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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-6043
_____________________________________
James E. Hamilton, et. al,
Plaintiffs-Appellants,
VERSUS
The Grocers Supply Co., Inc.
Defendant-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________________________________
(March 1, 1993)
ON PETITION FOR REHEARING
(Oninion December 15, 1992, 5 Cir., 1992, F.2d )
Before REAVLEY, HIGGINBOTHAM, AND DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
The Hamilton plaintiffs request a rehearing on our ruling in
Britt v. Grocers Supply Co., Inc., 978 F.2d 1441 (5th Cir. 1992).
They contend that we erred in holding that the directed verdict on
their ADEA claims should be sustained because they failed to show
pretext. We agree, however, rehearing is denied because plaintiffs
failed to establish a prima facie case.
The district court held that the plaintiffs failed to
establish a prima facie case, and dismissed the case after the
close of plaintiff's case-in-chief. Our decision affirmed the
district court's decision, however, we affirmed on the grounds that
the plaintiffs failed to show that the defendant's articulated

nondiscriminatory reasons for refusing to rehire plaintiffs
constituted pretexts. The Hamilton plaintiffs argue that McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), requires a plaintiff
in its case-in-chief to establish only a prima facie case. They
contend that McDonnell Douglas establishes a three step burden
shifting process in which the plaintiffs are required to show
pretext only after the defendants have articulated a non-
discriminatory reason for failing to rehire. McDonnell Douglas
Corp., 411 U.S. at 802. Although plaintiffs argued before this
Court that they had proven pretext, we agree that procedurally they
are correct. We do not agree, however, that they are entitled to
a rehearing.
The standard of review for a directed verdict is the same as
that for review of a summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986). We apply the same standard of review as
did the district court. Waltman v. International Paper Co., 875
F.2d 468, 474 (5th Cir. 1989). "If the facts and inferences point
so strongly and overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a contrary
verdict, granting of the motions [for directed verdict and for
JNOV] is proper." Boeing Company v. Shipman, 411 F.2d 365, 374
(5th Cir. 1969)(en banc); Little v. Republic Refining Co., 924 F.2d
93, 95 (5th Cir. 1991).
To establish a violation under the ADEA, the plaintiffs must
show some adverse employment action by the defendant. See Young v.
Houston, 906 F.2d 177 (5th Cir. 1990); Bienkowski v. American
2

Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988). When the plaintiff
has not introduced direct evidence of discrimination, he may still
shift the burden of proof to the defendant by establishing a prima
facie case as required by McDonnel Douglas. Young, 906 F.2d at
180. To make out a prima facie case, the plaintiff must prove the
necessary elements "by a preponderance of the evidence." Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The elements of a prima facie case may be somewhat flexible in an
ADEA case according to the facts in issue. McCorstin v. United
States Steel Corp., 621 F.2d 749 (5th Cir. 1980). See Moore v.
Sears, Roebuck & Co., 464 F.Supp. 357, 361-63 (N.D.Ga. 1979). The
district court articulated a three part test that the plaintiffs
had to meet in order to establish a prima facie case. They had to
show (1) the company refused to consider recall applications of
protected employees over forty years of age; (2) applications for
recall were accepted from workers under forty years of age; (3) the
protected workers were qualified for the jobs. The plaintiffs
argue that this test is inappropriate under the facts in this case.
We disagree.
The plaintiffs voluntarily went on strike, forcing the company
to hire replacements. The replacements were eventually made
permanent, and few of the striking workers were ever recalled. The
plaintiffs claimed adverse treatment based on two of Grocers'
employment decisions: (1) the decision to permanently replace the
striking workers and (2) the failure to recall the strikers as
positions became available. They contend that these decisions were
3

motivated by age discrimination because the replacement workers as
a group were younger than the striking workers as a group.1 Relying
on Metz v. Transit Mix, 828 F.2d 1202 (7th Cir. 1987), the
plaintiffs argue that it is unlawful under the ADEA to eliminate
older employees as a group based on higher salaries so as to
replace them with generally younger workers, who would work for
less. In addition to being factually distinguishable from Metz,
this Court has not adopted the Metz line of reasoning, and we
decline to do so in this case. See Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991) (termination
due to higher pay is not relevant to age discrimination but
seniority); Williams v. General Motors Corp, 656 F.2d 120, 130 (5th
Cir. 1981), cert. denied, 455 U.S. 943 (1982) (seniority and age
discrimination are unrelated).
This Court has held that the plaintiff "must show that [the
employer] gave preferential treatment to a younger employee under
'nearly identical' circumstances." Little, 924 F.2d at 97. We
agree with the district court that comparing the recall of older
strikers with the recall of younger strikers provides more
meaningful evidence of differential treatment than does a
comparison of the strikers with their replacements. Additionally,
age differences between an established workforce and a newly hired
one are only natural. "[I]n a normal case, absent any
discriminatory intent, discharged employees will more often than
1 Members of the plaintiffs' group include workers under 40
years old.
4

not be replaced by those younger than they, for older employees are
constantly moving out of the labor market, while younger ones move
in." Laugesen v. Anaconda Company, 510 F.2d 307, 313 n. 4 (6th
Cir. 1975). Consequently, we conclude that the test articulated by
the district court was appropriate under the facts of this case.
The plaintiffs failed to meet the test set out by the district
court. They failed to establish that the company refused to
consider recall applications of protected employees over age forty.
The record indicates that of the 34 strikers who were returned to
work prior to the end of the strike, 20 were age forty or over.
All of the remaining strikers, regardless of age, were permanently
replaced. Pursuant to the recall agreement, the defendant made 120
recall offers. The average age of the strikers to whom these
offers were made was 49.4 years old. Of the 120 offers, 104 went
to persons age 40 or over, while only 16 went to persons under age
40. In light of the lack of evidence showing that younger strikers
were more favorably treated than older strikers, we conclude that
the plaintiffs have not established a prima facie case.
For the foregoing reasons, the request for rehearing is
DENIED.
5