                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                         _______________________

                             Summary Calendar
                               No. 00-30549

                         _______________________


                            Jane F. Smolensky,
                                             Plaintiff-Appellant


                                   versus

          Grover C. McDaniel and General Electric Company,
                                          Defendants-Appellees




_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (99-CV-1849)
_________________________________________________________________


                              January 5, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

            Jane F. Smolensky appeals from the district court’s grant

of summary judgment and other rulings in favor of Defendants-

Appellees    Grover    C.   McDaniel   and   General    Electric    Company.



     *
            Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under the limited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 5th Cir. Rule 47.5.4.
Smolensky’s action is rooted in GE’s decision not to hire her to

fill either of two positions in the Metairie, Louisiana office of

its General Electric Medical Systems Division (“GEMS”).     Finding

reversible error only in the grant of summary judgment to GE, we

affirm in part and reverse and remand in part.

                             BACKGROUND

            Smolensky is a former GE employee who worked for three

different divisions of the company (but never for GEMS) over the

course of 28 years, but was laid off in 1996 due to lack of work.

In May, 1998, Smolensky, then age 51, applied for a position as a

“Sales Secretary” at GE’s GEMS unit.   Smolensky was interviewed by

Grover McDaniel for this position, but was ultimately not awarded

the job.     GE asserts that Smolensky was not hired due to a

restructuring in the Metairie office, which eliminated the Sales

Secretary position.   Additionally, McDaniel was not impressed with

Smolensky’s “level of enthusiasm and teamwork spirit.” In the wake

of the office reorganization, the duties of the Sales Secretary

were divided between a new “Parts Analyst” and the “Regional Sales

Administrator.” A thirty year old male was hired for Parts Analyst

position.

            In July 1998 the Regional Sales Administrator job opened

up, and Smolensky was again interviewed.   Smolensky apparently did

not impress her interviewers, but this point became moot because,

before a new Regional Sales Administrator could be hired, the GEMS



                                  2
home office imposed a hiring freeze.         Because of the hiring freeze,

the Regional Sales Administrator position was filled by a part-time

contract employee (a former employee of GEMS already familiar with

its work) retained through an outside staffing firm.

            Frustrated by her inability to secure a position with GE,

Smolensky filed this lawsuit against GE and McDaniel, the GEMS

Senior Operations Specialist who had initially interviewed her. To

avoid federal court, Smolensky brought claims only under the

Louisiana Age Discrimination in Employment Act and the constitution

of   Louisiana,    and   a   breach   of   contract   action.      GE    removed

Smolensky’s case to federal district court on both diversity and

federal question (ERISA preemption) grounds.1

            After discovery, the parties filed cross motions for

summary judgment.        After GE had filed its Motion for Summary

Judgment, Smolensky sought leave to amend her complaint, proposing

41 new paragraphs and several new allegations.            The district court

granted    GE’s   motion     for   summary    judgment,     denied      both   of

Smolensky’s motions and entered judgment with prejudice against

her.

            Smolensky now appeals, asserting that the district court

improperly denied her motion to remand, erroneously dismissed


       1
            At the same time that it denied Smolensky’s motion to remand, the
district court dismissed her claims against McDaniel, concluding that he had been
fraudulently joined in the action to defeat diversity and that there was no
possibility that Smolensky could recover against him. Smolensky appealed the
district court’s order denying remand and dismissing all claims against McDaniel,
but on December 6, 1999 this court dismissed Smolensky’s appeal.

                                       3
Grover McDaniel, abused its discretion in denying the motion to

amend her complaint, and improperly granted summary judgment to GE.

            Having reviewed the parties’ briefs, the district court’s

opinion, and pertinent sections of the record, we summarily reject

certain of her contentions.           First, this Court agrees with the

district court that federal jurisdiction was sustainable at least

on diversity grounds, and thus removal was proper.                    Further,

because “there is no possibility that Plaintiff can recover from

Defendant McDaniel” under the Louisiana age discrimination law or

state constitution, we affirm the dismissal of appellant’s claims

against McDaniel based on the district court’s reasoning and

analysis.    The district court’s granting of summary judgment to GE

on Smolensky’s state constitutional and contract2 claims was also

correct.    Finally, the district court did not abuse its discretion

in denying Smolensky’s late-filed motion to amend her complaint.

Nance v. Gulf Oil Corp., 817 F.2d 1176 (5th Cir. 1987).              The court

did not err in deciding that it raised new factual contentions on

the eve of trial inexcusably, after GE had filed its summary

judgment motion.      Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.

1999).3


      2
            Even if the 1998 handbook applied to Smolensky, it specifically
rejects that its terms create a contract with employees.
      3
            Cf. Union Planters National Leasing v. Woods, 687 F.2d 117,121 (5th
Cir. 1982) (district court did not abuse its discretion in denying leave to amend
more than a year after suit had been filed and after grant of summary judgment
in favor of opposing party); Daves, 661 F.2d at 1024 (no abuse of discretion
where district court refused leave to amend on eve of trial and proposed
amendment came more than 19 months after commencement of suit); Addington, 650

                                       4
           However, a closer examination of the grant of summary

judgment to GE on Smolensky’s Louisiana law age discrimination

claims is warranted in light of the Supreme Court’s intervening

decision in Reeves v. Sanderson Plumbing, ___ U.S. ____, 120 S.Ct.

2097 (2000).     The district court acknowledged that Smolensky has

established her prima facie case for age discrimination.             What is

at issue are GE’s stated non-discriminatory reasons for its adverse

employment decision regarding Smolensky.           See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25

(1973); Haas v. Advo Systems, 168 F.3d 732, 733 (5th Cir. 1999).

