                     IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT

                 _______________________________________

                               No. 98-60334
                 _______________________________________


ROGER REEVES,

                                                          Plaintiff-Appellee,

                                        versus

SANDERSON PLUMBING PRODUCTS, INC.,

                                                          Defendant-Appellant.

_________________________________________________________________

              Appeal from the United States District Court
                for the Northern District of Mississippi

_________________________________________________________________


Before HIGGINBOTHAM, JONES and WIENER, Circuit Judges.

Per Curiam:

     In this age discrimination case, Defendant-Appellant Sanderson

Plumbing Products, Inc. (“Sanderson”) appeals the district court’s

order denying Sanderson’s post-verdict motion for judgment as a

matter   of    law     (“JML”),   and    granting   Plaintiff-Appellee     Roger

Reeves’s motion for front pay.              After reviewing the record, we

conclude      that    Reeves    did   not   prove   a   violation   of   the   Age

Discrimination in Employment Act (“ADEA”) by a preponderance of the

evidence.      Hence, we reverse the district court’s order and render

judgment in favor of Sanderson.
                                      I

                         FACTS AND PROCEEDINGS

     Fifty-seven year old Reeves was employed for 40 years by

Sanderson —— a company involved in the manufacture of toilet seats

and covers.      At the time of his discharge, Reeves worked in a

department of the company known as the Hinge Room.               The Hinge Room

ran a regular line which was supervised by Reeves, and a special

line which was supervised by 35 year old Joe Oswalt.                Forty-five

year old Russell Caldwell was the manager of the department and he

supervised both Reeves and Oswalt.

     At all times relevant to this case, a union represented

Sanderson’s     production   and   maintenance      employees.       The   union

contract   included    general     work    rules,    part   of    which    dealt

specifically with attendance. Pursuant to these rules, an employee

who was absent from work in excess of five percent of his scheduled

hours in a month, or who was late twice in a month, was subject to

disciplinary action.

     As part of his essential duties as a supervisor, Reeves was

required   to   keep   daily,    weekly,   and   monthly    records       of   the

attendance and tardiness of employees under his control.                   These

records were reviewed by Reeves for accuracy before he passed them

on to Caldwell, who then sent them on to data processing.

     In the fall of 1993, Sanderson’s Department of Quality Control

—— under the direction of Powe Chesnut —— conducted a review of the


                                      2
operating procedures in the Hinge Room.        According to Sanderson,

the study revealed productivity problems on Reeves’s regular line,

stemming from a lax assembly line operation.        As a result, Reeves

was   placed   on   a   90-day   probation   for   unsatisfactory    work

performance.

      Nearly three years later, in the summer of 1995, Caldwell

informed Chesnut —— who by this time had become Director of

Manufacturing —— that the Hinge Room was again having difficulty

meeting its production requirements due to pervasive absenteeism

and tardiness.      Because the Hinge Room records did not reflect

employee attendance     problems,   however,   Chesnut   requested   that

Lucille Reeves, then-Manager of Quality Control, conduct an audit

of the department’s time sheets.         This investigation revealed

numerous timekeeping errors and misrepresentations on the part of

Caldwell, Reeves, and Oswalt. Dana Jester, Vice President of Human

Resources, conducted an independent review of the records, and

confirmed Quality Control’s findings.        Armed with these results,

Chesnut, Jester, and Vice President of Operations Tom Whitaker,

recommended to Company President Sandra Sanderson1 that Caldwell

and Reeves be dismissed.2    Ms. Sanderson —— who was 52 years old at


      1
      The record is uncontradicted that Ms. Sanderson had married
Chesnut in December 1988.
      2
      Chesnut testified at trial that, had Oswalt not voluntarily
terminated his employment several months earlier, Oswalt would have
been subject to dismissal along with his co-workers, Reeves and
Caldwell.

                                    3
the time —— heeded this advice, firing both Caldwell and Reeves in

October 1995.        Thereafter, Sanderson filled Reeves’s position, on

three successive occasions, with men in their thirties.

     In June 1996, Reeves filed suit, claiming that Sanderson

terminated him because of his age, in violation of the ADEA.

Reeves based his claim on two age-related statements allegedly made

by Chesnut several months before Reeves’s dismissal, namely (1)

that Reeves was so old that he “must have come over on the

Mayflower,” and (2) that he was “too damn old to do the job.”

     At the conclusion of the trial, the jury returned a verdict in

favor of Reeves, awarding him $35,000 and finding that Sanderson

discriminated        willfully   on    the   basis   of   age   in    its   adverse

employment action.           After the verdict, Sanderson renewed its

previous motion for JML, and moved, in the alternative, for a new

trial.       At the same time, Reeves filed a motion seeking front pay.

