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United States Court of Appeals,
Fifth Circuit.
No. 93-3835.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant
Cross-Appellee,
v.
LOUISIANA OFFICE OF COMMUNITY SERVICES, et al., Defendants-
Appellees Cross-Appellants,
Regina C. Fisher, Plaintiff-Movant-Appellant.
March 23, 1995.
Appeals from the United States District Court for the Eastern
District of Louisiana.
Before DAVIS, BARKSDALE and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
The Equal Employment Opportunity Commission ("EEOC"), on
behalf of Regina Fisher, sued the Louisiana Department of Social
Services, Office of Community Services ("LOCS"), alleging that LOCS
violated the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621-34, when it twice failed to promote Ms. Fisher. After
the jury returned a verdict for the EEOC, the district court
granted LOCS' motion for judgment as a matter of law. Because we
agree with the district court that the evidence is insufficient to
support the jury's verdict, we affirm.
I.
Regina Fisher worked for LOCS in various capacities for over
twenty-eight years. From 1954-1960, she worked as a caseworker in
foster care. After doing family services work in Connecticut from
1961-1965, she returned to LOCS as a foster care supervisor. In
1

1970, Fisher became a supervisor in the Adoptions Petitions Unit,
which reviewed adoption paperwork to ensure compliance with legal
requirements. When that position was eliminated in August 1988,
she became a supervisor in the Administrative Review Unit, which
monitored child welfare cases to ensure that all necessary action
had been taken in compliance with Public Law 96:272. More
specifically, the law required that certain steps be taken at
certain intervals, such as a case review every six months, and the
Administrative Review personnel made sure the required steps were
taken. Fisher had no responsibility for the quality of the work
performed. Her unit simply verified that the requisite steps were
taken and documented for the record.
In 1989, when Fisher was sixty-four-years old, LOCS decided to
replace the Administrative Review Unit with a Quality Assurance
Unit. LOCS proposed that the Quality Assurance Unit assume the
functions of the Administrative Review Unit, but that it
additionally monitor the quality of child welfare services provided
throughout the region. In other words, the Quality Assurance Unit
assumed all the duties of the Administrative Review Unit (which
were essentially administrative) and additionally evaluated whether
a particular case plan best fit the needs of the child.
In this second capacity, Quality Assurance personnel would
monitor caseworkers in three "priority" programs--Family Services,
Case Management, and Child Protection Investigation ("CPI").
Family Services provides counseling and other services to families
needing assistance but whose problems do not require removal of the
2

child from the home. Case Management oversees all aspects of
foster care. CPI investigates complaints of neglect and abuse.
Caseworkers in each program work directly with children and their
families.
Due to the increased skill level required of Quality Assurance
Unit personnel, the Louisiana Department of Civil Service ("Civil
Service") determined that the Quality Assurance positions were
"new" positions, which had to be filled through a competitive
promotion process. It classified Quality Assurance caseworkers as
Social Services Specialists I ("Specialists") and supervisors as
Social Service Supervisors I ("Supervisors I").
LOCS began to fill the Specialist positions in June 1989.
During that time, Fisher remained in her former Administrative
Review position--classified as a Social Services Counselor I
("Counselor I")--even as those she supervised were being promoted to
Specialists. In December 1989, LOCS realized that under the Civil
Service rules a Counselor I cannot supervise a Specialist. To
comply with the rules, LOCS, in consultation with Civil Service,
retroactively placed Fisher on a temporary assignment from June 5,
1989 through December 17, 1989, as a Supervisor I.1
In November 1989, LOCS interviewed applicants for three
Supervisor I vacancies: one in Quality Assurance and two in Case
Management. To qualify, each eligible candidate had to take a
civil service exam. The nine applicants who received the top five
1The retroactive assignment occurred after Fisher was passed
over to be the Quality Assurance Unit Supervisor in November.
3

