UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-10415 Summary Calendar _______________________

EARLE DAVID CRIM,

Plaintiff-Appellant,

versus

RICKI TIGERT HELFER, Chairman of the Federal Deposit Insurance Corporation,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (3:93-CV-2268-T) _________________________________________________________________

January 16, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Earle David Crim filed suit under the Age Discrimination

in Employment Act (the "ADEA"),

et seq., against

Ricki Tigert Helfer, in her capacity as chairman of the Federal

Deposit Insurance Corporation (collectively with Helfer, the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. "FDIC").1 The district court granted summary judgment to the FDIC,

and Crim appealed. We affirm the district court's judgment.

I. BACKGROUND

In November 1989, Crim was hired, at the age of 59, as an

internal review specialist at the FDIC's Addison, Texas office. In

December 1991, at the age of 61, he was promoted to a section

chief. He contends he was told at that time he would not be

promoted to "Grade 13" until he had satisfactorily served as a

section chief for six months.

Before the six month period expired, the FDIC merged its

Addison and Dallas offices. As a result, the number of section

chiefs was reduced from twelve to eight. Crim was not one of the

eight retained. He was then sixty-two years old. At the time of

the consolidation, the ages of the section chiefs retained were 37,

37, 35, 33, 37, 35, 32, and 40. The ages of those not retained,

including Crim, were 62, 38, 41, and 34.

Crim filed suit, seeking punitive damages, against the

FDIC. He contended it violated the ADEA and Title VII,

, by not retaining him as a section chief in the merged

office and by failing to promote him to Grade 13. The district

court granted summary judgment on all claims, dismissing them with

prejudice.

1 Crim's complaint initially named as defendant Andrew Hove, the then- acting chairman of the FDIC. Helfer subsequently became chairman, and Crim filed, and was granted, a motion to substitute parties.

2 Crim appeals the district court's grant of summary

judgment on his ADEA claims.2 He contends the district court erred

in finding he did not present sufficient evidence from which a

reasonable fact-finder could infer the FDIC discriminated against

him because of his age in not retaining him as a section chief and

in failing to promote him to Grade 13.

II. DISCUSSION

A. Standard of Review

We review the district court's grant of summary judgment

de novo, applying the same standards as the district court.

Bodenheimer v. PPG Ind., Inc.,

(5th Cir. 1993).

Federal Rule of Civil Procedure 56 provides that summary judgment

is appropriate when "there is no genuine issue as to any material

fact." "A dispute about a material fact is 'genuine' if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party." Bodenheimer,

(citations

omitted). "In making its determination, the court must draw all

justifiable inferences in favor of the nonmoving party."

(citations omitted).

B. Background on the ADEA

The ADEA makes it unlawful to discriminate against an

individual over 40 years of age with respect to "compensation,

terms, conditions, or privileges of employment because of such

individual's age."

(a). Given that the instant

2 Crim does not appeal the district court's grant of summary judgment on his Title VII and punitive damages claims.

3 case relies on circumstantial evidence to prove discrimination, we

analyze it according to the three-part test enunciated in McDonnell

Douglas Corp. v. Green,

,

,

(1973). Initially, the employee must set forth a prima facie case

demonstrating that he or she 1) was within the protected class of

the ADEA; 2) was adversely affected by the employment decision; 3)

was qualified for the position at the time of the adverse decision;

and 4) was replaced by someone younger or was otherwise discharged

because of his or her age. Bodenheimer,

. The

establishment of the prima facie case creates a rebuttable

presumption that the employer unlawfully discriminated against the

employee.

The employer may then rebut the presumption by

articulating a legitimate, non-discriminatory business reason for

its action.

If the employer articulates such a reason, the

burden reverts back to the employee. He or she must then prove the

employer's reason was only a pretext for discrimination.

To prevail ultimately, the employee must present

sufficient evidence from which a reasonable fact-finder could infer

that the employer's articulated reason was false and that

discrimination was the true reason for the adverse employment

decision. St. Mary's Honor Center v. Hicks, __ U.S. __,

,

(1993). The employee must present

"proof that age motivated the employer's action, otherwise the law

has been converted from one preventing discrimination because of

age to ensuring dismissals only for 'just cause' to all people over

4 40." Bienkowski v. American Airlines, Inc.,

, 1508

n.6 (5th Cir. 1988).

Accordingly, at the summary judgment stage, "we must

assess whether [the employee] tendered factual evidence that would

lead a jury to reasonably conclude that [the employer's] reasons

are a pretext for age discrimination." Bodenheimer,

.

We conclude Crim has not presented such evidence, and thus affirm

the district court's grant of summary judgment.

C. Crim's ADEA Claims

1. Failure to Retain as a Section Chief

Crim first contends the FDIC discriminated against him

because of his age by not retaining him as a section chief in the

merged Addison-Dallas office.3 In support, he presents the

following evidence:

1. Seven of the eight section chiefs retained in the merged office were under forty years old. Two of the four section chiefs not retained were over 40. This disparity was noted by a counselor from the FDIC's Equal Opportunity Office (the "EEO").

