UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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Summary Calendar No. 00-30549

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Jane F. Smolensky, Plaintiff-Appellant

versus

Grover C. McDaniel and General Electric Company, Defendants-Appellees

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Appeal from the United States District Court for the Eastern District of Louisiana (99-CV-1849) _________________________________________________________________

January 5, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Jane F. Smolensky appeals from the district court’s grant

of summary judgment and other rulings in favor of Defendants-

Appellees Grover C. McDaniel and General Electric Company.

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. Smolensky’s action is rooted in GE’s decision not to hire her to

fill either of two positions in the Metairie, Louisiana office of

its General Electric Medical Systems Division (“GEMS”). Finding

reversible error only in the grant of summary judgment to GE, we

affirm in part and reverse and remand in part.

BACKGROUND

Smolensky is a former GE employee who worked for three

different divisions of the company (but never for GEMS) over the

course of 28 years, but was laid off in 1996 due to lack of work.

In May, 1998, Smolensky, then age 51, applied for a position as a

“Sales Secretary” at GE’s GEMS unit. Smolensky was interviewed by

Grover McDaniel for this position, but was ultimately not awarded

the job. GE asserts that Smolensky was not hired due to a

restructuring in the Metairie office, which eliminated the Sales

Secretary position. Additionally, McDaniel was not impressed with

Smolensky’s “level of enthusiasm and teamwork spirit.” In the wake

of the office reorganization, the duties of the Sales Secretary

were divided between a new “Parts Analyst” and the “Regional Sales

Administrator.” A thirty year old male was hired for Parts Analyst

position.

In July 1998 the Regional Sales Administrator job opened

up, and Smolensky was again interviewed. Smolensky apparently did

not impress her interviewers, but this point became moot because,

before a new Regional Sales Administrator could be hired, the GEMS

2 home office imposed a hiring freeze. Because of the hiring freeze,

the Regional Sales Administrator position was filled by a part-time

contract employee (a former employee of GEMS already familiar with

its work) retained through an outside staffing firm.

Frustrated by her inability to secure a position with GE,

Smolensky filed this lawsuit against GE and McDaniel, the GEMS

Senior Operations Specialist who had initially interviewed her. To

avoid federal court, Smolensky brought claims only under the

Louisiana Age Discrimination in Employment Act and the constitution

of Louisiana, and a breach of contract action. GE removed

Smolensky’s case to federal district court on both diversity and

federal question (ERISA preemption) grounds.1

After discovery, the parties filed cross motions for

summary judgment. After GE had filed its Motion for Summary

Judgment, Smolensky sought leave to amend her complaint, proposing

41 new paragraphs and several new allegations. The district court

granted GE’s motion for summary judgment, denied both of

Smolensky’s motions and entered judgment with prejudice against

her.

Smolensky now appeals, asserting that the district court

improperly denied her motion to remand, erroneously dismissed

1 At the same time that it denied Smolensky’s motion to remand, the district court dismissed her claims against McDaniel, concluding that he had been fraudulently joined in the action to defeat diversity and that there was no possibility that Smolensky could recover against him. Smolensky appealed the district court’s order denying remand and dismissing all claims against McDaniel, but on December 6, 1999 this court dismissed Smolensky’s appeal.

3 Grover McDaniel, abused its discretion in denying the motion to

amend her complaint, and improperly granted summary judgment to GE.

Having reviewed the parties’ briefs, the district court’s

opinion, and pertinent sections of the record, we summarily reject

certain of her contentions. First, this Court agrees with the

district court that federal jurisdiction was sustainable at least

on diversity grounds, and thus removal was proper. Further,

because “there is no possibility that Plaintiff can recover from

Defendant McDaniel” under the Louisiana age discrimination law or

state constitution, we affirm the dismissal of appellant’s claims

against McDaniel based on the district court’s reasoning and

analysis. The district court’s granting of summary judgment to GE

on Smolensky’s state constitutional and contract2 claims was also

correct. Finally, the district court did not abuse its discretion

in denying Smolensky’s late-filed motion to amend her complaint.

Nance v. Gulf Oil Corp.,

(5th Cir. 1987). The court

did not err in deciding that it raised new factual contentions on

the eve of trial inexcusably, after GE had filed its summary

judgment motion. Parish v. Frazier,

(5th Cir.

1999).3

2 Even if the 1998 handbook applied to Smolensky, it specifically rejects that its terms create a contract with employees. 3 Cf. Union Planters National Leasing v. Woods,

(5th Cir. 1982) (district court did not abuse its discretion in denying leave to amend more than a year after suit had been filed and after grant of summary judgment in favor of opposing party); Daves, 661 F.2d at 1024 (no abuse of discretion where district court refused leave to amend on eve of trial and proposed amendment came more than 19 months after commencement of suit); Addington, 650

4 However, a closer examination of the grant of summary

judgment to GE on Smolensky’s Louisiana law age discrimination

claims is warranted in light of the Supreme Court’s intervening

decision in Reeves v. Sanderson Plumbing, ___ U.S. ____,

(2000). The district court acknowledged that Smolensky has

established her prima facie case for age discrimination. What is

at issue are GE’s stated non-discriminatory reasons for its adverse

employment decision regarding Smolensky. See McDonnell Douglas

Corp. v. Green,

,

(1973); Haas v. Advo Systems,

(5th Cir. 1999).