scores on the exam were then evaluated by a panel comprised of five
District Supervisors.2 Each panelist assigned a point value from
one to nine to each applicant based upon an "interview packet."
This consisted of the applicant's application form, a short
narrative written by the applicant describing the applicant's
knowledge of Child Protection and particular qualifications for the
job, a summary of the three references, and notes taken at the
interview. The panel then recommended the three applicants with
the highest composite scores to Rebecca Corbello, Regional Manager.
Ms. Corbello then approved and forwarded the recommendations to
Shirley Goodwin, Division Director of Child Welfare Field Services,
who made the final decision to promote the selectees.
The selectees were Donna Leavitt, age 52, Priscilla Brown, age
43, and Carol Mackey, age 38. Leavitt eventually filled the
Quality Assurance position, and Brown and Mackey filled the Case
Management positions. Fisher had the fourth highest score. After
she was not promoted, Fisher filed a charge with the EEOC alleging
age discrimination.
In March 1990, LOCS reconvened the panel to fill two
additional Supervisor I vacancies for CPI and Case Management, both
within Janice Briscoe's sub-region. The panel members were the
same, with the exception of Carolyn Kramer. The panel did not
2The panel members were James Bordelon, Carolyn Kramer, Joe
Putnam, Freida Neville and Diane Richards. All but Kramer were
supervisors within the sub-region managed by Janice Briscoe.
Kramer was in the sub-region managed by Danny Curtis. The
Quality Assurance position was in Curtis' sub-region, while the
other two positions were in Briscoe's sub-region.
4

reinterview the applicants who had been interviewed in November;
they relied on their November interview packets. The panel
recommended the four highest scoring applicants:3 Alvia Brown,
David Zumalt, Susan Hitzman and James Mento, all of whom were
younger than Fisher. The panel also indicated which position the
selectees should fill. This time Fisher ranked eighth on the list,
scoring lower than four applicants she had outscored in November.
Goodwin eventually selected Brown and Zumalt for Case Management
and CPI, respectively.
Fisher filed another charge with the EEOC, alleging that the
second promotion denial was because of age and in retaliation for
filing the first EEOC charge. Shortly thereafter the EEOC filed
this suit alleging age discrimination and retaliation. At trial,
LOCS contended that it had not promoted Fisher because the
selectees were more qualified for the positions. The jury rendered
a verdict for the EEOC, finding that both promotion denials were
age related and that the second denial was willful but not
retaliatory. LOCS reurged its previously filed motion for judgment
as a matter of law or, in the alternative, for a new trial. The
district court granted the motion for judgment as a matter of law,
holding that the evidence was insufficient to permit a finding that
the reason proffered by LOCS for not promoting Fisher was
pretextual. The district court was therefore persuaded that the
record evidence failed to show that LOCS' personnel decision not to
3The record reflects some confusion over the number of slots
available. It appears that at one point LOCS contemplated
filling four positions.
5

promote Fisher was because of her age. The EEOC and Fisher
separately appeal that judgment.
II.
As an initial matter, we address LOCS' motion to dismiss
Fisher's appeal. LOCS concedes the EEOC's right to appeal, but
contests Fisher's right to appeal separately since she was not a
party to the proceedings below. A person who is not a party to the
proceedings below generally cannot appeal the court's judgment.
See EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th
Cir.), cert. denied sub nom. Keith v. EEOC, 498 U.S. 815, 111 S.Ct.
55, 112 L.Ed.2d 31 (1990). However, courts have granted exceptions
where the non-parties actually participated in the proceedings
below, the equities weigh in favor of hearing the appeal, and the
non-parties have a personal stake in the outcome. See id; see
also Binker v. Commonwealth of Pa., 977 F.2d 738 (3d Cir.1992)
(allowing non-party employees to appeal approval of settlement
agreement negotiated by EEOC where employees were involved in the
negotiations and where settlement formula was not favorable to
employees); EEOC v. West La. Health Servs., Inc., 959 F.2d 1277
(5th Cir.1992) (allowing non-party appeal where EEOC had not
pursued appeal in its representative capacity).
An exception is not warranted in this case. Fisher dismissed
her private action when the EEOC filed suit. Neither Fisher nor
her attorney pled, intervened or otherwise participated in the
proceedings below. Nor does Fisher contend that her arguments
overlap or are in tension with the EEOC's arguments. Because we
6

