                                  United States Court of Appeals,

                                            Fifth Circuit.

                                           No. 91–2647.

                    Harry B. FIELDS, III, Plaintiff–Appellee Cross–Appellant,

                                                  v.

            J.C. PENNEY COMPANY, INC., Defendant–Appellant Cross–Appellee.

                                           Aug. 18, 1992.

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

Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.

       PER CURIAM:

       Harry B. Fields, III, sued J.C. Penney Co., Inc. (J.C. Penney), his former employer, claiming

age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621

through § 634. The jury found in favor of Fields on his claim and the district court awarded damages

based upon the jury's verdict. The district court declined to grant J.C. Penney's motions for directed

verdict and motion for judgment notwithstanding the verdict (JNOV). J.C. Penney appeals these

rulings as well as rulings admitting certain disputed evidence. Fields cross-appeals for prejudgment

interest on the backpay awarded by the jury. Persuaded that the district court erred in denying J.C.

Penney's motion for directed verdict at the close of plaintiff's evidence, we reverse and render

judgment in favor of J.C. Penney.



                                  I. Facts and Procedural History

       The undisputed evidence at trial demonstrated the following facts. Harry B. Fields, III, the

forty-three year old plaintiff in this case, worked for J.C. Penney from 1967 until 1989 when he was

fired. During that time, Fields held several different managerial positions in various J.C. Penney

stores. In November 1987, Fields was transferred to J.C. Penney's Bay City store where he was

assigned duties as the merchandising manager of the women's fashions departments.               As a

merchandising manager, Fields was required to maintain an inventory of desirable merchandise by
estimating sales and also preventing the departments from becoming overstocked. His duties also

required that he manage sales personnel and present merchandise in an appealing manner. These were

duties similar to those held by Fields at previous J.C. Penney stores.



       When Pat Allen became the Bay City store manager in July 1988, he noted that Fields was

having difficulty in several areas of Fields' responsibility. In a December 1988 performance review,

Allen downgraded Fields' performance from level 3 (average) to level 4 (needs improvement). He

also placed Fields on probation and set goals to assist Fields in regaining his satisfactory rating. In

a subsequent perfo rmance review, Fields was again rated a level 4. His probationary period was

extended 90 days, and Allen provided Fields a new list of objectives. On May 9, 1988, Allen fired

Fields for failing to meet these objectives and for failing to improve his performance to Allen's

expectations. Allen assumed Fields' duties, in addition to his regular managerial duties, and

performed them for nearly two years until January 1991, when Allen was transferred to another store.



       Shortly after Fields was fired in May 1989, J.C. Penney hired a new shoe salesperson, a Ms.

Chris Ruth. Seventeen months later, in October 1990, Ruth was promoted to merchandise manager

for the women's shoe department, a job which Fields had not previously held. Nevertheless, based

on the fact that the new employee was younger than he was, Fields brought the instant suit pursuant

to the ADEA claiming that he had been in effect replaced by the new employee and that he had been

terminated because of his age (43). At trial the district court denied two motions for directed verdict

made by J.C. Penney—one at the close of plaintiff's evidence and one at the conclusion of all of the

evidence.



       The jury found that Fields' age contributed to his firing and assessed damages of $24,196 as

backpay and $75,000 as future lost wages. J.C. Penney moved for JNOV and a new trial; the motion

was denied by the district court. J.C. Penney appeals.
                                           II. Discussion

A. The Standard of Review

        J.C. Penney has appealed t he district court rulings on its motions for directed verdict and

JNOV. By those motions, J.C. Penney asserted that Fields did not prove a prima facie violation of

ADEA.



        The standard of review for analyzing the district court's rulings on a motion for directed

verdict and a motion for JNOV is substantially the same. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This Court must review the decision of the

district court by examining the evidence before the jury and the reasonable inferences drawn from that

evidence. The aim is to determine whether a rational jury could reach the conclusion that this jury

actually reached. This Court utilizes the same standard as the district court to determine whether

sufficient evidence exists to support the jury verdict. "If the facts and inferences point so strongly

and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive

at a contrary verdict," the court should grant a motion for directed verdict or a motion for judgment

notwithstanding the verdict. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).



B. Analysis of Evidence Produced by Plaintiff at Trial

        In order to recover under the ADEA, the plaintiff must first prove a prima facie case of age

discrimination. To do so, the plaintiff must present evidence to show that: (1) he was discharged;

(2) he was qualified for the position; (3) he was within the protected class at the time of discharge;

and either (4)(a) he was replaced by someone outside the protected class, or (b) he was replaced by

someone younger, or (c) he was otherwise discharged because of his age.1 Bienkowski v. American




   1
    This Court has also identified the three alternatives within the fourth element as separate
elements. See, e.g., Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir.1988).
Because it is necessary to establish only one of these alternatives, however, it is more accurate to
identify them as aspects of a single element.
Airlines, Inc., 851 F.2d 1503, 1504–05 (5th Cir.1988).2 The burden of production does not shift to

the defendant until evidence sufficient to prove a prima facie case of discrimination has been

presented. Bohrer v. Hanes Corp., 715 F.2d 213, 218 (5th Cir.1983).



        There is no dispute with respect to the first and third of these elements: Fields was

discharged, and he was within the protected class at the time of discharge. There was dispute as to

the second element, whether Fields was qualified. There was a quantity of statistical evidence

introduced at trial on that issue, evidence which was subject to interpretation by the jury and which

constituted some evidence upon which the jury could have found that Fields was qualified. This

Court need not examine the evidence introduced on the second element in detail as the fourth and

final element is dispositive of this case.



