IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50958 Summary Calendar

ROBERT R. SCHWARTZ,

Plaintiff-Appellant,

versus

ANN VENEMAN, Secretary, United States Department of Agriculture,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas (USDC No. W-99-CV-209) _______________________________________________________ March 23, 2001

Before REAVLEY, JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Robert Schwartz appeals the district court’s entry of

summary judgment in favor of the United States Department of Agriculture

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (USDA). Schwartz sued under the Age Discrimination in Employment Act

(ADEA),

. Schwartz contends that he was passed over for

promotion to Senior Auditor because of his age. We agree with the order of the

district court and affirm.

Once a plaintiff has made out a prima facie case of age discrimination, the

burden of production shifts to the defendant to show a nondiscriminatory reason for

the contested action. See Reeves v. Sanderson Plumbing Prod. Inc.,

(2000). The plaintiff then must show that the reason given was a

pretext. See

The plaintiff’s prima facie case, combined with sufficient evidence

of pretext, may permit the trier of fact to conclude that the employer discriminated

unlawfully. See

. Whether judgment as a matter of law is appropriate

depends on the circumstances of the particular case. See

Here, the USDA contends it decided not to promote Schwartz because he had

limited auditing experience and less seniority at his position than some of the other

candidates, including Pat Lachowsky, who was eventually selected. Regional

Inspector General (RIG) Jack Leavy, who made the decision to promote

Lachowsky, relied on Schwartz’s immediate supervisor Wayne Bynum to assess

Schwartz’s candidacy. Bynum commented that Schwartz was a “good man” but not

ready for the promotion. This assessment was based in part on Schwartz’s lack of

2 attention to detail in a particular assignment. Nothing in the record suggests that

Bynum’s assessment was in bad faith. Furthermore, Schwartz does not dispute that

he had less seniority than the candidates who were considered for the position, or

that seniority was a relevant, if not dispositive, factor in the decision. We find

Schwartz’s evidence insufficient to create a fact dispute as to pretext.

Schwartz also tries to prove age discrimination by showing that USDA had a

pattern or practice of discriminating on the basis of age. Schwartz relies on a chart

he produced showing that from the time he started at the USDA until he was passed

over for promotion, there were seven promotions to the position he sought, and all

of them favored younger candidates. The USDA responds by pointing out that in

the seventeen decisions Leavy made while serving as RIG, he chose candidates over

forty ten times (and candidates over fifty three times.) We agree with the district

court that without evidence that the data he presents is statistically significant,

Schwartz cannot show a pattern or practice of discrimination.

AFFIRMED.

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