conclude that the EEOC adequately represented Fisher below and
continues to do so on appeal, we dismiss Fisher's appeal.
III.
A.
We review the district court's grant of judgment as a matter
of law de novo. Accordingly, we can affirm only
[i]f 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....
On the other hand, if there is substantial evidence opposed to
the motions, that is, evidence of such quality and weight that
reasonable and fair minded men in the exercise of impartial
judgment might reach different conclusions, the motion should
be denied, and the case submitted to the jury. A mere
scintilla is insufficient to present a question for the jury.
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).
In this case, we must determine whether the record contains
evidence which could lead a reasonable trier of fact to conclude
that LOCS did not promote Fisher because of age. See Molnar v.
Ebasco Constructors, Inc., 986 F.2d 115, 117 (5th Cir.1993). In
doing so, we must view the evidence in the light most favorable to
and draw all inferences in favor of the EEOC. Boeing, 411 F.2d at
374.
B.
The ADEA makes it unlawful for employers "to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. § 623(a).
In the absence of direct proof of discrimination, the plaintiff in
an age discrimination case must follow the three-step
7

burden-shifting framework laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff first must
establish a prima facie case of discrimination. The burden then
shifts
to
the
employer
to
articulate a legitimate,
nondiscriminatory reason for its action. If the employer does so,
the plaintiff then bears the burden of proving that the articulated
reason is untrue and was given as a pretext for discrimination.
Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.1994).
"[An employer's] reason cannot be proved to be "a pretext for
discrimination' unless it is shown both that the reason was false,
and that discrimination was the real reason." St. Mary's Honor
Ctr. v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2752, 125
L.Ed.2d 407 (1993).
The parties stipulated that the EEOC made out a prima facie
case: Fisher was over 40 years of age, was qualified for the
positions, and was older than the selectees. The parties also
stipulated that LOCS offered a nondiscriminatory reason for its
actions: Fisher was not as qualified as the applicants selected
for promotion. The critical issue for the jury was whether LOCS'
explanation was true, as it contended, or pretextual, as the EEOC
contended. As stated above, the jury resolved the question in
favor of the EEOC, but the district court granted judgment as a
matter of law to LOCS because the EEOC failed to produce sufficient
evidence to show that LOCS' explanation for not promoting Fisher
8

was false. The EEOC argues on appeal that it did produce
sufficient evidence from which a reasonable jury could infer that
LOCS' proffered explanation was pretextual. Our task therefore is
to determine whether a reasonable jury could have found that LOCS'
explanation was pretextual.
In determining whether the employer's stated reason is false,
the trier of fact may not disregard the defendant's explanation
without countervailing evidence that it was not the real reason for
the discharge. Elliott v. Group Medical & Surgical Serv., 714 F.2d
556, 562 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct.
2658, 81 L.Ed.2d 364 (1984). Evidence that the proffered reason is
unworthy of credence must be enough to support a reasonable
inference that the proffered reason is false; a mere shadow of a
doubt is insufficient. Cf. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d
538 (1986) (noting that non-moving party must show more than a
"metaphysical doubt"). After thoroughly reviewing the record, we
agree with the district court that the EEOC failed to produce
sufficient evidence to allow a jury to conclude that LOCS'
explanation was pretextual.
All panel members testified at trial that they rated the
applicants based upon each applicant's experience in the three
priority programs, qualifications, past performance, references and
interviews. They testified that they ranked Fisher as they did
because they felt that the selectees were better suited or better
qualified for the positions. Specifically, they testified that
9

Fisher, by comparison to the selectees, had less experience in the
three priority programs, did not present herself as well during the
interview process, and received more negative references from
former supervisors. LOCS emphasized that it have never contended
that Fisher was not qualified for the position nor that she was a
poor employee, but rather that out of the applicant pool, Fisher
was not as qualified as the selectees.
Every LOCS representative agreed that in evaluating the
applicants the most important factor was knowledge of the three
priority programs; more particularly, they considered recent
hands-on experience in the three priority programs to be critically
important. The panel members explained that experience in and
knowledge of the three areas was necessary because supervisors
might be transferred during their tenure from one program to
another.
Although the vacancies were supervisory positions, the
panelists testified that earlier general supervisory experience was
not a particularly important factor unless it was in a priority
program. The panel also considered the applicants' references, but
did not consider them to be an overwhelming factor. Shirley
Goodwin, Division Director, testified that the panel was instructed
to evaluate each applicant for all the vacant positions. In other
words, the panel did not evaluate applicants based on individual
qualifications for a particular vacancy. Rather, it evaluated the
applicants based on their overall qualifications for all of the
vacancies.
10

