United States Court of Appeals,

                              Fifth Circuit.

                              No. 95-20143.

                   Robert D. HALL, Plaintiff-Appellant,

                                    v.

 GILLMAN INC.; Frank Gillman Pontiac Company, doing business as
Frank Gillman Pontiac/GMC, Defendant-Appellee.

                             April 18, 1996.

Appeal from the United States District Court for the Southern
District of Texas.

Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.

     STEWART, Circuit Judge:

     Robert D. Hall, who was 55 years old at the time, was

dismissed from his position as GMC Truck Sales manager at Frank

Gillman Pontiac Company ("Gillman Pontiac").            He sued, alleging

that age was a determinative factor in his dismissal.              The trial

court    granted   summary   judgment    to   Gillman   Pontiac,   and   Hall

appeals.    Finding that Hall had established the existence of a

genuine issue of fact as to whether the reasons given by Gillman

Pontiac for Hall's dismissal from employment were mere pretext, we

REVERSE and REMAND.

                                  FACTS

     Gillman is a franchised General Motors dealer of Pontiac cars

and GMC trucks.      In 1984, Gillman Pontiac's president, Mr. Ramsey

Gillman, persuaded Hall to close his used car lot and to return to


     *
      Circuit Judge of the Eighth Circuit, sitting by
designation.

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work for Gillman Pontiac, where Hall had previously worked, off and

on, for a total of about 20 years.    From 1984 until January 1990,

Hall was Gillman Pontiac's GMC Truck Sales Manager.

     In October 1989, Mr. Gillman met with Hall and Ervin Hawkins,

Hall's counterpart in charge of Pontiac car sales.     Mr. Gillman

informed Hall and Hawkins that sales of GMC's and Pontiacs were

down in 1989, and that he was dissatisfied with their performance.

Mr. Gillman advised them that changes would be made if they did not

improve in the next 90 days.

     In January 1990, Mr. Gillman told Hall that Gillman Pontiac

was replacing him as GMC sales manager because his performance had

not improved.   Mr. Gillman offered Hall a sales position, but Hall

declined and instead left Gillman Pontiac.     Hawkins, who is two

years older than Hall, remained as Pontiac car sales manager for

another seventeen months because Mr. Gillman thought Hawkins'

performance had improved.

     Hall filed a complaint with the EEOC alleging unlawful age

discrimination.   The EEOC issued a no-violation determination, and

Hall then filed suit in Texas state court alleging claims under the

Texas Labor Code.   When Hall amended his complaint to include ADEA

claims, the defendants removed the case to federal court.       The

district court granted summary judgment for Gillman Pontiac in

February 1995, without opinion.

                             DISCUSSION

        A district court's grant of summary judgment is reviewed de

novo.   Neff v. American Dairy Queen Corp., 

, 1065 (5th


                                  2
Cir.1995), cert. denied, --- U.S. ----, 

, 

   (1996).      Under       Fed.R.Civ.P.       56(c),    summary       judgment    is

appropriate when the evidence, viewed in the light most favorable

to the nonmovant, reflects no genuine issues of material fact.

Celotex Corp. v. Catrett, 

, 

, 

(1986).

        In order to withstand a summary judgment challenge, an ADEA

plaintiff    must       first    establish     a    prima    facie       case    of   age

discrimination, after which the defendant is given an opportunity

to    articulate    a    legitimate,     nondiscriminatory          reason      for   its

disparate treatment of the plaintiff.                Lindsey v. Prive Corp., 

, 326 (5th Cir.1993) (citations omitted). If the defendant

successfully       does    so,     the   plaintiff         bears    the     burden     of

demonstrating that the reason was pretextual.                      

burden of persuasion remains with the plaintiff.                     

can demonstrate that the reason was pretextual

in two ways, "either [1] directly by persuading the court that a

discriminatory reason more likely motivated the employer, or [2]

indirectly by showing that the employer's proffered explanation is

unworthy of credence."           Thornbrough v. Columbus and Greenville R.

Co., 

, 639 (5th Cir.1985) (citing Texas Department of

Community Affairs v. Burdine, 

, 255 n. 8, 

, 1094 n. 8, 

(1981)).                  Because we are reviewing

a summary judgment, we need not determine whether Hall actually

proved     that     Gillman's       reasons        were     pretextual          for   age

discrimination, because in the context of a summary judgment


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proceeding, the question is not whether the plaintiff proves

pretext, but rather whether the plaintiff raises a genuine issue of

fact regarding pretext.         

.       Thus, as

restated recently by this court en banc, a plaintiff can avoid

summary judgment if the evidence taken as a whole, (1) creates a

fact issue as to whether each of the employer's stated reasons were

what actually motivated the employer, and (2) creates a reasonable

inference that age was a determinative factor in the actions of

which the plaintiff complains.        Rhodes v. Guiberson Oil Tools, 

, 993 (5th Cir.1996) (en banc).              The employer will be

entitled to summary judgment if the evidence taken as a whole would

not allow a jury to infer that the actual reason for the discharge

was discriminatory.       

employee has created an

issue of fact and the employer is not entitled to summary judgment

if the evidence taken as a whole would allow a jury to infer that

the actual reason for the discharge was discriminatory.                    See

.         Hall argues that the evidence he

produced is sufficient for summary judgment purposes.             We agree.

     Gillman Pontiac concedes for purposes of appeal that Hall has

established a prima facie case of age discrimination, as delineated

by this court in 

.        However, Gillman Pontiac

contends   that   it     replaced   Hall   because    of   his    poor   sales

performance.      Hall     argues   that   Gillman    Pontiac's    claim   is

unbelievable because he had won a major sales award only a few

months before the warning given by Mr. Gillman, and that Gillman

Pontiac ranked high in sales while he was there and has not held


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that rank since he left.       He also presents the affidavits of other

employees attesting that he usually worked "bell-to-bell."               All

parties admit that Gillman Pontiac was experiencing a slump in

sales at the time, and it is not clear from the record whether

Hall's sales had fallen off any more than anyone else's.            Hall also

argues that direct evidence shows Gillman Pontiac was motivated by

a discriminatory reason to dismiss him. He presents the affidavits

of several employees and former employees attesting that Gillman

Pontiac's    general   sales    manager   and   chief   operating    officer

repeatedly stated their intent was to get rid of the old salesmen

at the dealership.

      We conclude from the summary judgment record that Hall has

created a genuine issue of fact as to whether Gillman Pontiac

dismissed him for poor performance or because of his age.                 In

Thornbrough, we reversed a summary judgment because we found that

the appellant had created a genuine issue of fact as to pretext.

.       We noted that through the dim mists

of the record as it stood at the time, we perceived a thin vapor.

.        As in Thornbrough, "whether this

vapor will precipitate into a victorious shower is a question for

the jury."   

court erred in granting summary judgment

under the facts and circumstances of record.        We therefore REVERSE

and REMAND for further proceedings.




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