2. The FDIC employee making the retention decision, Victor Robert, incorrectly stated on his spreadsheet comparing the qualifications of the candidates for retention as section chief, that Crim's supervisor had rated him "poor" rather than "satisfactory."

3. Robert did not give the spreadsheet to Ester Vana during the EEO investigation.

3 As did the district court, we assume Crim has established a prima facie case. The FDIC articulated a non-discriminatory reason for its action.

5 This evidence is insufficient to establish a fact issue

that the FDIC's reasons for not retaining Crim as a section chief

were pretexts for age discrimination.

First, Crim's statistical evidence does not establish an

age discrimination claim because it only analyzes twelve employees.

Statistical evidence on small groups of employees cannot be used to

establish an employer's discriminatory intent.4 Haskell v. Kaman

Corp.,

(2d Cir. 1984) (collecting cases).

Similarly, that an EEO counselor noted the "statistics" does not

demonstrate the FDIC discriminated against Crim because of his age.

Second, Crim's allegation that Robert's spreadsheet did

not accurately reflect his supervisor's evaluation of him does not

establish a pretext for age discrimination. Even if Robert's

information was incorrect, Crim cannot demonstrate the FDIC's

reasons for not retaining him were false. Robert relied on

fourteen other factors in deciding which section chiefs to retain.

Further, this evidence does not establish Crim's age was a

determinative factor or even an influence in the FDIC's not

retaining him. Indeed, Robert's initial consolidation plan did

retain Crim as a section chief. However, the regional FDIC office

rejected the plan and ordered further staff cuts.

4 Further, while the Fifth Circuit has recognized that gross statistical disparities may be used to establish discriminatory intent, Walter v. Lone Star Gas Co.,

(5th Cir. 1992), Crim's statistics do not demonstrate a gross disparity. Eighty-three percent --ten out of twelve-- of the employees considered for retention as section chiefs were under age forty. Taking this fact into account, that the FDIC retained eighty-seven percent --seven out of eight-- of the under-forty employees does not demonstrate a gross disparity.

6 Third, Crim alleges that, because Robert did not provide

the spreadsheet to the investigating EEO employee when initially

requested, Robert fabricated the spreadsheet "after the fact" to

justify his action. This speculation is insufficient to bar

summary judgment. Travelers Ins. Co. v. Liljeberg Enterprises,

Inc.,

(5th Cir. 1993). Robert has given unrebutted

sworn testimony that he prepared the spreadsheet before making his

final decision.

Fourth, the FDIC presented much uncontradicted evidence

supporting its non-discriminatory reasons for not retaining Crim.

Robert based his selections of which section chiefs to retain upon,

inter alia, each candidate's experience in property management,

technical expertise, leadership skills, aggressive management

style, interaction with senior management, organizational skills,

supervisory skills, and track record in a downsizing environment.

One of Crim's supervisors, Kevie Beard, testified that Crim did not

have experience in property management, did not have an aggressive

management style, had inadequate leadership and management skills,

and generally lacked the specialized knowledge and technical

expertise for the available section chief positions. Overall,

Beard gave Crim's qualifications the lowest rating. Robert also

testified that Crim had inadequate leadership and management

skills.

Therefore, the district court properly granted summary

judgment to the FDIC on Crim's failure-to-be-retained claim.

7 2. Failure to Promote to Grade 13

Crim's contention that the FDIC discriminated against him

due to his age in failing to promote him to Grade 13 is also

without merit. In support, Crim presents evidence that his

supervisors told him he would at some time be considered for the

promotion, that his promotion would not be prohibited by the FDIC's

hiring freeze, and that one of Crim's supervisors, Jerry

Bumbalough, thought he was qualified for the promotion.

This evidence does not support a cause of action for age

discrimination. To the extent Crim's failure-to-promote claim is

based on his failure-to-retain claim, we have rejected his claim

for failing to be retained as a section chief. We thus reject his

claim for failing to be promoted. To the extent his failure-to-

promote claim is independent of his first claim, we find that Crim

cannot establish a prima facie case of discrimination. See Ford v.

General Motors Corp.,

, 118 n.2 (5th Cir. 1981)

(setting forth requirements for prima facie case for failure-to-

promote discrimination).5 He cannot demonstrate he was qualified

for the promotion. Following the Addison-Dallas offices merger,

Crim was no longer a section chief. He thus did not hold a

position with the potential for a Grade 13 promotion. Further,

5 To establish a prima facie case for failure-to-promote discrimination, the employee must show: (1) that he was a member of the protected age group; (2) that he was not promoted to a given position; (3) that another person, generally outside the protected age category, was placed in the position at issue; and (4) that [the employee] was qualified to fill the position sought. Ford,

n.2.

8 even assuming Crim could establish a prima facie case, his evidence

in no way indicates his age was a determinative factor in his not

being promoted.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

9