C.
The EEOC argues first that it presented evidence that Fisher
was clearly better qualified than the selectees. A fact finder can
infer pretext if it finds that the employee was "clearly better
qualified" (as opposed to merely better or as qualified) than the
employees who are selected. See, e.g., Odom v. Frank, 3 F.3d 839,
845-46 (5th Cir.1993); Walther v. Lone Star Gas Co., 952 F.2d 119,
123 (5th Cir.1992); Thornbrough v. Columbus & Greenville R. Co.,
760 F.2d 633, 647 (5th Cir.1985).
The evidence does not support the EEOC's argument. With
respect to the November selectees, the evidence showed that Donna
Leavitt had recent experience in all three priority programs.
Leavitt's references highly recommended her as an excellent,
cooperative, committed worker who related well to clients and
co-workers. The one criticism was that she needed to work on
managing her paperwork and meeting deadlines. Every panelist gave
Leavitt the highest score.
Priscilla Brown had recent experience in two priority
programs,4 having spent the last two and a half years in Case
Management and twelve years prior to that in CPI. Her references
were also positive, emphasizing her dedication, knowledge,
experience, teamwork and organizational skills. The references
expressed concern over a speech problem, but indicated that Brown
4The record reflects that Brown actually had experience in
all three priority programs, as she spent a month in Family
Services in 1987. However, this information did not appear on
the form submitted to the panel.
11

had volunteered to undergo speech therapy and had made "tremendous"
improvements.
Carol Mackey had recent experience in two priority
programs--Case Management and Family Services. Although Mackey was
never assigned to CPI, she specialized in sexual abuse. Mackey's
references were uniformly positive, highlighting her client
relationships, team spirit, responsibility and organizational
skills.
Although Fisher also had prior experience in two priority
programs--Case Management and Family Services--she had spent the last
nineteen years in nonpriority administrative positions.5 The
narrative that she submitted to the panel confessed that she knew
little about CPI and was primarily interested in the Quality
Assurance position. Fisher's references were comparatively
negative. The most favorable reference, Carolyn Kramer,
highlighted Fisher's reliability, dedication and experience in
helping set up the Quality Assurance Unit. Another reference
referred to Fisher's "detail and procedure skills" and recommended
her for a Quality Assurance, Family Services or, possibly, Case
Management position. However, that reference noted that Fisher was
bossy and unyielding and would be too "ivory tower" for CPI. The
third reference was highly critical, stating that she would not
5The EEOC suggests that the panel's discounting of Fisher's
priority experience because it was nineteen-years old itself
suggests age discrimination. However, the EEOC presented no
evidence indicating that LOCS' employees progressed from working
in priority programs to working in nonpriority, procedural jobs.
In fact, after Fisher did not receive the first promotion, she
was placed in Case Management.
12

promote Fisher unless she were the last person available.6
As to the March selectees, Alvia Brown had recent experience
in two priority programs--Case Management for ten years and CPI for
two years. Brown's references were uniformly positive, focusing on
her organizational skills and cooperation. David Zumalt had prior
experience in at least two priority programs, most recently in CPI
for four years. Prior to that he was in Case Management for six
years. He also had prior experience in other child welfare
organizations in areas analogous to all three priority programs.
His references were also uniformly positive, focusing on his
competence and meticulousness.
This evidence does not demonstrate that Fisher was clearly
better qualified than the applicants selected for the contested
positions. At most, a fact finder could infer that Fisher was as
qualified for the positions as the selectees. As this court
cautioned in Odom, however, the judicial system is
not as well suited by training and experience to evaluate
qualifications for high level promotion in other disciplines
as are those persons who have trained and worked for years in
that field of endeavor for which the applications under
consideration are being evaluated.
Therefore, unless disparities in curricula vitae are so
apparent as virtually to jump off the page and slap us in the
face, we judges should be reluctant to substitute our views
for those of the individuals charged with the evaluation duty
by virtue of their own years of experience and expertise in
6Ms. Fisher neglected to include as a reference one of her
most recent supervisors, Cheryl Campos. Ms. Kramer noticed the
oversight and supplemented Fisher's file with Ms. Campos'
reference. Campos stated that Fisher was a good supervisor who
was very thorough and met deadlines. She especially recommended
Fisher for Quality Assurance, but noted that the demands of CPI
might be too great.
13

