A plaintiff may establish circumstantial evidence

of intentional discrimination by demonstrating that a defendant's articulated nondiscriminatory

rationale was pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 450 U.S.

at 253, 101 S.Ct. at 1093. In fact, "[t ]he factfinder's disbelief of the reasons put forward by the

defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with

the elements of the prima facie case, suffice to show intentional discrimination." St. Mary's, 509 U.S.

at 511, 113 S.Ct. at 2749.

        In Rhodes v. Guiberson Oil Tools, we considered en banc whether a plaintiff necessarily

presents a jury issue on the ultimate question of intentional discrimination by proving the elements

of a prima facie case and presenting a fact issue as to the truth of the defendant's proffered rationale.

We held that "the answer lies in our traditional sufficiency-of-the-evidence analysis." Rhodes, 75 F.3d

at 993. Our traditional sufficiency-of-the-evidence standard provides, "There must be a conflict in

substantial evidence to create a jury question." Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th

Cir.1969) (en banc). Evidence is "substantial" if it is "of such quality and weight that reasonable and

fair-minded men in the exercise of impartial judgment might reach different conclusions." Id. at 374.

        In Rhodes, we first translated Boeing's language into the employment discrimination context,


   5
    Rhodes v. Guiberson Oil Tools involved a claim of age discrimination brought under the Age
Discrimination in Employment Act ("ADEA"). We apply McDonnell Douglas's Title VII
framework to employment discrimination cases brought under the ADEA. Brodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir.1993).
stating that circumstantial evidence will create a jury question if it is "such as to allow a rational

factfinder to make a reasonable inference that age was a determinative reason for the employment

decision." Rhodes, 75 F.3d at 994. Accordingly, we stated the following standard: "[A] jury issue

will be presented and a plaintiff can avoid summary judgment ... 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." Id.

        The two-pronged standard we announced in Rhodes makes clear that a plaintiff must present

evidence sufficient to create a reasonable inference of discriminatory intent in order to avoid summary

judgment. However, we failed in Rhodes to specify exactly what evidence was necessary to create

such an inference. See id. ("The evidence necessary to support an inference of discrimination will

vary from case to case."). In some cases, "substantial" evidence that the employer's proffered reason

is false, without additional evidence, will support a reasonable inference of discriminatory intent:

        A jury may be able to infer discriminatory intent in an appropriate case from substantial
        evidence that the employer's proffered 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.

Rhodes, 75 F.3d at 994. In other cases, evidence presented to rebut an employer's proffered reason

will not, without additional evidence, support a reasonable inference of discriminatory intent. In

Rhodes, we gave examples of such cases, in which we labeled the plaintiff's evidence "not

substantial":

        In some cases, for instance, the fact that one of the nondiscriminatory reasons in the record
        has proved highly questionable may not be sufficient to cast doubt on the remaining reasons.
        Likewise, an employer's explanation for its proffer of a pretextual reason may preclude a
        finding of discrimination.6

Rhodes, 75 F.3d at 994.

        To apply the two-pronged standard we announced in Rhodes, we first must consider whether

LaPierre's evidence creates a fact issue as to each of Benson Nissan's stated reasons. As discussed

   6
   An employer might explain why it initially proffered a pretextual reason by introducing
uncontroverted proof that, for example, disclosure of the real reason for the challenged decision
would have revealed a business trade secret. Rhodes, 75 F.3d at 994.
above, Benson Nissan's proffered reason for not promoting LaPierre and for demoting LaPierre was

that Nissan Motor Company recommended that the Service Department be reorganized and

specifically recommended that LaPierre and others be removed from managerial positions. In

response, LaPierre offers the deposition testimony of Robert Speights, the most senior official at

Nissan Motor Company involved in the Benson Nissan audit. Speights testified that Nissan Motor

Company made no recommendation that the Service Department be reorganized and made no

recommendation that LaPierre and others be removed from managerial positions. In fact, Speights

testified that Nissan Motor Company policy required auditors not to discuss personnel issues with

the management of a dealership. Speights's testimony clearly presents a fact issue as to whether

Benson Nissan's stated reason was what actually motivated the decisions that LaPierre challenges.7

        We must next consider whether the summary judgment evidence, taken as a whole, creates


