                   United States Court of Appeals,

                               Fifth Circuit.

                               No. 95-50540.

     Ben ONTIVEROS, Sr., Plaintiff-Appellee/Cross-Appellant,

                                     v.

    ASARCO INCORPORATED, Defendant-Appellant/Cross-Appellee.

                               May 29, 1996.

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

Before WISDOM, EMILIO M. GARZA and PARKER, Circuit Judges.

     ROBERT M. PARKER, Circuit Judge:

                         I. PROCEEDINGS BELOW

     Plaintiff brought a Title VII claim of discrimination on the

basis of national origin. The jury found for Plaintiff and awarded

$200,000 in lost future earnings and $100,000 in punitive damages.

Following   an   evidentiary    hearing,   the   district   court   awarded

Plaintiff $6816.83 in backpay.

     Defendant moved for judgment as a matter of law, a new trial,

and remittitur of damages. The district court granted judgment for

Defendant on the punitive damages claim but denied all remaining

points.     Defendant appeals (1) the denial of the motion for

judgment as a matter of law and the motion for new trial on the

underlying liability question;       (2) the denial of the motion for

new trial and remittitur on the backpay award;        and (3) the denial

of the motions for judgment as a matter of law, new trial, and

remittitur on the frontpay award.         Plaintiff appeals the granting

of Defendant's motion for judgment as a matter of law on the

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punitive damages issue.

                                II. ANALYSIS

       Plaintiff alleges that he was denied a promotion to day pay

supervisor,    a    temporary   position     that   he    had   held   on   prior

occasions, because of his national origin.               Defendant claims that

Plaintiff failed to prove at trial, as a matter of law, that he was

the   victim   of   unlawful    discrimination.          In   this   context,   a

plaintiff can avoid judgment as a matter of law if the evidence

taken as a whole (1) creates a fact question as to whether each of

the employer's stated reasons were what actually motivated the

employer, and (2) creates a reasonable inference that national

origin was a determinative factor in the actions of which the

plaintiff complains.      Rhodes v. Guiberson Oil Tools, 75 F.3d 989,

994 (5th Cir.1996) (en banc).

       In the present case, Defendant's stated reason for its

decision not to offer the position to Plaintiff was that another

employee was better qualified.             For the position of day pay

supervisor, leadership skills, problem-solving abilities, people

skills, and    the    ability   to   learn   quickly      determined    who   was

qualified.     Seniority and experience were not factors in the

selection process.       Defendant asserted that Plaintiff had not

exhibited effective leadership skills and therefore was not as

qualified as the person selected for the position.

      In attempting to show that Defendant's stated reason was

pretextual, Plaintiff points to the testimony of three employees

who testified that Plaintiff has superior experience and technical


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skills than the individual selected for the position.              However,

because these qualities were not criteria in the selection process,

this testimony is not evidence of pretext.

     Next Plaintiff disputes the veracity of Defendant's assessment

of his leadership skills. Plaintiff contends that Defendant failed

to point to any one specific incident indicating poor performance.

Additionally, Defendant never brought these alleged deficiencies to

Plaintiff's attention or ever criticized Plaintiff for his work.

Furthermore, Plaintiff's alleged shortcomings were never documented

by anyone.

     To counter these arguments, Defendant points to the testimony

of three supervisors that Plaintiff's performance was deficient.

Furthermore, one of Defendant's employees testified that Defendant

does not evaluate or counsel its employees at Plaintiff's level.

     Last, Plaintiff points to alleged inconsistencies in testimony

of Defendant's employees to negate Defendant's articulated reason

for its decision not to promote Plaintiff.        While one supervisor

testified that the reason Defendant stopped using Plaintiff as a

day pay supervisor in 1991 was Plaintiff's poor performance,

another supervisor cited both poor performance and cost-cutting

measures as reasons and a third supervisor cited only budgetary

constraints.      However,   the   issue   in   this   case   is    whether

Defendant's decision not to select Plaintiff as day pay supervisor

in 1993 was unlawful.   What Defendant did in 1991 is of little, if

any, relevance.

      This court should overturn a jury verdict only if it is not


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supported by substantial evidence. Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir.1969) (en banc).             The court is to consider all

the evidence, giving all reasonable inferences to the nonmovant.

Id.   In this case, giving all reasonable inferences to Plaintiff

and being careful not to substitute our judgment for that of the

jury, we assume arguendo that the evidence suffices to establish a

fact question as to pretext.

      Nevertheless, in addition to a finding of pretext, Plaintiff

must create a reasonable inference that national origin was a

determinative factor in the actions of which he complains. Rhodes,

75 F.3d at 994.      We considered this issue in great depth en banc

only recently:

      The   evidence  necessary   to   support  an   inference   of
      discrimination will vary from case to case. A jury may be
      able to infer discriminatory intent in an appropriate case
      from substantial evidence that the employer's proffered
      reasons are false. The evidence may, for example, strongly
      indicate that the employer has introduced fabricated
      justifications for an employee's discharge, and not otherwise
      suggest a credible nondiscriminatory explanation.          By
      contrast, if the evidence put forth by the plaintiff to
      establish the prima facie case and to rebut the employer's
      reasons is not substantial, a jury cannot reasonably infer
      discriminatory intent.

Id.

      In short, "[i]n tandem with a prima facie case, the evidence

allowing rejection of the employer's proffered reasons will often,

perhaps   usually,    permit    a    finding    of   discrimination   without

additional evidence."     Id.       By implication, Rhodes allows for the

extremely rare situation where a finding of pretext will not permit

a reasonable inference of discrimination.                This case is that

situation.    There may barely be enough evidence to sustain a

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finding of pretext.   However, there is insufficient evidence to

support a reasonable inference of discrimination.

     The denial of Defendant's motion for judgment as a matter of

law as to liability is therefore REVERSED.   Accordingly, we do not

reach the remaining issues on appeal.

     EMILIO M. GARZA, Circuit Judge, specially concurring:

     I agree that our opinion in Rhodes v. Guiberson Oil Tools, 75

F.3d 989 (5th Cir.1996) (en banc), "allows for the extremely rare

situation where a finding of pretext will not permit a reasonable

inference of discrimination."       Maj. op. at 3564.   However, I

persist in the following observation:

     I fail to understand how the Court can logically conclude that
     a jury—that is "permitted" to reach a specific inference
     through the focused Title VII framework at work in [St. Mary's
     Honor Ctr. v.] Hicks [, 509 U.S. 502, ----, 113 S.Ct. 2742,
     2749, 125 L.Ed.2d 407 (1993) ]—could at the same time be
     acting outside the broad umbrella of "reasonableness"
     established by Boeing."

Rhodes, 75 F.3d at 998 n. 2 (Garza, J., specially concurring).

Therefore, I concur in the judgment only.




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