The district court denied Sanderson’s motions, and entered judgment

in favor of Reeves in the amount $70,000 —— adding $35,000 in

liquidated damages to the jury’s compensatory damages in that

amount based on the jury’s determination of willfulness.3                        In

addition,      the   court   awarded    Reeves   $28,490.80      in    front   pay,

representing two years of lost income.               Sanderson timely filed a

notice of appeal.


         3
        See 29 U.S.C. § 626(b)(1990)(providing that “liquidated
damages shall be payable only in cases of willful violations of
this Act.”).

                                         4
                                 II

                              ANALYSIS

A.   Standard of Review

     “A motion for judgment as a matter of law . . . in an action

tried by jury is a challenge to the legal sufficiency of the

evidence supporting the jury’s verdict.”4   We review the denial of

such motions de novo, applying the same standard as the district

court.5   A JML is appropriate if the “facts and inferences point so

strongly and overwhelmingly in favor of one party that a reasonable

jury could not have concluded” as the jury did.6      Applying this

standard to the instant case, the district court’s judgment should

be reversed only if “there is no legally sufficient evidentiary

basis for a reasonable jury to find” that Sanderson discharged

Reeves because of his age.7

B.   The ADEA

     The ADEA makes it “unlawful for an employer . . . to discharge

any individual . . . because of such individual’s age.”8         To

establish a violation of the ADEA, a plaintiff must prove, by a



     4
      Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997).
     5
      Nichols v. Lewis Grocer, 138 F.3d 563, 565 (5th Cir. 1998).
     6
      Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 148 (5th
Cir. 1995).
     7
      FED. R. CIV. PROC. 50(a)(1).
     8
      29 U.S.C. § 623(a)(1)(1990).

                                     5
preponderance of the evidence, intentional discrimination on the

part of his employer.9         As direct evidence of discrimination is

rare, plaintiffs may rely on indirect evidence and reasonable

inferences to establish an ADEA claim under the McDonnell Douglas

burden-shifting analysis.10

     Under this analysis, a plaintiff must first present a prima

facie case, thereby establishing a rebuttable presumption of age

discrimination.11    If the plaintiff meets this burden, the employer

must then rebut the presumption by articulating a legitimate,

nondiscriminatory reason for the challenged employment action.12

If the employer presents such evidence, then the presumption of

discrimination     fades,     and   the   plaintiff     must     prove   that   the

employer’s      articulated     reason        is   a   pretext    for    unlawful

discrimination.13

     To establish pretext, a plaintiff must prove not only that the



     9
      Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir.
1997).
     10
          Id.
          11
        Id.   There are four elements to a prima facie case of
discriminatory discharge under the ADEA, including proof that the
plaintiff was (1) discharged; (2) qualified for the position; (3)
within the protected class at the time of the discharge; and (4)
either i) replaced by someone outside the protected class, ii)
replaced by someone in the protected class but younger than the
plaintiff, or iii) otherwise discharged because of his age.
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
     12
          Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996).
     13
          Price, 119 F.3d at 337.

                                          6
employer’s stated reason for its employment decision was false, but

also that age discrimination “had a determinative influence on” the

employer’s decision-making process.14               Age-related comments may

serve as sufficient evidence of discrimination if the remarks are

(1) proximate in time to the termination; (2) made by an individual

with authority over the challenged employment decision; and (3)

related to that employment decision.15              Mere “stray remarks” ——

i.e., comments which are “vague and remote in time” —— however, are

insufficient to establish discrimination.16

     1.         Sufficiency of the Evidence

     On appeal, Sanderson does not challenge the sufficiency of the

evidence        supporting   Reeves’s       prima     facie   case     of   age

discrimination.17       Rather, Sanderson argues that it articulated a

legitimate,        nondiscriminatory    explanation     for   firing   Reeves:

Reeves’s shoddy record keeping.             Because Reeves failed to offer

evidence sufficient to prove both that this reason is untrue and

that age is what really triggered Reeves’s discharge, argues


     14
          Id.
     15
          Brown, 82 F.3d at 655.
     16
          Id.; Price, 119 F.3d at 337.
     17
      Indeed, when, as here, a case has already been tried on the
merits, whether the plaintiff properly made out a prima facie case
is no longer relevant.      United States Postal Service Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983).        Instead, the
important inquiry is whether the plaintiff has “produced sufficient
evidence for a jury to find that discrimination has occurred.”
Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992).

                                        7
Sanderson, it is entitled to judgment as a matter of law.                         We

agree.

      At     trial,    Chesnut   testified   that       he    became     aware   of

timekeeping problems in the Hinge Room after Caldwell —— the

department manager —— complained of inadequate production resulting

from absenteeism.       This complaint prompted an investigation which

uncovered numerous errors in the department’s attendance records.