the field in question.
3 F.3d at 847. Fisher's qualifications are not so superior to
those of the selectees to allow an inference of pretext.
The EEOC argues next that, even if Fisher is not clearly
better qualified than the selectees under LOCS' stated promotion
standards, those standards constitute a post-hoc rationalization
for why Fisher was not promoted. At trial, the EEOC attempted to
cast doubt on LOCS' explanation for its decision by arguing that
general supervisory and Administrative Review experience were more
relevant to the positions than priority program experience. The
record reveals that Fisher did have substantially more supervisory
and compliance experience than the selectees. But we decline to
substitute our judgment for the employer in evaluating what types
of experience are most valuable for an employee in the new position
in the absence of proof that the standards were not consistently
applied or were so irrational or idiosyncratic as to suggest a
cover-up. See Elliott, 714 F.2d at 566-67; see also Little v.
Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir.1991);
Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280, 285 (5th
Cir.1989); Bienkowski v. American Airlines, Inc., 851 F.2d 1503,
1507-08 (5th Cir.1988).
The EEOC offered no evidence to show that LOCS applied the
standards inconsistently or that the standards were irrational.
First, as to supervisory experience, the EEOC attempted to show
LOCS' inconsistency in applying its standards by pointing to
various references in the interview packets to the selectees'
14

supervisory experience. But this evidence reveals nothing except
that LOCS considered supervisory experience in its decision, a
point LOCS does not dispute. It does not, however, undercut LOCS'
claim that such experience was less important to the promotion
decisions than broad priority program experience. Moreover, we
cannot say that it is irrational for an employer to give less
weight to general supervisory experience than actual field
experience where field experience is relevant to the position.
Second, while Administrative Review experience would be
helpful in performing the Quality Assurance functions, such
experience would have little, if any, benefit to a person in one of
the other positions. As mentioned, the panel was instructed to
evaluate each candidate for all the positions. But even if we
consider the failure to promote Fisher to the Quality Assurance
position under LOCS' articulated standard, the decision was a
rational one. The uncontradicted evidence showed that the Quality
Assurance position required greater skills than the Administrative
Review position. Fisher's primary function in Administrative
Review was to ensure that the necessary steps were taken in each
child welfare case in compliance with Public Law 96:272 and that
this action was documented. However, the Quality Assurance Unit
also required staff to make subjective judgments about the quality
of service provided in individual cases.7 As Danny Curtis,
7The EEOC makes much of the fact that Fisher technically
supervised Quality Assurance caseworkers for six months.
However, it offered no evidence to refute LOCS' testimony that
the Quality Assurance program was not implemented in full until
May 1990, nor did it show that Fisher had performed any
15

Assistant Regional Manager, testified at trial, Administrative
Review involved "a very simple process or procedural thing" to
ensure that the required steps were taken. According to Curtis,
Quality Assurance, in contrast,
involves a complete review of the case to determine if certain
policy issues, things that we have decided are important to be
received by the children, that we're providing these.... They
check for specific case planning and things; such as, not
only is there a case plan there, but does the case plan meet
the needs of the family.
Shirley Goodwin, Division Director, also testified that the
Quality Assurance position required a greater degree of
responsibility because of the subjective judgments the staff was
required to make. According to Ms. Goodwin, this was the main
reason that the Quality Assurance supervisor position was upgraded
to Supervisor I status. The EEOC presented no evidence to refute
this testimony. Thus, while Fisher's prior Administrative Review
experience does have some relevance to the Quality Assurance
position, it is plausible for LOCS to have concluded that training
someone in administrative compliance is easier than giving them the
experience needed to make subjective judgments in individual cases.
The EEOC argues next that the structure of the promotion
process was a sham to prevent Fisher from receiving a promotion.
To support this theory, the EEOC attempts to highlight what it
perceives as implausibilities or inconsistencies in the promotion
process. First, the EEOC contends that the decision not to hire a
person for Quality Assurance separately from the other, less
non-procedural duties.
16

