                      United States Court of Appeals,

                               Fifth Circuit.

                                No. 96-20994.

 Ahsan Ahmad FARUKI;      Ahmed R. Azeez;    Zafar M. Agha Plaintiffs-
Appellants,

                                     v.

               PARSONS S.I.P., INC., Defendant-Appellee.

                               Sept. 29, 1997.

Appeal from the United States District Court for the Southern
District of Texas.

Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.

      DUHÉ, Circuit Judge:

      Plaintiffs-Appellants Ahsan Ahmad Faruki, Ahmed R. Azeez, and

Zafar M. Agha appeal the summary judgment dismissal of their claims

based on the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.,

and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §

621   et   seq.,    against   Defendant-Appellee   Parsons    S.I.P.,   Inc.

("Parsons").       For reasons that follow, we affirm in part, reverse

in part, and remand for proceedings consistent with this opinion.

                                      I

      Faruki, Agha, and Azeez, Pakistani males over the age of

forty, were employed as senior process engineers in Parson's

Processing Engineering Department ("Department").            G. Kin Taylor,

an Anglo-American male, has managed this Department since 1988. In

his capacity as manager, he supervised all process engineers and

was ultimately responsible for their job performance.

      Parsons discharged Faruki in May 1993, and it discharged Agha


                                      1
in January 1994.        Azeez tendered his resignation to Parsons,

effective February 1994, and immediately joined M.W. Kellogg, a

Parsons's    competitor.       Azeez     alleges,      however,    that   he   was

constructively discharged.      Appellants brought suit, each claiming

that their terminations were motivated by discriminatory animus.

In particular, they assert Parsons discharged them because of their

national origin and their age, in violation of Title VII of the

Civil Rights Act of 1964 ("Title VII") and in violation of the Age

Discrimination in Employment Act of 1967 ("ADEA"), respectively.

     The district court found that Azeez failed to raise a genuine

issue   of   material   fact   as   to       whether   he   was   constructively

discharged from his position at Parsons, and it therefore granted

Parson's motion for summary judgment against him.                     Assuming,

without deciding, that Faruki and Agha each made a prima facie

showing under Title VII and the ADEA, the court then found that

Parsons had articulated legitimate non-discriminatory reasons for

terminating Faruki and Agha, and that Faruki and Agha failed to

show these reasons were pretextual and that the real reason for the

discharge was discrimination. The court therefore granted Parson's

motion for summary judgment against them.                    Appellants timely

appeal.

                                       II

        We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the non-movant.

See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir.1996).

Summary judgment is appropriate if "the pleadings, depositions,


                                         2
answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law."       Fed.R.Civ.P. 56(c);         accord Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91

L.Ed.2d 265 (1986).

                                    III

         Title   VII   proscribes    an    employer     from,    inter     alia,

discharging an individual because of his or her national origin.

See 42    U.S.C.   §   2000e-2(a)(1).      The   ADEA   proscribes       similar

treatment on the basis of age.           See 29 U.S.C. § 623(a)(1).         The

same evidentiary procedure for allocating burdens of proof applies

to discrimination claims under both statutes.           See Meinecke v. H &

R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995);              Bodenheimer v.

PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir.1993) (citations

omitted).

      To establish discriminatory discharge under Title VII, a

plaintiff must first establish a prima facie case of discrimination

by demonstrating that she:      (1) is a member of a protected class;

(2) was discharged;     (3) was qualified for the position from which

she was discharged;        and (4) was replaced by a member of an

unprotected class.      See Meinecke, 66 F.3d at 83;        Vaughn v. Edel,

918 F.2d 517, 521 (5th Cir.1990).           "In cases where the employer

discharges the plaintiff and does not plan to replace her, we have

held that the fourth element is, more appropriately, that after

[the] discharge others who were not members of the protected class


                                     3
remained in similar positions."            Meinecke, 66 F.3d at 83 (internal

quotation marks and citation omitted) (alteration in original).

The     first   three     elements    of        a    prima     facie   case   of    age

discrimination are identical to those of a Title VII prima facie

case.     See id.    The fourth element is similar, although we have

worded it somewhat differently:            The plaintiff must show that she

"was either i) replaced by someone outside the protected class, ii)

replaced by someone younger, or iii) otherwise discharged because

of [her] age."       Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992

(5th Cir.1996) (citing Bodenheimer, 5 F.3d at 957);                      Meinecke, 66

F.3d at 83 (citation omitted).

