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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.,

, 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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