                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

               _____________________________________

                            No. 91-6043
               _____________________________________

                       James E. Hamilton, et. al,

                                                   Plaintiffs-Appellants,

                                 VERSUS

                      The Grocers Supply Co., Inc.

                                                     Defendant-Appellee.

     ______________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
     ______________________________________________________
                         (March 1, 1993)

                       ON PETITION FOR REHEARING

     (Oninion December 15, 1992, 5 Cir., 1992,             F.2d    )

Before REAVLEY, HIGGINBOTHAM, AND DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

     The Hamilton plaintiffs request a rehearing on our ruling in

Britt v. Grocers Supply Co., Inc., 978 F.2d 1441 (5th Cir. 1992).

They contend that we erred in holding that the directed verdict on

their ADEA claims should be sustained because they failed to show

pretext. We agree, however, rehearing is denied because plaintiffs

failed to establish a prima facie case.

     The   district    court   held   that   the   plaintiffs   failed   to

establish a prima facie case, and dismissed the case after the

close of plaintiff's case-in-chief.          Our decision affirmed the

district court's decision, however, we affirmed on the grounds that

the plaintiffs failed to show that the defendant's articulated
nondiscriminatory     reasons     for       refusing     to   rehire   plaintiffs

constituted pretexts. The Hamilton plaintiffs argue that McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), requires a plaintiff

in its case-in-chief to establish only a prima facie case.                      They

contend that McDonnell Douglas establishes a three step burden

shifting process in which the plaintiffs are required to show

pretext   only    after   the    defendants       have     articulated      a   non-

discriminatory reason for failing to rehire.                  McDonnell Douglas

Corp., 411 U.S. at 802.         Although plaintiffs argued before this

Court that they had proven pretext, we agree that procedurally they

are correct.     We do not agree, however, that they are entitled to

a rehearing.

     The standard of review for a directed verdict is the same as

that for review of a summary judgment.            Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986).       We apply the same standard of review as

did the district court.         Waltman v. International Paper Co., 875

F.2d 468, 474 (5th Cir. 1989).          "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, granting of the motions [for directed verdict and for

JNOV] is proper."     Boeing Company v. Shipman, 411 F.2d 365, 374

(5th Cir. 1969)(en banc); Little v. Republic Refining Co., 924 F.2d

93, 95 (5th Cir. 1991).

     To establish a violation under the ADEA, the plaintiffs must

show some adverse employment action by the defendant. See Young v.

Houston, 906 F.2d 177 (5th Cir. 1990); Bienkowski v. American


                                        2
Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988).    When the plaintiff

has not introduced direct evidence of discrimination, he may still

shift the burden of proof to the defendant by establishing a prima

facie case as required by McDonnel Douglas.      Young, 906 F.2d at

180.   To make out a prima facie case, the plaintiff must prove the

necessary elements "by a preponderance of the evidence."       Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The elements of a prima facie case may be somewhat flexible in an

ADEA case according to the facts in issue.       McCorstin v. United

States Steel Corp., 621 F.2d 749 (5th Cir. 1980).       See Moore v.

Sears, Roebuck & Co., 464 F.Supp. 357, 361-63 (N.D.Ga. 1979).    The

district court articulated a three part test that the plaintiffs

had to meet in order to establish a prima facie case.    They had to

show (1) the company refused to consider recall applications of

protected employees over forty years of age; (2) applications for

recall were accepted from workers under forty years of age; (3) the

protected workers were qualified for the jobs.        The plaintiffs

argue that this test is inappropriate under the facts in this case.

We disagree.

       The plaintiffs voluntarily went on strike, forcing the company

to hire replacements.       The replacements were eventually made

permanent, and few of the striking workers were ever recalled.   The

plaintiffs claimed adverse treatment based on two of Grocers'

employment decisions: (1) the decision to permanently replace the

striking workers and (2) the failure to recall the strikers as

positions became available. They contend that these decisions were


                                  3
motivated by age discrimination because the replacement workers as

a group were younger than the striking workers as a group.1 Relying

on Metz v. Transit Mix, 828 F.2d 1202 (7th Cir. 1987), the

plaintiffs argue that it is unlawful under the ADEA to eliminate

older employees as a group based on higher salaries so as to

replace them with generally younger workers, who would work for

less.        In addition to being factually distinguishable from Metz,

this Court has not adopted the Metz line of reasoning, and we

decline       to   do    so   in    this    case.         See   Amburgey    v.   Corhart

Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991) (termination

due to higher pay is not relevant to age discrimination but

seniority); Williams v. General Motors Corp, 656 F.2d 120, 130 (5th

Cir. 1981), cert. denied, 455 U.S. 943 (1982) (seniority and age

discrimination are unrelated).

            This Court has held that the plaintiff "must show that [the

employer] gave preferential treatment to a younger employee under

'nearly identical' circumstances."                      Little, 924 F.2d at 97.          We

agree with the district court that comparing the recall of older

strikers       with     the   recall   of    younger        strikers   provides     more

meaningful         evidence    of    differential          treatment   than      does    a

comparison of the strikers with their replacements.                       Additionally,

age differences between an established workforce and a newly hired

one     are     only    natural.       "[I]n        a    normal   case,    absent       any

discriminatory intent, discharged employees will more often than


        1
        Members of the plaintiffs' group include workers under 40
years old.

                                             4
not be replaced by those younger than they, for older employees are

constantly moving out of the labor market, while younger ones move

in."     Laugesen v. Anaconda Company, 510 F.2d 307, 313 n. 4 (6th

Cir. 1975). Consequently, we conclude that the test articulated by

the district court was appropriate under the facts of this case.

       The plaintiffs failed to meet the test set out by the district

court.     They failed to establish that the company refused to

consider recall applications of protected employees over age forty.

The record indicates that of the 34 strikers who were returned to

work prior to the end of the strike, 20 were age forty or over.

All of the remaining strikers, regardless of age, were permanently

replaced. Pursuant to the recall agreement, the defendant made 120

recall offers.     The average age of the strikers to whom these

offers were made was 49.4 years old.     Of the 120 offers, 104 went

to persons age 40 or over, while only 16 went to persons under age

40. In light of the lack of evidence showing that younger strikers

were more favorably treated than older strikers, we conclude that

the plaintiffs have not established a prima facie case.

       For the foregoing reasons, the request for rehearing is

DENIED.




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