   7
    For the first time on appeal, Benson Nissan argues that the Nissan Motor Company
recommendations composed only one of several reasons for the challenged decisions, and
therefore that Speights's testimony does not create a fact issue as to each of Benson Nissan's
proffered reasons. In its "Statement of Material Facts as to Which There Is No Genuine Issue to
be Tried," submitted to the district court in support of its motion for summary judgment, Benson
Nissan proffered the following rationale:

               As a result of heavy financial loss suffered and the operational problems revealed
               by the audit, Nissan recommended, and Benson Nissan management agreed, that
               the Service Department should be reorganized. Further, Nissan specifically
               recommended that LaPierre and others be removed from managerial positions in
               the Service Department.

       Benson Nissan now attempts to parse this language into two independent reasons for
       reorganizing the Service Department: (1) Nissan Motor Company recommended that the
       Service Department be reorganized after the audit, and (2) Benson Nissan management
       agreed that the Service Department be reorganized after the audit. Benson Nissan argues
       that a fact issue exists only as to the Nissan Motor Company recommendations.

               An employer's proffered reasons do not exist apart from the record: "The reasons
       the defendant sets forth are set forth through the introduction of admissible evidence." St.
       Mary's, 509 U.S. at 523, 113 S.Ct. at 2755 (citation and internal quotation marks
       omitted). Benson Nissan points to nothing in the summary judgment record that even
       suggests that the decision of Benson Nissan management to reorganize the Service
       Department was made independently of the alleged recommendations of Nissan Motor
       Company. Assertions in Benson Nissan's brief that the decision to reorganize was made
       because it "made good business sense" are supported only by testimony referring explicitly
       to the alleged Nissan Motor Company recommendations. Speights's deposition testimony
       that no such recommendations were made thus creates a fact issue as to Benson Nissan's
       only articulated explanation for its decision to reorganize the Service Department.
a reasonable inference that race was a determinative factor in Benson Nissan's decisions not to

promote LaPierre and to demote LaPierre. First, LaPierre presents Speights's deposition testimony

that Nissan Motor Company never issued the recommendations relied on by Benson Nissan.

Speights's testimony strongly indicates that Benson Nissan introduced fabricated justifications for the

decisions that LaPierre challenges. In addition, Speights's testimony does not otherwise suggest a

credible nondiscriminatory explanation for these decisions. Therefore, we find that Speights's

testimony is the kind of "substantial" evidence of pretext, as we discussed that term in Rhodes, that

may, without additional evidence, support a reasonable inference of discriminatory intent. Further,

Speights's testimony is not the kind of evidence of pretext that we described in Rhodes as "not

substantial." Speights's testimony directly challenges the only reason articulated by Benson Nissan

for the decisions that LaPierre challenges. Further, Benson Nissan has not provided any explanation

for why a pretextual reason was pro ffered, much less an explanation that precludes a finding of

discrimination.

        Today we need not decide whether Speights's deposition, when coupled with the elements

of LaPierre's prima facie case, is sufficient, without other evidence, to create a reasonable inference

of discriminatory intent. LaPierre presents other evidence in support of his claims. Thomas Discon,

the current Director of Parts and Service at Benson Nissan, testifies that his review of the audit report

revealed no problems with LaPierre's performance. The summary judgment record also includes

evidence concerning the two previous instances in which white males with less experience in the

automobile dealership service industry than LaPierre were named Parts and Service Director.

Considering the summary judgment record as a whole, we find that the evidence in LaPierre's case,

while certainly not overwhelming, is sufficient to create a reasonable inference that race was a

determinative factor in the decisions of Benson Nissan not to promote LaPierre to Director of Parts

and Service and to demote LaPierre to mechanic. Accordingly, we find that a jury issue exists as to

whether Benson Nissan intentionally discriminated against LaPierre on the basis of race, and we hold
that the district court erred in granting Benson Nissan's motion for summary judgment.8

                                                III

       We REVERSE the district court's order granting summary judgment in favor of Benson

Nissan on LaPierre's claims alleging employment discrimination, and we REMAND to the district

court for further proceedings consistent with this opinion.




   8
    We hold only that LaPierre has presented a jury issue on the question of unlawful
discrimination. We express no opinion as to the merits of his claims.