Because of specific misrepresentations and errors made by Reeves,

argues Sanderson, employees under Reeves’s control were being paid

for time they did not work, and were not being disciplined for

their habitual absenteeism and tardiness. Reeves testified that he

was familiar with the company’s attendance policy, as well as his

timekeeping responsibilities as a supervisor under that policy. In

light of this admission, argues Sanderson, Reeves’s failure to keep

accurate     records    in    accordance   with    the       policy    amounts    to

unsatisfactory        work    performance,      which        is   a    legitimate,

nondiscriminatory basis for dismissal.

      Reeves attempts to cast suspicion on Sanderson’s proffered

explanation by first asserting that Sanderson’s explanation changed

between the time of Reeves’s discharge and trial.                      When he was

fired, claims Reeves, he was told that he had caused a specific

employee to be paid for time she had not actually worked.                         In

contrast, Reeves argues, Sanderson defended its employment decision

at   trial    by   claiming   that   Reeves’s     timekeeping         mistakes   had

resulted in the overpayment of numerous employees.                Although proof

                                       8
that an employer lied to its employee about its reasons for

discharge does, under some circumstances, raise a “red flag” of

pretext,18 the inconsistency noted by Reeves in this case can hardly

be considered mendacious.      Sanderson has, at all times, supported

its decision to fire Reeves with the charge that Reeves’s work

performance was unsatisfactory.        That Sanderson may have explained

this charge at the time of dismissal with only one instance of

inaccurate record keeping, but buttressed its defense by adducing

evidence of other similar infractions at trial smacks more of

competent trial preparation than telling a lie.

     Reeves    goes   on,   however,       to   challenge   the   veracity   of

Sanderson’s allegation that he engaged in inaccurate record keeping

at all. At trial, Reeves testified that he was always very careful

to ensure that his employees arrived at their work stations on

time.    In addition, he claimed that any employee who was permitted

to clock in early or stay late —— and thereby receive additional

pay —— had extra work assignments to perform.          According to Reeves,

if any record keeping errors were made, they were the result of

Caldwell’s inattentiveness and not his own.                 Moreover, Reeves

points out, at trial Chesnut was unable to testify as to the cost

to the company, if any, of Reeves’s alleged record falsifications.

Based on this evidence, claims Reeves, a reasonable jury could have

found that Sanderson’s explanation for its employment decision was


    18
        Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996).

                                       9
pretextual.

     On this point, Reeves very well may be correct.                         Even so,

whether Sanderson was forthright in its explanation for firing

Reeves is not dispositive of a finding of liability under the ADEA.

We must, as an essential final step, determine whether Reeves

presented sufficient evidence that his age motivated Sanderson’s

employment decision.

     In   an    attempt    to     satisfy       this    burden    at    trial,    Reeves

testified      that     Chesnut     ——   while         serving     as    Director     of

Manufacturing —— made the above-quoted age-related comments just

months before Reeves was terminated.                   As Chesnut was one of three

people who recommended his termination to Ms. Sanderson, argues

Reeves, Chesnut’s comments should be taken as sound evidence of the

company’s underlying discriminatory motives.

     Reeves also expressed the belief that he was treated less

favorably than Sanderson’s younger employees.                    This belief, Reeves

now claims, is confirmed by Oswalt’s testimony that Chesnut treated

Reeves like a child.       As further evidence of Sanderson’s disparate

treatment, Reeves points to his 1993 probation, and notes that the

30-something Oswalt was not put on probation despite a similarly

lagging   production       level    on   the      Hinge     Room’s      special   line.

Likewise,      argues   Reeves,     when    Quality        Control      initiated   its

investigation of his timekeeping records in 1995, none of the

supervisors from other departments were singled out for such

scrutiny.

                                           10
     Considering all of the evidence in a light most favorable to

Reeves,    we   nevertheless   conclude   that   there   was   insufficient

evidence for a jury to find that Sanderson discharged Reeves

because of his age.       Despite the potentially damning nature of

Chesnut’s age-related comments, it is clear that these comments

were not made in the direct context of Reeves’s termination.             In

addition, Chesnut was just one of three individuals who recommended

to Ms. Sanderson that Reeves be terminated, and there is no

evidence to suggest that any of the other decision makers were

motivated by age.     In fact, the record shows that at least two of

the decision makers were themselves over the age of 50 —— Ms.

Sanderson at 52, and Jester at 56.        Furthermore, the fact remains

that, as a result of the 1995 investigation, each of the three

Hinge Room supervisors was accused of inaccurate record keeping,

including not only Reeves and Caldwell, but 35 year old Oswalt as

well.     Finally, there is evidence that, at the time Reeves was

dismissed, 20 of the company’s management positions were filled by

people over the age of 50, including several employees in their

late 60's.

     Based on our plenary review, we find that Reeves did not

introduce sufficient evidence of age discrimination to support the

jury’s finding of liability under the ADEA.          For this reason, we

reverse and render judgment in favor of Sanderson.

REVERSED AND RENDERED.



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