           The   district    court   applied    this   court’s   pre-Reeves

standard to Smolensky’s age discrimination claims and concluded

that Smolensky had not presented sufficient evidence of actual

discrimination to withstand summary judgment.           The district court

concluded that “while [Plaintiff-Appellant’s] evidence may support

an inference that the Defendant’s reasons are untrue, it is not the

type of ‘substantial’ evidence that supports a reasonable inference

of discriminatory intent” (emphasis in original).

           In the time since the district court entered this order,

the Supreme Court decided Reeves and clarified the standard for

what a discrimination plaintiff must show to rebut a defendant’s




F.2d at 667 (district court was within the bounds of its discretion when it
denied party leave to amend more than a year after the institution of the suit
and where parties had already terminated discovery).

                                      5
proffered non-discriminatory justification.                     The Supreme Court

announced that:

      Proof that the defendant’s explanation is unworthy of
      credence is simply one form of circumstantial evidence
      that is probative of intentional discrimination, and it
      may be quite persuasive. . . . In appropriate
      circumstances, the trier of fact can reasonably infer
      from the falsity of the explanation that the employer is
      dissembling to cover up a discriminatory purpose. . . .
      Thus, a plaintiff’s prima facie case, combined with
      sufficient evidence to find that the employer’s asserted
      justification is false, may permit the trier of fact to
      conclude that the employer unlawfully discriminated.

Reeves, 120 S.Ct. at 2108.              The Supreme Court went on to explain

that “because a prima facie case and sufficient evidence to reject

the employer’s explanation may permit a finding of liability, the

Court of Appeals erred in proceeding from the premise that a

plaintiff must always introduce additional, independent evidence of

discrimination.”        Id. at 2109.         To survive summary judgment under

the   Reeves    standard,         the    plaintiff     must    introduce      evidence

sufficient     to     allow   a    reasonable       fact-finder      to    infer     that

discrimination did occur. Evidence that the employer’s legitimate,

non-discriminatory reason for its hiring decision is false may

permit or contribute to such an inference.

            However,       evidence         that    the      employer’s      proffered

justification is untrue does not guarantee the availability of an

inference of discrimination.                In interpreting Reeves, this Court

has noted      that    “there     will      be   instances    where,      although    the

plaintiff    has      established       a   prima   facie     case   and    set    forth

sufficient evidence to reject the defendant’s explanation, no

                                             6
rational     fact    finder       could     conclude      that    the       action   was

discriminatory.”       Vadie v. Mississippi State University, 218 F.3d

365, 374 n.23 (5th Cir. 2000).            Such an instance would occur where

“the plaintiff created only a weak issue of fact as to whether the

employer’s     reason       was    untrue       and    there     was    abundant     and

uncontroverted independent evidence that no discrimination had

occurred.”    Id. (citing to Reeves, 120 S.Ct. at 2109).

           Under      the    somewhat       more      relaxed    Reeves      framework,

Smolensky has barely adduced sufficient evidence to create a

genuine issue of material fact as to GE’s alleged discriminatory

motive in not hiring her as a Parts Analyst.                     Smolensky concedes

that there is no direct evidence of GE’s discriminatory intent.

The probative circumstantial evidence introduced by the Appellant,

though   weak,      might    allow    a     reasonable      juror      to    infer   age

discrimination.      In reaching this post-Reeves conclusion, however,

we by no means forecast whether, after a trial, the evidence will

in fact be sufficient to sustain a verdict for Smolensky.

           We initially point out what is not probative.                      Smolensky

relies heavily on the circumstantial argument that she was not

hired by GEMS because, as a former GE employee, she would have been

entitled to a vast amount of vacation time and sick leave, along

with   assorted     early    retirement         options   and    pension      benefits.

Assuming, as we must for summary judgment purposes, that this

argument is true and that GEMS refused to hire Smolensky in order

to prevent her from receiving her accumulated GE benefits, this

                                            7
still provides no evidence of age discrimination.                     The Supreme

Court has held that:

      “an employer does not violate the ADEA just by
      interfering with an older employee’s pension benefits
      that would have vested by virtue of the employee’s years
      of service . . . This is true even if the motivating
      factor is correlated with age, as pension status
      typically is.”

Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701 (1993).

Age   and   years   of   service   to       an    employer    are   separate      and

analytically distinct categories.                Id.   The law does not protect

against discrimination on the basis of costly perks earned through

years of service. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d

144, 149 (5th Cir. 1995) (“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”).

So Smolensky’s circumstantial evidence that GE refused to hire her

based on her pension and leave status is not evidence of age

discrimination at all.

            The other critical piece of circumstantial evidence on

which Smolensky relies is the “Schaefer Letter,” the position

letter sent from GE to the federal Equal Opportunity Employment

Commission (“EEOC”) at the outset of the EEOC’s investigation and

prior to this litigation. Smolensky now seeks to use this document

to demonstrate that GE’s proffered non-discriminatory reasons for

not hiring Smolensky were false, thereby allowing the jury to draw

an inference of      age discrimination.               See Reeves, 120 S.Ct. at


                                        8
2109.   GE admits that factual errors were made in the Schaefer

letter, i.e. that Smolensky was applying for a “receptionist

position”   (in   fact   she       applied    for   a   more   responsible     sales

secretary post), and that Smolensky withdrew her application when

GE told her this position and the Regional Sales Manager position

were part-time and/or contract-agency positions (Smolensky denies

these   assertions).          GE     states    that     the    first   error    was

“immaterial,” but it doesn’t explain how the second error, crucial

to its side of the case, was made.             This letter appears to create

discrepancies     in   GE’s    proffered       explanations     for    not   hiring

Smolensky. Post-Reeves, a jury issue as to GE’s motivation exists.

            For these reasons, the judgment of the district court is

AFFIRMED in Part, and REVERSED and REMANDED in Part.




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