                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                   FILED
                               No. 03-15652               U.S. COURT OF APPEALS
                           Non-Argument Calendar            ELEVENTH CIRCUIT
                                                               June 1, 2005
                         ________________________
                                                              THOMAS K. KAHN
                                                                   CLERK
                     D.C. Docket No. 02-01763-CV-WBH-1

BRIDGET C. CRAWFORD,

                                                        Plaintiff-Appellant,

      versus

STEPHEN L. JOHNSON,
Administrator, Environmental Protection
Agency, Atlanta, Georgia

                                                        Defendant-Appellee.

                        __________________________

               Appeal from the United States District Court for the
                          Northern District of Georgia
                         _________________________
                                (June 1, 2005)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
      On appellee’s motion, the district court granted appellee summary judgment

on appellant’s claim of discrimination under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634. Appellant, an Environmental

Protection Agency (EPA) employee, claimed that the EPA discriminated against

her by failing to promote her and ultimately awarding a higher paying position to a

younger employee. The district court rejected her claim on two grounds: (1) she

had not suffered an adverse employment action and thus could not make out a

prima facie claim of age discrimination under the ADEA, and (2) if she

established a prima facie case, she failed to show that the EPA’s non-

discriminatory reasons for its action were pretextual.

      To establish a prima facie case of age discrimination based on

circumstantial evidence (which is what appellant had to do here), the evidence

must show that (1) the plaintiff is a member of the protected group, (2) adverse

employment action was taken against her, e.g., failure to hire or promote; (3) she

was replaced by a person outside the protected group; and (4) she was qualified

for the position for which he was rejected. Chapman v. AI Transport, 229 F.3d

1012, 1024 (11th Cir. 2000).

      Once the plaintiff establishes a prima facie case of discrimination, the

burden shifts to the employer to provide a “legitimate, nondiscriminatory reason

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for its actions.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th

Cir. 1998). Importantly, this burden is one of production, not persuasion,

Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983), and the

proffered justification need only be one that “might motivate a reasonable

employer.” Chapman, 229 F.3d at 1031.

      If the employer satisfies its burden of production, the burden shifts back to

the plaintiff who must establish that the employer’s reason was a “pretext to mask

unlawful discrimination.” Turlington, 135 F.3d at 1432. In this final step, the

plaintiff carries the “ultimate burden of establishing by a preponderance of the

evidence that a discriminatory intent motivated the employer’s action.” Perryman,

698 F.2d at 1142.

      The EPA was entitled to summary judgment because (1) prior to 1997

appellant could not have been promoted to a position that did not exist, and (2)

after 1997 she was promoted as soon as a higher-paying position was created and

became available. Therefore, she was unable to establish that she suffered an

adverse employment action, and hence, could not establish a prima facie case of

discrimination. Moreover, if, like the district court, we assume that appellant

made out a prima facie case of discrimination, summary judgment was still




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appropriate because she failed to show that the EPA’s articulated reasons for not

promoting her amounted to a pretext of unlawful age discrimination.

      AFFIRMED.




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