L. Jackson v. Cal-Western Packaging Corp.

Filing 501078898

Case: 09-20411

Document: 00511078898

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Date Filed: 04/13/2010

REVISED April 13, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals F i f t h Circuit

N o . 09-20411

FILED
March 26, 2010 Charles R. Fulbruge III Clerk

L . WAYNE JACKSON,

P la in tiff ­ A p p e lla n t, v. C A L -W E S T E R N PACKAGING CORPORATION, D e fe n d a n t­ A p p e lle e .

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e SMITH, CLEMENT, and OWEN, Circuit Judges. P R I S C I L L A R. OWEN, Circuit Judge: W a y n e Jackson brought claims under the Age Discrimination in E m p lo y m e n t Act (ADEA), 29 U.S.C. §§ 621-634, and appeals the district court's g r a n t of summary judgment in favor of his employer. We affirm.

I J a c k s o n was employed by Cal-Western Packaging Corporation in various m a n a g e r ia l positions for eight years, until June 2007. In May 2007, one of J a c k s o n 's coworkers, Karen Hopper, emailed her supervisor, Cal-Western

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No. 09-20411 C o n tr o lle r James Rosetti, asserting that Jackson had engaged in behavior that m a d e her "uncomfortable." She recounted that Jackson had asked to see her " [b re a s t s ]" and had commented that her boyfriend must like "big boobs." She s ta t e d that Jackson had "on many occasions" made inappropriate statements or c o m m e n t s in front of her and her female coworkers. In addition, she told her s u p e r v is o r that every time she saw Jackson he tried to touch her and that he h a d once cornered her and asked her to raise her blouse. Rosetti then informed C h ie f Operating Officer Jimmy Phelps of Jackson's behavior. Phelps began an in te r n a l investigation and interviewed several employees who corroborated the a lle g a tio n s . Phelps then hired an attorney, Victoria Phipps, to conduct an e x t e r n a l investigation into Jackson's behavior. Phipps's interviews with both m a le and female coworkers confirmed the harassment allegations. When Phipps in terv iew e d Jackson, he asserted that he was "vindictive" and would try "legally" to retaliate against those making allegations against him. In June 2007, Phelps terminated Jackson for his non-compliance with the c o m p a n y 's written sexual harassment policy, a copy of which Jackson had signed w h e n he was hired in 1999. Jackson was sixty-nine years old when he was t e r m in a t e d . He was replaced by Monte Duke, who was forty-two at the time. J a c k s o n brought suit against Cal-Western for age discrimination. His c la im primarily relied on a remark Phelps allegedly made to another coworker in 2006 to the effect that Jackson was an "old, gray-haired fart" and that the c o w o r k e r would be in charge when Jackson retired. Cal-Western moved for s u m m a r y judgment. The district court ruled that Jackson had alleged a prima fa cie case of discrimination and that Cal-Western had offered a legitimate, nond is cr im in a t o r y reason for firing him, but that Jackson had failed to show that t h e r e was a fact issue as to whether Cal-Western's reason for firing him was p r e t e x tu a l. Jackson argues on appeal that the district court decided factual

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No. 09-20411 is s u e s at the summary judgment stage and improperly relied on incompetent s u m m a r y judgment evidence in its ruling. II J a c k s o n first challenges the district court's reliance on several sworn, n o t a r iz e d affidavits tendered by Cal-Western as summary judgment evidence. J a c k s o n argues that the affidavits are not competent summary judgment e v id e n c e since they do not state that they were sworn to be "true and correct." J a c k s o n 's argument is without merit. The cases on which he relies all r e la t e to unsworn affidavits. None of the statements at issue in this case were u n s w o r n . Additionally, we have expressly held that "there is no requirement t h a t sworn affidavits have a statement that the contents are `true and correct.'"1 " S w o r n affidavits . . . are certainly appropriate for review on a Rule 56 motion fo r summary judgment." 2 Accordingly, the district court properly relied on the s w o r n affidavits. III W e review the grant of a motion for summary judgment de novo, applying t h e same standard as the district court.3 We view the evidence in the light most fa v o r a b le to the non-moving party and avoid credibility determinations and w e ig h in g of the evidence.4 Summary judgment is appropriate when the

c o m p e t e n t summary judgment evidence demonstrates that there are no genuine is s u e s of material fact and the moving party is entitled to judgment as a matter

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DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005). E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007). Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002).

