                                   Revised March 29, 1999

                         UNITED STATES COURT OF APPEALS
                                 For the Fifth Circuit



                                        No. 97-30595



                           BEVERLY BAUER,

                                                                             Plaintiff-Appellant,

                                           VERSUS



                              ALBEMARLE CORPORATION,

                                                                           Defendant-Appellee.




                         Appeal from the United States District Court
                            for the Middle District of Louisiana



                                       March 15, 1999
Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.


DENNIS, Circuit Judge:



                                         Background

       Beverly Bauer, the plaintiff/appellant, filed suit against Albemarle Corporation alleging

discrimination on the basis of her age in violation of the Age Discrimination in Employment Act

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(ADEA), 29 U.S.C. § 621 et seq., and on the basis of her gender in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.

       Mrs. Bauer1 began wo rking for Ethyl Corporation as a research chemist in 1981. Ethyl’s

Chemicals Group was reorganized in 1994 as Albemarle Corporation, a separate corporate entity.

In 1993, prior to this reorganization, Mrs. Bauer was informed that her position would be eliminated

as part of a reduction in force (RIF) designed to coincide with the spin-off of Albemarle. Mrs. Bauer

subsequently learned that she was not terminated as part of the 1993 RIF but she was reassigned to

another position. Her new position involved comparable duties and the same pay, with a lower

maximum salary than her former job.

       Dennis Bauer, Beverly’s husband, was also employed by Albemarle. On February 1, 1995,

Mr. Bauer was terminated for poor job performance. Mr. Bauer attempted to remove several

documents from his office when he departed but his supervisor demanded that the documents remain

on the premises. As a result of Mr. Bauer’s actions, his office was searched. The search revealed

information concerning Mr. Bauer’s involvement with two businesses, Catherx Pharmaceuticals, Inc.

(Cat herx) and Saratoga Chemicals, Inc. (Saratoga). Mr. Bauer’s involvement with Catherx and

Saratoga was a violation of company policy, as the companies competed with Albemarle. Albemarle

then filed suit against Mr. Bauer, alleging unfair trade practices because he divulged or intended to

divulge its trade secrets to competing companies. In addition, Mrs. Bauer was immediately

suspended because of the investigation into her husband’s wrongdoing.

       Mrs. Bauer was fired on February 21, 1995, after Albemarle determined that she knew of her


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        Dr. Beverly Bauer and Dr. Dennis Bauer, her husband, are both research chemists, having
Ph.D. degrees. To distinguish between the two appropriately and economically, however, we refer
to them as Mr. and Mrs. Bauer rather than as doctors or by first names.

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husband’s outside activities but failed to disclose this information, a violation of the conflict of

interest and confidentiality agreements she signed with Albemarle. Albemarle also suspected that

Mrs. Bauer was directly involved with Catherx and Sarat oga. These suspicions were heightened

when Albemarle discovered that Mrs. Bauer had downloaded information onto her computer about

one of the drugs it manufactured that was also of interest to Catherx.

         At the time of her termination, Mrs. Bauer was forty-five years old. Because Mrs. Bauer was

older than forty, she was within the class of individuals protected by the ADEA. 29 U.S.C. § 631(a).

During Albemarle’s suit against her husband, Mrs. Bauer attempted to negotiate a settlement with

Albemarle because of her discharge. When settlement efforts failed, Mrs. Bauer lodged a complaint

with the Equal Employment Opportunity Commission based on age and gender discrimination before

filing this suit.

         Albemarle objected to many of Mrs. Bauer’s discovery requests. Albemarle’s refusal to

comply prompted a motion to compel which was granted, in part, by a magistrate. While the

magistrate ruled that Mrs. Bauer was not entitled to discover statistical evidence related to the 1993

RIF, he directed Albemarle to provide certain information, including specific facts of Mrs. Bauer’s

wrongdoing. Albemarle responded to part of the discovery request but sought clarification regarding

portions of the magistrate’s order. Albemarle also filed a motion for summary judgment which the

district court granted. At the time summary judgment was granted, discovery was still ongoing.

                                        Standard of Review

         This court reviews a district court’s grant of summary judgment de novo, applying the same

standard as the district court. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995).

Summary judgment is proper when there is no genuine issue of material fact and the movant is


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entitled to judgment as a matter of law. Questions of fact are viewed in the light most favorable to

the nonmovant while questions of law are reviewed de novo. Id.

                                         General Principles

       Title VII prohibits an employer from failing or refusing to hire or discharge an individual

“because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). The ADEA proscribes similar treatment on the basis of age. 29 U.S.C. § 623(a)(1). The

same evidentiary procedure for allocating burdens of production and proof applies to discrimination

claims under both statutes. Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir. 1995) (per curiam).

Initially, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). To establish this prima

facie case under Title VII, the plaintiff must prove that she is a member of a protected class, she was

qualified for the position that she held, she was discharged, and after her discharge was replaced with

a person who is not a member of the protected class. Meinecke, 66 F.3d at 83 (citation omitted).