        The fourth and final element necessary to prove a prima facie case is that Fields was replaced

with someone younger or outside the protected class, or he was otherwise discharged because of his

age. There is no evidence in the record indicating that Fields' replacement was younger or outside

   2
    The test enumerated above for showing a prima facie violation of the ADEA was adapted
from the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973), where it was initially developed to show racial discrimination. In a racial context, the
fourth element required the plaintiff to show that he was replaced by someone outside of the
protected class or that he was otherwise discharged because of his race. Thus replacement by a
person of another race would be sufficient evidence to prove a prima facie case.

                 In the context of age, the test requires some modification. The ADEA sets out a
        protected class as those employees 40 years of age or older. 29 U.S.C. § 631(a). Thus all
        persons under the age of 40 are outside the protected class. Replacement of an employee
        within the protected class—age 40 or older—with an employee outside the protected
        class—age 39 or younger—constitutes a clear violation under the McDonnell Douglas,
        test provided there is a sufficient difference in the age of the two parties. However, this
        test leaves open the possibility of discriminating against an older employee by replacing
        him with a younger employee when the younger employee is himself within the protected
        class—a situation not found in the racial context because of the definition of the class. For
        example, an employee terminated because he had reached the age of 60 who was replaced
        by an employee of age 50 would have no recourse based upon the McDonnell Douglas
        test as originally adopted. For that reason, this Court in Elliott v. Group Medical &
        Surgical Service, 714 F.2d 556, 565 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104
        S.Ct. 2658, 81 L.Ed.2d 364 (1984), expanded the test to include those instances when an
        employee is fired on the basis of age and replaced by a younger employee who is himself
        within the protected class.
the protected class. During cross-examination, Fields stated that he did not know who replaced him

after he was fired.



       Q: Okay. And after you were terminated, do you know who assumed your duties?

       A: After I was fired, no, sir, I don't.

       Q: So you don't know if anyone younger than you assumed the duties at the time you were
              fired, correct?

       A: No, sir, I do not.

3 Tr. 146–47.



       In contrast to Fields' testimony was the testimony of Allen, the store manager who fired

Fields. Allen stated that he assumed the duties of Fields and that he was 47 years of age at the time,

four years older than Fields. Allen also testified that Ruth, the employee who was later promoted to

merchandising manager of the shoe department, was not hired to replace Fields. It is therefore

immaterial that Ruth was younger than Fields. Ruth's job was separate and apart from any duties

previously performed by Fields.



       A careful review of the record shows that the only evidence Fields presented to substantiate

the fourth element of an ADEA claim was the testimony of Allen. He presented no other affirmative

evidence. Moreover, he presented no controverting evidence to rebut Allen's statement that Allen

himself assumed Fields' duties. Thus, the only evidence in the record showed that an older employee

and not a younger one replaced Fields.



        Fields also asserted that he was denied the opportunity to transfer to vacant positions in other

stores. Through counsel, Fields claimed during oral argument and in his brief that the vacant

positions he sought to obtain were filled by younger employees because J.C. Penney could pay lower

salaries to them based upon their youth. However, Fields himself testified on cross-examination that

he was ineligible for such a transfer based on his low performance rating. Furthermore, the record
does not substantiate Fields' claim that younger employees were paid lower salaries than he would

have been paid. Fields, the plaintiff, has not pointed to any evidence in the record demonstrating what

salary he would have received had he been transferred or what salary the employees who ultimately

filled those positions received.



        There is likewise no evidence in the record to suggest that Fields was otherwise discharged

because of his age. In an attempt to sustain his burden of production, Fields points to his own

testimony. Fields testified that a Mr. Glines, a manager of an unrelated J.C. Penney store, told him

that he had heard that Fields was to be fired and that there was a lot of that going around with people

of Fields' age.3 This attenuated testimony, introduced after the plaintiff had already rested his case,

does not provide a sufficient basis on which to conclude that Fields was fired because of his age.

According to the record of Fields' testimony, Glines' statement was not that the people fired were

terminated because of their age, but rather that several people recently discharged happened to be

approximately the same age as Fields. There could, for instance, have been any number of reasons

for the discharge of the other employees aside from age discrimination. Furthermore, Glines' asserted

statements say nothing about the reasons for Fields ' termination. Even if all the other employees had

been terminated for age related reasons, that fact is not probative of the reasons underlying Fields'

dismissal.



        In sum, a review of the record reveals that the only evidence adduced as to Fields' replacement

was the testimony of Pat Allen. Fields presented no contradictory evidence from which the jury could

conclude that anyone besides Allen replaced Fields. Since Allen is older than Fields, there was simply

no basis in the evidence for the jury's implied finding that a younger employee or someone outside

the protected class replaced Fields. Without evidence of a younger replacement or evidence that

otherwise demonstrated that age was the basis for Fields' termination, Fields failed to sustain his


   3
    While this testimony may have constituted hearsay, J.C. Penney failed to preserve the error as
no proper objection was made to its admission in the district court.
burden to present facts sufficient to prove a prima facie case of discrimination.



       Because Fields failed to prove a prima facie case of age discrimination, J.C. Penney was never

obligated to come forward with any evidence to rebut that claim. This Court need not reach the issue

of whether the explanation offered by J.C. Penney was a pretext for discrimination as the plaintiff

failed to shift the burden of production to the defendant.4 The district court erred in denying J.C.

Penney's JNOV motion.



                                           III. Conclusion

       For the reasons stated, this Court reverses the district court's judgment and renders judgment

in favor of J.C. Penney.



       REVERSED AND RENDERED.




   4
    This conclusion obviates the need to consider whether J.C. Penney's evidentiary questions
were properly preserved for appeal and whether Fields as cross-appellant was entitled to
prejudgment interest.
