IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-4662

MELVIN WALTHER, Plaintiff-Appellee,

versus

LONE STAR GAS COMPANY, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion__January 30, 1992_, 5 Cir., 1992, ________F.2d ____)

( October 29, 1992 )

POLITZ, Chief Judge and HIGGINBOTHAM, Circuit Judges, and KAZEN,* District Judge.

PER CURIAM:

The petition for rehearing is DENIED and no member of this

panel nor judge in regular active service on the court having

requested that the court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local Rule 35) the suggestion for

rehearing en banc is DENIED. The petition quarrels with our

reasons for failing to reverse this judgment because of a jury

instruction that statistics alone may establish that the reason an

* Judge George P. Kazen, U.S. District Judge, Southern District of Texas, sitting by designation. employer discharged an employee was because of his age. This Title

VII age discrimination case is analogous to a Title VII disparate

treatment case in which the employee bears the burden of proof that

the employer intentionally discriminated against him for an

impermissible reason. Carmichael v. Birmingham Saw Works,

(11th Cir. 1984) (Wisdom, J.), citing Taylor v.

Philips Indus.,

(7th Cir. 1979). We have recognized

that gross statistical disparities resulting from a reduction in

force or similar evidence may be probative of discriminatory

intent, motive or purpose. Plemer v. Parsons-Gilbane,

(5th Cir. 1983). Such statistics might in an unusual

case provide adequate circumstantial evidence that an individual

employee was discharged as part of a larger pattern of layoffs

targeting older employees. This is not to say that such statistics

are enough to rebut a valid, nondiscriminatory reason for

discharging a particular employee. Generally, they are not,

because under the McDonnell Douglas2 Title VII framework, a judge

and now perhaps, a jury would have to consider not just the

employee's prima facie case, but also the employer's articulated

nondiscriminatory reason for its conduct with respect to the

employee. The employee would then be attempting to prove the

employer's reason was a pretext; proof of pretext, hence of

discriminatory intent, by statistics alone would be a challenging

endeavor.

2 McDonnell Douglas Corp. v. Green,

,

(1973).

2 But the instruction in this case said only that statistics may

be enough to establish that age was the reason for Lone Star Gas's

decision to discharge Walther. We cannot say that this abstract

proposition of law is incorrect on the facts of this case. We need

not engage in a hypothetical debate as to whether and when

statistics alone could suffice to carry an individual employee's

burden of proof. The fact is that Walther did not rely on

statistics alone to prove his case. He had other evidence, the

sufficiency of which Lone Star has not challenged. The jury was

instructed to consider all of the evidence in reaching its

decision. It was also instructed that its inquiry should focus on

the motive of Lone Star Gas to discharge Walther. Under these

circumstances, we will not assume that the jury disregarded the

other evidence in the record, and relied solely on statistics in

reaching its conclusion. Jurors are well equipped to analyze the

evidence and reach a decision despite the availability of a

factually unsupported theory in the jury instructions. Our

discussion of Griffin v. United States,

(1991),

borrowed this principle, and nothing more.

In affirming the judgment entered on this jury verdict, we do

not suggest that other courts should submit similar instructions on

statistics in the future. It is ordinarily inadvisable to give the

instruction, both because it is the unusual case in which

statistics alone can support a finding of intentional

discrimination and because there is no need to isolate one part of

the evidence and tell the jury that it may rely on that part alone

3 to the exclusion of the rest. But on the facts of this case, we

see no need for Walther to retry his lawsuit when the challenged

instruction was not technically incorrect as an abstract matter,

when the instructions as a whole were adequate, and when the

evidence was sufficient to support the jury's verdict.

PETITION DENIED.

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