                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                No. 99-60445
                              Summary Calendar


PATRICIA M. JOHNSON,

                                                     Plaintiff-Appellant,

versus

EARTH GRAINS BAKING COMPANY, doing
business as COLONIAL BAKING COMPANY
OF MISSISSIPPI, INCORPORATED,

                                                      Defendant-Appellee.

                         --------------------
             Appeal from the United States District Court
               for the Southern District of Mississippi
                              (86-CV-71)
                         --------------------

                              December 1, 1999

Before POLITZ, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     In   this   appeal   from   the    district   court’s   grant    of   her

employer’s     motion   for   summary    judgment,   dismissing      her   sex

discrimination case under Title VII, Plaintiff-Appellant Patricia

M. Johnson insists that her summary judgment evidence is sufficient

to establish a prima facie case —— or at least to create a genuine

dispute of material fact —— that sexual discrimination produced an

adverse employment action. She contends that when her position was

eliminated in a reduction in force (RIF), an open position was

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
given to a less qualified fellow employee who was male rather than

to her, solely because she was female.               She also asserts that her

employer’s proffered reason for filling the position with her male

co-worker was pretextual.1         In our de novo review of the district

court’s grant of summary judgment, we reach the same conclusion as

did that court and therefore affirm.

       Both Johnson and her employer have advised us that there is no

“need for oral argument” in this case, and we agree:                  The issues

are straightforward and clearly presented by the summary judgment

record on appeal, and the law is well-established.                        We have,

therefore,        carefully   reviewed   the    record     on    appeal   and   the

appellate briefs submitted by able counsel and, like the district

court before us, have applied the applicable law to the material

facts, about which we discern no genuine disputes.                        Clearly,

Johnson was a member of the protected class (female), was adversely

affected by her employer’s decision to eliminate her position in

the course of a RIF, and was qualified for the alternative position

that       her   employer   ultimately   gave   to    a   male   co-worker.      To

establish a prima facie case for such a RIF situation, however, it

was necessary for Johnson to prove, or at least create a genuine

issue of material fact, that the alternative position was given to

her co-worker rather than to her because of her sex.                This she has

failed to do.       We do not question Johnson’s genuine belief that the


       1
        In addition to her claim for sexual discrimination in
employment, Johnson had also advanced an equal pay claim;
however, Johnson does not appeal the district court’s dismissal
of her equal pay claim.

                                         2
only reason the job was given to her fellow employee, who had

slightly less seniority than she, is the fact that she is female,

and that the reasons verbalized by her employer regarding her co-

worker’s specific experience and familiarity with the requirements

and territory of the new job were a pretext to obfuscate sexual

discrimination. The evidence submitted by Johnson, however, simply

does not support her subjective belief or rise to the level

necessary to demonstrate the existence of a factual dispute that is

material and genuine.

      On the contrary, the evidence demonstrates that Johnson and

her   male   counterpart         were    essentially           equal    in    seniority,

experience, ability, performance history, and overall qualification

for the open position.           Although Johnson expresses reasons for her

belief    that    she    is    better    qualified,       the       objective    evidence

regarding    the       male   employee    to   whom      the    position        was   given

demonstrates essential equipoise in qualifications. And the law is

well settled that, absent any affirmative indicia of unlawful

discrimination,         an    employer   is    entitled        to    choose     among   job

candidates       of     approximately      equal        qualifications.               Stated

differently, unless the employee or job candidate is clearly better

qualified, i.e., unless differences in qualification are so obvious

that no impartial arbiter “could have chosen the candidate selected

over the plaintiff for the job in question,”2 courts will not

second    guess       employers’   decisions       of    this       nature.      This    is


      2
        Deines v. Texas Dept. of Protective & Regulatory Servs.,
164 F.3d 277, 281 (5th Cir. 1999).

                                           3
particularly      true   when,   as    in       the   instant    case,     the    non-

discriminatory     reasons   for      the      decision,   as    advanced    by   the

employer,   are    not   refuted      or       contradicted     by   the   objective

evidence.

     For the reasons set forth in greater detail in the Memorandum

Opinion of the district court, filed on May 28, 1999, we conclude

that the court’s ruling was correct.                  We therefore affirm the

summary judgment appealed.

AFFIRMED.




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