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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-20535
Summary Calendar
_______________
RON HAAS,
Plaintiff-Appellant,
VERSUS
ADVO SYSTEMS, INCORPORATED,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
February 10, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ron Haas appeals a summary judgment in favor of ADVO Systems,
Incorporated ("ADVO"), on Haas's claim of age discrimination in
violation of the Age Discrimination in Employment Act ("ADEA").
Because Haas raises a genuine issue of material fact regarding
evidence of a nondiscriminatory motive, we reverse and remand.

I.
Haas submitted an application to ADVO for a Sales Manager
position. He interviewed with Craig Rosengarden, ADVO's Vice
President for Sales. The interview lasted eighty minutes, during
which Rosengarden commented that Haas was the "first well qualified
candidate that he had met." Haas then met with Jean Dickson,
ADVO's Human Resource Manager, for another sixty to eighty minutes.
Haas was called back to ADVO for a second interview, in which
Rosengarden told him that he had offered the Sales Manager position
to another person who had turned it down, leaving Haas and Marie
Barden as the finalists. Rosengarden added that his only concern
about hiring Haas was his age.
About a week later, Haas was invited to meet with Greg
Parnell, who was ADVO's Regional Vice President and the official
with ultimate hiring authority over the Sales Manager position.
This interview lasted approximately two hours. Shortly thereafter,
Dickson informed Haas that he was not hired. The reason given was
that Rosengarden felt that the chemistry was better with Barden.
At the time, Haas was fifty-four years old, Barden thirty-four.
II.
This court generally analyzes claims under the ADEA via the
burden shifting approach in McDonnell Douglas Corp. v. Green,
2

411 U.S. 792 (1972). See Ross v. University of Tex., 139 F.3d 521,
525 (5th Cir. 1998). The plaintiff must carry the initial burden
of establishing a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. Haas has done this by showing that (1)
he belongs to a protected class; (2) he applied for and was
qualified for a position that was seeking applicants; (3) he was
rejected; and (4) following his rejection, another applicant not of
the protected class was hired. See id.
Thereafter, the burden shifts to the employer, which must
articulate "some legitimate, nondiscriminatory reason for the
employee's rejection." Id. ADVO's argument that Barden was the
better of the two candidates, on the basis of experience,
qualifications, and chemistry, suffices to meet this burden. Cf.
id. at 802-03.
Lastly, Haas must be afforded an opportunity to rebut ADVO's
purported explanation, to show that the reason given is merely
pretextual. Id. at 804. In determining whether Haas's rebuttal
rescues him from summary judgment, we look to whether he has
"raise[d] a genuine issue of material fact as to whether he has
established pretext." Nichols v. Loral Vought Sys. Corp., 81 F.3d
38, 41 (5th Cir. 1996). In so doing, we look at rebuttal evidence
in tandem with evidence presented as part of the prima facie case.
Id.
Haas's only evidence that possibly could rebut ADVO's
3

explanation is the statements made by Rosengarden regarding Haas's
age. Between his second and third interviews, Haas was told by
Rosengarden that Rosengarden's "only concerns about hiring [Haas]
were [his] age . . . ." Construing all reasonable inferences in
favor of Haas, we find that this statement, in light of its
circumstances, precludes summary judgment.
Although, as ADVO forcefully argues, ParnellSSand not Rosen-
gardenSShad ultimate hiring authority, it would be inappropriate
for us to infer that Rosengarden's recommendation to Parnell
regarding Haas was both (1) free from the taint of his concerns
regarding Haas's age and (2) inconsequential to Parnell's final
decision. It is more reasonable to infer that Rosengarden's
expressed concern over lack of "chemistry" between the office and
Haas was linked to Haas's age and that Rosengarden's input indeed
was influential in Parnell's decision making.
Instructive in our treatment of Rosengarden's remarks is
Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996), in
which we noted that
remarks may serve as sufficient evidence of age
discrimination if the offered comments are: 1) age
related; 2) proximate in time to the [employment
decision]; 3) made by an individual with authority over
the employment decision at issue; and 4) related to the
employment decision at issue. Comments that are "vague
and remote in time" are insufficient to establish
discrimination.
Id. at 655. Rosengarden's statements were not "vague and remote in
4

time," but rather were closely connected in subject matter and time
to the employment decision. Brown suggests, therefore, that
Rosengarden's comments be viewed as evidence of discrimination as
a matter of law.
We also reject ADVO's argument that only Parnell was a
relevant decision maker and that Rosengarden exerted no influence
over Parnell's ultimate decision. The record does not support this
argument, and the inference we make must be to the contrary.
Likewise, we reject ADVO's assertion that no causal nexus between
Rosengarden's statements and Parnell's decision exists as a matter
of law.1
Because we do not construe Haas's evidence to constitute
"direct evidence" of discrimination, however, we do not reach the
issue of ADVO's mixed-motives defense.2 Instead, we merely
conclude
that
Rosengarden's
statements
provide
indirect,
inferential evidence of discrimination, albeit sufficient evidence
to defeat summary judgment.
The summary judgment is REVERSED, and this matter is REMANDED
1 See Long v. Easterfield College, 88 F.3d 300, 307 (5th Cir. 1996) ("The
degree to which [the ultimate hiring officer]'s decisions were based on his own
independent investigation is a question of fact which has yet to be resolved at the
district court level. Viewing the evidence in the light most favorable to
[plaintiffs], we must assume on appeal that [hiring officer] merely 'rubber stamped'
the recommendations of [his subordinates].") (emphasis added).
2 See Mooney v. Aramco Servs. Corp., 54 F.3d 1207, 1218 (5th Cir. 1995)
(stating that direct evidence of discrimination is that which shows that the
employer in question "actually relied on [the forbidden factor] in making its
decision"); Price Waterhouse v. Hopkins, 490 U.S. 228, 241-46 (1988) (discussing
mixed-motives defense).
5

for further appropriate proceedings. We express no views as to the
ultimate merits of the claim; we conclude only that the matter
should not be resolved on summary judgment.
6