When the employer does not plan to replace the discharged plaintiff, the fourth element is “that after

[the] discharge others who were not members of the protected class remained in similar positions.”

Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). The first three elements of a prima facie case of

age discrimination under the AEDA and gender discrimination under Title VII are identical.

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). For the fourth element in an age

discrimination case, the plaintiff must show that “[s]he was either i) replaced by someone outside the

protected class, ii) replaced by someone younger, or iii) otherwise discharged because of [her] age.”

Id. The third alternative of this last element applies in circumstances where the plaintiff is not

replaced. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 150 (5th Cir. 1995), cert. denied,


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516 U.S. 1047 (1996).

       Establishing a prima facie case creates a presumption that the employer unlawfully

discriminated against the employee. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 525, 113 S.Ct.

2742, 125 L.Ed.2d 407 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254,

101 S. Ct. 1089, 67 L.Ed.2d 207 (1981); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir.

1996) (en banc). This presumption places on the defendant the burden of producing evidence that

the challenged employment action was taken for a legitimate, nondiscriminatory reason. Hicks, 509

U.S. at 507, 113 S. Ct. 2742; Burdine, 450 U.S. at 254, 101 S. Ct. 1089; Rhodes, 75 F.3d at 992-93.

The defendant must clearly set forth, through the introduction of admissible evidence, reasons for its

actions which, “if believed by the trier of fact,” would support a finding that unlawful discrimination

was not the cause of the employment action. Hicks, 509 U.S. at 507, 113 S. Ct. 2742; Burdine, 450

U.S. at 254-55, 101 S. Ct. 1089; Rhodes, 75 F.3d at 993.

       If the defendant succeeds in carrying its burden of production, the presumption, having

fulfilled its role of forcing the defendant to come forward with some response, simply drops out of

the picture, and the trier of fact proceeds to decide the ultimate question of whether the plaintiff has

proved that the defendant intentionally discriminated against her. Hicks, 509 U.S. at 511, 113 S. Ct.

2742; Burdine, 450 U.S. at 253, 101 S. Ct. 1089; Rhodes, 75 F.3d at 993. The plaintiff now must

have “‘the full and fair opportunity to demonstrate,’ through presentati on of [her] own case and

through cross-examination of the defendant’s witnesses, ‘that the proffered reason was not the true

reason for the employment decision’”, and that unlawful discrimination was. Hicks, 509 U.S. at 507-

08, 113 S. Ct. 2742 (quoting Burdine, 450 U.S. at 256, 101 S. Ct. 1089); see Rhodes, 75 F.3d at

993.


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                                             Discussion

       Because the facts underlying Mrs. Bauer’s ADEA and Title VII claims are the same and the

two claims involve similar evidentiary burdens, these claims will be addressed together. Meinecke,

66 F.3d at 83. Only a minimal showing is necessary to meet this burden. Nichols v. Loral Vought

Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996). At the time of her discharge, Mrs. Bauer was a

member of two protected classes (she was over forty years of age and female) and she was adversely

affected by Albemarle’s decision. We see no error in the district court’s decision that Mrs. Bauer had

established her prima facie cases.

       The next issue is whether Albemarle presented a legitimate non-discriminatory reason for

discharging Mrs. Bauer. During its investigation of Mr. Bauer, Albemarle discovered that Mrs. Bauer

was aware of her husband’s involvement with Catherx and Saratoga, two companies which competed

with Albemarle. For example, Mrs. Bauer was present at two lunch meetings when the activities of

Catherx were discussed, so she understood the nature of Catherx’s business. She also knew that

funds from the joint checking account she shared with Mr. Bauer helped finance Catherx. Mrs. Bauer

downloaded data on her computer dealing with a drug manufactured by Albemarle that was of

interest to Catherx. Although she provided a job related reason for having this information, the fact

that it was on her computer supported Albemarle’s reasonable belief that Mrs. Bauer knew about and

was involved in Catherx’s business activities.

       Finally, Mrs. Bauer knew that her husband and several Albemarle employees were involved

in ventures which created a conflict of interest with their Albemarle jobs. Despite Mrs. Bauer’s

knowledge of her husband’s involvement with Catherx and Saratoga, she never shared this

information with Albemarle. She signed a conflict of interest agreement stating that neither she nor


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any member of her immediate family had an interest in a company competing with Albemarle. This

evidence supported Albemarle’s reasonable belief that Mrs. Bauer had been disloyal to the company,

and, if believed by the trier of fact, would support a finding that unlawful discrimination was not the

cause of her termination.

        Mrs. Bauer argues that Albemarle had no reasonable basis to believe that she was disloyal,

despite the actions of her husband. She asserts that neither Catherx nor Saratoga competed with

Albemarle so there was no conflict of interest. However, Albemarle’s belief that they were actual or

potential competitors does not have to be proven to be correct in order for Mrs. Bauer’s involvement

with Carthex and Saratoga to be a legitimate, non-discriminatory reason for self-protective measures,

so long as the belief is reasonable, not arbitrary, and not a likely pretext for unlawful discrimination.