        The prima facie case, if established, raises a presumption of

discrimination, which the defendant must rebut by articulating a

legitimate,     non-discriminatory             reason    for    its    action.      See

Bodenheimer, 5 F.3d at 957.          If the defendant carries this burden,

then the presumption raised by the plaintiff's prima facie case

disappears.     See Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

The plaintiff must then prove that the defendant's proffered

reasons are not the true reason for the employment decision and

that unlawful discrimination is.                    See St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d

407   (1993).       The   plaintiff    retains          the    ultimate    burden   of

persuasion throughout the case.            See Burdine, 450 U.S. at 253, 101

S.Ct. at 1093.

                                           A


                                           4
      As stated above, Azeez must show, as part of his prima facie

case, that he was discharged. Where, as here, an employee resigns,

she may satisfy the discharge requirement by proving constructive

discharge.   See Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297

(5th Cir.1994).   To prove constructive discharge, a plaintiff must

establish that working conditions were so intolerable that a

reasonable employee would feel compelled to resign.        See id.    In

our determination, we consider many factors relevant, including

evidence of badgering, harassment, or humiliation by the employer

calculated to encourage the employee's resignation.              See id.

(listing various factors).

      Summarizing the evidence that it had considered on this

issue, the district court concluded that Azeez had failed to show

a factual dispute on the issue whether he was constructively

discharged. We disagree. Our review of the court's Memorandum and

Opinion reveals that the court failed to address Azeez's most

compelling   evidence   of   constructive   discharge,   viz.,   Azeez's

deposition testimony that Taylor had told Azeez that Azeez should

find another job, as Parsons would be unable to retain him, and

that he had one week before he would be placed on indefinite unpaid

leave. Taking this allegation as true, as we must, and drawing all

justifiable inferences in his favor, see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202

(1986), we conclude that Azeez has established a genuine issue of




                                   5
material fact on the discharge element of his prima facie case.1

Cf. Burks v. Oklahoma Pub. Co., 81 F.3d 975, 978 (10th Cir.1996)

(recognizing that employee can prove constructive discharge by

showing that she faced choice between resigning or being fired),

cert. denied, --- U.S. ----, 117 S.Ct. 302, 136 L.Ed.2d 220 (1996);

Jenkins v. State of LA., Thru Dep't of Corrections, 874 F.2d 992,

996 (5th Cir.1989) (stating that constructive discharge can be

proven with evidence that plaintiff-employee was given ultimatum).

        Summary judgment is still appropriate, however, if the record

demonstrates that Azeez cannot establish the remainder of his prima

facie case or if it demonstrates that Parsons had a legitimate,

non-discriminatory reason for its action.        Parsons concedes that

Azeez is a member of a protected class, and it points to no

evidence showing that Azeez was unqualified for his position.

Parsons does dispute, however, whether Azeez has shown that he was

replaced by a member of an unprotected class.             Indeed, Taylor

testified that Azeez was not replaced.           The summary judgment

evidence reveals, however, that Parsons hired four senior process

engineers, all of whom are Anglo-American and one of whom was under

the age of forty, in a two-week period beginning five days after

Taylor told Azeez that he would be placed on indefinite unpaid

leave.      This   inconsistency   creates   a   fact    issue   that   is

inappropriate for summary judgment resolution.          Moreover, Parsons

has failed to articulate any legitimate, nondiscriminatory reasons

    1
     Our conclusion obviates the need to address the merits of the
remainder of Azeez's summary judgment evidence—as summarized by the
district court—relevant to this discharge issue.

                                   6
for its employment decision.        A fact issue thus exists as to

whether   Parsons's    employment       decision   was     motivated    by

discriminatory animus.   We therefore reverse the grant of summary

judgment as against Azeez, and remand for further proceedings.