administrative positions suggests an intent to disadvantage Fisher.
The testimony revealed that LOCS originally planned to fill only
the Quality Assurance position. Pursuant to the Civil Service
Rules, LOCS had to obtain approval from Civil Service to fill the
position and request Civil Service to certify a list of eligible
applicants. The evidence at trial revealed that certification was
a lengthy and burdensome process. While certification was pending
for the Quality Assurance position, two other Supervisor I
positions opened. To expedite matters, LOCS sought approval to
fill all three positions from the same applicant list. The EEOC
offered no evidence to refute LOCS' explanation that this was a
simply a time-saving measure to avoid the lengthy certification
process for the other two positions.
Second, the EEOC argues that LOCS' explanation that each
selectee needed experience in all three priority programs due to
the possibility of transfer is not credible. It offered evidence
that no one had been transferred in the three and a half years
since the promotions and that the agency had a low history of
transfers. However, the fact that the likelihood of transfer was
low does not render LOCS' consideration of that possibility
implausible. Moreover, while no one was transferred in the three
years since the promotions, record evidence reveals that promotions
to higher levels of supervision can expand the job duties to
include other programs. For example, when David Zumalt replaced
Joe Putnam as a District Supervisor, his duties expanded to include
Family Services.
17

Third, the EEOC contends that the exclusion of Carolyn
Kramer, Fisher's strongest supporter in November, from the March
panel also suggests an intent to discriminate against Fisher.
However, the uncontradicted testimony, including Kramer's,
indicated that she was excluded because none of the March vacancies
were in her sub-region. Moreover, there was no evidence that
Kramer's absence would have made a difference, given the other
panelists' low ratings of Fisher.
Fourth, the EEOC argues that Fisher's drop from fourth place
in November to eighth place in March indicates that the true
motivating factor was age. However, the undisputed testimony
revealed that the March panel started with a clean slate,
evaluating each applicant anew. Quite a few scores came out
differently, with some applicants scoring higher than they did in
November, and others scoring lower. Significantly, Fisher was not
the only candidate to score lower in March than in November. Any
possible inference that can be drawn from this disparity bears, if
anything, on Fisher's retaliation claim, which the jury rejected.
Fifth, the EEOC argues that the second panel's recommendation
of four applicants instead of two casts doubt on its
nondiscriminatory explanation, because had the November panel
recommended extra applicants, Fisher would have been on the list.
The panel members testified that their decision to recommend four
people stemmed from confusion over the number of vacancies and
concern about a possible hiring freeze. The EEOC again did not
discredit this explanation nor suggest that similar considerations
18

were present in November.
Finally, the EEOC argues that the March panel's
recommendation of specific slots for the selectees casts doubt on
its claim that individual qualifications for particular positions
were not part of the ranking. The panel testified that it ranked
the applicants based on their overall qualifications and only then
suggested assignments. Again, the EEOC offered no evidence to
discredit this testimony.
LOCS offered a facially benign explanation for each of the
EEOC's arguments. Where the plaintiff has offered no evidence to
rebut the employer's facially benign explanations, no inference of
discrimination can be drawn. See Odom, 3 F.3d at 848.
IV.
In sum, we conclude that the EEOC failed to produce evidence
from which a reasonable jury could infer that the reason LOCS gave
for its decision not to promote Fisher was pretextual. It offered
no evidence that LOCS' stated reason was not the true one, such as
that younger applicants were treated differently or that the
explanation given was so implausible as to be a cover-up. Rather,
the only evidence is the EEOC's own speculation that age motivated
the decision not to promote Fisher. We have consistently held that
an employee's subjective belief of discrimination, however genuine,
cannot be the basis of judicial relief. See Portis v. First Nat'l
Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir.1994);
Elliott, 714 F.2d at 567.
The overwhelming evidence showed that LOCS did not promote
19

Fisher because it believed that she was not as qualified for the
positions as the selectees. While we or the jury might have made
a different employment decision, we should not substitute our
judgment of an employee's qualifications for the employer's in the
absence of proof that the employer's nondiscriminatory reasons are
not genuine. We are persuaded that this is precisely what the jury
did here. As this court stated in Bienkowski:
The ADEA was not intended to be a vehicle for judicial
second-guessing of employment decisions nor was it intended to
transform the courts into personnel managers. The ADEA cannot
protect older employees from erroneous or even arbitrary
personnel decisions, but only from decisions which are
unlawfully motivated.
851 F.2d at 1507-08. The district court therefore correctly
granted judgment as a matter of law in favor of LOCS.8
AFFIRMED.

8In view of this decision, LOCS' cross-appeal from the
district court's denial of its motion for a new trial is moot.
20