The district court applied this court’s pre-Reeves

standard to Smolensky’s age discrimination claims and concluded

that Smolensky had not presented sufficient evidence of actual

discrimination to withstand summary judgment. The district court

concluded that “while [Plaintiff-Appellant’s] evidence may support

an inference that the Defendant’s reasons are untrue, it is not the

type of ‘substantial’ evidence that supports a reasonable inference

of discriminatory intent” (emphasis in original).

In the time since the district court entered this order,

the Supreme Court decided Reeves and clarified the standard for

what a discrimination plaintiff must show to rebut a defendant’s

F.2d at 667 (district court was within the bounds of its discretion when it denied party leave to amend more than a year after the institution of the suit and where parties had already terminated discovery).

5 proffered non-discriminatory justification. The Supreme Court

announced that:

Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . . In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. . . . Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves,

. The Supreme Court went on to explain

that “because a prima facie case and sufficient evidence to reject

the employer’s explanation may permit a finding of liability, the

Court of Appeals erred in proceeding from the premise that a

plaintiff must always introduce additional, independent evidence of

discrimination.”

. To survive summary judgment under

the Reeves standard, the plaintiff must introduce evidence

sufficient to allow a reasonable fact-finder to infer that

discrimination did occur. Evidence that the employer’s legitimate,

non-discriminatory reason for its hiring decision is false may

permit or contribute to such an inference.

However, evidence that the employer’s proffered

justification is untrue does not guarantee the availability of an

inference of discrimination. In interpreting Reeves, this Court

has noted that “there will be instances where, although the

plaintiff has established a prima facie case and set forth

sufficient evidence to reject the defendant’s explanation, no

6 rational fact finder could conclude that the action was

discriminatory.” Vadie v. Mississippi State University,

, 374 n.23 (5th Cir. 2000). Such an instance would occur where

“the plaintiff created only a weak issue of fact as to whether the

employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had

occurred.”

(citing to Reeves,

).

Under the somewhat more relaxed Reeves framework,

Smolensky has barely adduced sufficient evidence to create a

genuine issue of material fact as to GE’s alleged discriminatory

motive in not hiring her as a Parts Analyst. Smolensky concedes

that there is no direct evidence of GE’s discriminatory intent.

The probative circumstantial evidence introduced by the Appellant,

though weak, might allow a reasonable juror to infer age

discrimination. In reaching this post-Reeves conclusion, however,

we by no means forecast whether, after a trial, the evidence will

in fact be sufficient to sustain a verdict for Smolensky.

We initially point out what is not probative. Smolensky

relies heavily on the circumstantial argument that she was not

hired by GEMS because, as a former GE employee, she would have been

entitled to a vast amount of vacation time and sick leave, along

with assorted early retirement options and pension benefits.

Assuming, as we must for summary judgment purposes, that this

argument is true and that GEMS refused to hire Smolensky in order

to prevent her from receiving her accumulated GE benefits, this

7 still provides no evidence of age discrimination. The Supreme

Court has held that:

“an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service . . . This is true even if the motivating factor is correlated with age, as pension status typically is.”

Hazen Paper Co. v. Biggins,

,

(1993).

Age and years of service to an employer are separate and

analytically distinct categories.

The law does not protect

against discrimination on the basis of costly perks earned through

years of service. See Armendariz v. Pinkerton Tobacco Co.,

(5th Cir. 1995) (“ADEA does not provide a cause of action

for interference with retirement benefits that are based on

seniority, without evidence the decision was motivated by age”).

So Smolensky’s circumstantial evidence that GE refused to hire her

based on her pension and leave status is not evidence of age

discrimination at all.

The other critical piece of circumstantial evidence on

which Smolensky relies is the “Schaefer Letter,” the position

letter sent from GE to the federal Equal Opportunity Employment

Commission (“EEOC”) at the outset of the EEOC’s investigation and

prior to this litigation. Smolensky now seeks to use this document

to demonstrate that GE’s proffered non-discriminatory reasons for

not hiring Smolensky were false, thereby allowing the jury to draw

an inference of age discrimination. See Reeves,

2109. GE admits that factual errors were made in the Schaefer

letter, i.e. that Smolensky was applying for a “receptionist

position” (in fact she applied for a more responsible sales

secretary post), and that Smolensky withdrew her application when

GE told her this position and the Regional Sales Manager position

were part-time and/or contract-agency positions (Smolensky denies

these assertions). GE states that the first error was

“immaterial,” but it doesn’t explain how the second error, crucial

to its side of the case, was made. This letter appears to create

discrepancies in GE’s proffered explanations for not hiring

Smolensky. Post-Reeves, a jury issue as to GE’s motivation exists.

For these reasons, the judgment of the district court is

AFFIRMED in Part, and REVERSED and REMANDED in Part.

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