                                    B

     Agha and Faruki both complain that the district court erred in

considering Taylor's affidavit testimony in support of Parsons's

motion for summary judgment insofar as the affidavit is based upon

hearsay and not upon personal knowledge.           We need not decide

whether Taylor's affidavit is incompetent.          Our review of the

court's   Memorandum   and   Opinion    demonstrates     that   the   court

considered evidence other than Taylor's affidavit in reaching its

conclusion.2

      As did the district court, we assume, arguendo, that Agha and

Faruki have established a prima facie case of discrimination.

Reaching the second prong of the inquiry, we agree with the

district court that Parsons presented competent summary judgment

evidence establishing that it had legitimate, non-discriminatory

reasons for terminating both Agha and Faruki.            Parsons offered

evidence demonstrating that it terminated Agha because of his poor

job performance, his difficulties in working with others, and his




      2
       In particular, with respect to Agha, the court considered
Taylor's deposition, Agha's deposition, a memo written by section
manager Bob Dawn, and a memo written by company supervisor J.J.
Powers.   With respect to Faruki, the court considered a memo
written by Powers and a four-page report written by manager Steve
Woods.

                                    7
inadequate technical and leadership skills.3                Parsons offered

evidence demonstrating that it discharged Faruki because of his

poor       job   performance,   his   limited   technical   knowledge,   his

inefficiency, his inability to complete assigned tasks, and his

excessive billing.       Finally, we agree with the district court that

both Agha and Faruki failed to present summary judgment evidence

sufficient to raise a fact issue as to whether Parsons's proffered

reasons were pretextual.4 We therefore affirm the district court's

       3
      Our conclusion that Agha failed to show Parsons's proffered
reasons are pretextual is buttressed by the fact that Taylor, the
manager who terminated Agha, was the same individual who had hired
Agha. Where, as here, the same actor hires and fires an employee,
an inference that discrimination was not the employer's motive in
terminating the employee is created. See Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir.1996).
       4
      Agha alleges that the following evidence supports his claim
that Parsons's proffered reasons are a pretext for unlawful
discrimination: (1) the denial of his request for his own personal
office computer; (2) the denial of his request to attend a couple
of in-house training seminars; (3) Taylor's derogatory comment
about an Indian interviewee who was later hired;      and (4) the
positive comments of a Parsons's supervisor about Agha's work.
This evidence, either singly or in combination, does not carry
Agha's burden.

            First, Agha did not present any evidence that he was the
       only employee denied a personal computer, nor did he present
       any evidence that only employees of South Asian descent were
       denied personal computers. Second, the training seminars Agha
       alleges he was not allowed to attend taught simulation and
       heat exchanger skills, work that Agha was not asked to
       perform.    Furthermore, Agha admitted that Anglo-American
       employees were also denied the opportunity to attend these
       seminars. Third, Taylor's challenged comment was not alleged
       to have been repeated, and it was remote in time to Agha's
       termination for it to be indicative of discriminatory animus.
       Cf. Brown, 82 F.3d at 655-56 (stating that supervisor's
       isolated, remote in time, derogatory statement is not
       compelling evidence of discrimination). Fourth, the positive
       comments upon which Agha relies were made with respect to only
       one particular project on which Agha worked and concerned work
       the majority of which Agha performed in 1991-92, years before

                                        8
grant of summary judgment as against Agha and Faruki.

                                IV

     For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART,

and REMAND FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.




Agha's termination in 1994.

          Faruki offers some of this same evidence in support of
     his claim. In addition, he offers evidence that one Parsons
     supervisor did not believe Faruki's work justified his
     termination. As the district court pointed out, however, at
     most, this evidence shows that supervisors disagreed as to the
     wisdom of Taylor's decision. The relevant inquiry, however,
     is only whether the employer's decision was discriminatory.
     See McDaniel v. Temple Independent School Dist., 770 F.2d
     1340, 1349 (5th Cir.1985). Faruki also submits evidence that
     Taylor terminated three engineers of South Asian descent on
     the same day in 1992. This conclusory allegation, without
     more, does not carry Faruki's burden under Hicks.       Faruki
     offers no evidence indicating the competence of these three
     engineers. Finally, Faruki alleges in his affidavit that he
     received favorable evaluations during the time when Parsons
     alleges it received unfavorable reports of Faruki's work.
     Faruki's allegation is conclusory however; he fails to offer
     any evidence verifying his claim.

                                9