See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (citing Little v. Republic

Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). Likewise, Albemarle’s belief that Mrs. Bauer was either

actually or potentially a disloyal employee capable of harming the employer economically was not

unreasonable under the circumstances and constituted a legitimate non-discriminatory reason for her

discharge. Mrs. Bauer’s knowledge of and possible involvement in her husband’s outside business

interests conflicting with his employer’s interests were sufficient, if believed by the trier of fact, to

“support a finding that unlawful discrimination was not the cause of the employment action.” Hicks,

509 U.S. at 507, 113 S. Ct. 2742.

        Given that Albemarle met its burden of showing a legitimate non-discriminatory reason for

its employment decision, Mrs. Bauer must prove that Albemarle’s stated reason was pretextual and

that the real reason for her discharge was either her gender or her age. “Evidence that the proffered

reason is unworthy of credence must be enough to support a reasonable inference that the proffered


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reason is false; a mere shadow of doubt is insufficient.” E.E.O.C. v. Louisiana Office of Community

Services, 47 F.3d 1438, 1443-44 (5th Cir. 1995). This court has consistently held that an employee’s

“subjective belief of discrimination” alone is not sufficient to warrant judicial relief. Id. at 1448. In

the present case, we conclude that there is not an adequate evidentiary basis from which a reasonable

trier of fact could find or infer that Albemarle’s stated rat ionale for its employment action was

pretextual.

        Mrs. Bauer introduced evidence that, she contends, shows she was treated differently from

a similarly situated Albemarle employee. Pat Stahly, an Albemarle employee, and Mr. Bauer were

both involved in Catherx. Pat’s wife, Barbara Stahly, was also employed by Albemarle. When

Albemarle discharged Mr. Stahly for lying, Mrs. Stahly received a severance package from the

company and was allowed to seek o ther employment rather than being discharged. Mrs. Bauer

argues that Albemarle’s actions were discriminatory because she was not offered a severance

package. However, to demonstrate gender discrimination, Mrs. Bauer must show that she was

treated differently from male employees because of her gender under similar circumstances, not

merely that she was treated differently from other female employees. Mayberry, 55 F.3d at 1090.

Thus, Mrs. Bauer failed to prove that Albemarle’s explanations were pretextual.

        We now address the timing of the motion for summary judgment and Mrs. Bauer’s age

discrimination claim. Mrs. Bauer states that she could not adequately defend the summary judgment

motion because Albemarle did not comply with her discovery requests, in particular her request for

statistical information concerning the 1993 reduction in force. This court recently held that a

summary judgment motion can be decided without any discovery. United States v. Bloom, 112 F.3d

200, 205 n.17 (5th Cir. 1997). “‘To obtain a continuance of a motion for summary judgment in order


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to obtain further discovery, a party must indicate to the court by some statement, preferably in writing

(but not necessarily in the form of an affidavit), why he needs additional discovery and how the

additional discovery will create a genuine issue of material fact.’” Stults v. Conoco, Inc., 76 F.3d 651,

657-58 (6th Cir. 1996) (quoting Krimm v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.

1993)).

          In support of her age discrimination claim, Mrs. Bauer alleges that Albemarle has a history

of terminating employees in the protected age category during reductions in force. Her brief makes

conclusory allegations that this claim would be bolstered by additional discovery of statistical

information. See Union City Barge Line v. Union Carbide, 823 F.2d 129, 136-37 (5th Cir. 1987)

(vague assertions of the need for additional discovery are as unavailing as vague responses on the

merits). But she does not adequately demonstrate to the court how that discovery would create a fact

issue. As in Reese v. Anderson, 926 F.2d 494, 499 n.5 (5th Cir. 1991), the employer was entitled to

summary judgment despite the plaintiff’s claims of prematurity because the plaintiff “failed to explain

what discovery she did have, why it was inadequate, and what she expected to learn from furt er
                                                                                           h

discovery.”

          Albemarle was not required to provide statistical information about the 1993 RIF because the

magistrate judge concluded that such evidence was irrelevant to Mrs. Bauer’s termination a year and

four months later. The district court ruled that, assuming Mrs. Bauer could prove all that she sought

to discover, her claim could not survive summary judgment. See Crum v. American Airlines, Inc.,

946 F.2d 423, 429 (5th Cir. 1991) (summary judgment not premature where discovery sought could

not have aided plaintiff). Statistical evidence can be utilized by an individual disparate treatment

plaintiff to help rebut the employer’s non-discriminatory explanation. Hollander v. American


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Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990). However, more than statistics are usually necessary

to rebut an employer’s strong showing of a legitimate, non-discriminatory reason for discharging a

particular employee, such as the employee’s disloyalty in giving aid and comfort to the employer’s

competitors. See Walther v. Lone Star Gas Co., 977 F.2d 161, 162 (5th Cir. 1992) (per curiam). In

the present case, the statistical evidence did not have substantial probative value, as Mrs. Bauer was

discharged more than a year after the 1993 RIF.

                                          CONCLUSION

       For the foregoing reasons, the district court’s judgment is AFFIRMED.




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