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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, 738 F.2d
1126, 1131-32 (11th Cir. 1984) (Wisdom, J.), citing Taylor v.
Philips Indus., 593 F.2d 783 (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, 713 F.2d
1127, 1135 (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, 411 U.S. 792, 93 S.
Ct. 1817 (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, 112 S. Ct. 466, 474 (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.
4