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No. 09-20411 o f law.5 An issue of material fact is genuine if a reasonable jury could return a v e r d ic t for the nonmovant.6 I n employment discrimination cases, a plaintiff may rely on direct or c ir c u m s ta n t ia l evidence, or both.7 Under the ADEA, the plaintiff has the burden o f persuasion to show "that age was the `but-for' cause of [his] employer's adverse a c tio n ." 8 J a c k s o n first argues that Phelps's purported comment that he was an "old, g r a y -h a ir e d fart" is direct evidence of age discrimination. But since Jackson did n o t make this argument in his response to the summary judgment motion before t h e district court, he is precluded from raising it on appeal.9 Moreover, the c o m m e n t is not direct evidence of discrimination. As we will discuss further in fr a , Jackson has not shown that the comment was proximate in time to the t e r m in a tio n or related to the employment decision, and thus the comment c a n n o t qualify as direct evidence.1 0 J a c k s o n contended in the district court and maintains on appeal that c ir c u m s ta n t ia l evidence establishes his claim of age discrimination. The district c o u r t applied the familiar framework outlined in McDonnell Douglas Corp. v. G r e en 1 1 for allocating the burden of production and the order of presenting

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Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Sandstad, 309 F.3d at 896. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002). See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003). 411 U.S. 792 (1973).

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No. 09-20411 p r o o f.1 2 "Although intermediate evidentiary burdens shift back and forth under t h is framework, `[t]he ultimate burden of persuading the trier of fact that the d e f e n d a n t intentionally discriminated against the plaintiff remains at all times w it h the plaintiff.'"1 3 N e it h e r party has contended on appeal that the McDonnell Douglas f r a m e w o r k is inapplicable to ADEA claims. While the Supreme Court has not d e fin it iv e ly resolved whether it is,1 4 we are bound by our circuit precedent a p p ly in g McDonnell Douglas to age discrimination cases.1 5 Accordingly, we will con sid e r Jackson's claims involving circumstantial evidence under that construct. T o establish a prima facie case of age discrimination, "a plaintiff must show th a t (1) he was discharged; (2) he was qualified for the position; (3) he was within t h e protected class at the time of discharge; and (4) he was either i) replaced by s o m e o n e outside the protected class, ii) replaced by someone younger, or iii) o th e r w is e discharged because of his age." 1 6 The parties do not dispute that

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (explaining that "[f]irst, the plaintiff must establish a prima facie case of discrimination," which shifts to respondent the burden to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. . . . This burden is one of production, not persuasion; it `can involve no credibility assessment.'" If this burden is met, the plaintiff "must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" (internal citations omitted)).
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Id. at 143 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349 n.2 (2009) ("[T]he Court has not definitively decided whether the evidentiary framework of [McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context."). See Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005); Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896-97 (5th Cir. 2002); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (internal quotation marks and citation omitted).
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No. 09-20411 J a c k s o n has alleged a prima facie case of age discrimination since he was t e r m in a t e d , qualified, forty years or older (and thus within the class protected by t h e ADEA),17 and replaced by someone substantially younger.1 8 N o r do the parties dispute that Cal-Western has articulated a legitimate, n o n -d is c r im in a to r y reason for Jackson's termination with its explanation that he w a s fired for sexual harassment. The question is whether Jackson has shown t h a t there is a genuine issue of material fact as to whether this reason was p r e t e x t u a l. A plaintiff may show pretext "either through evidence of disparate t r e a t m e n t or by showing that the employer's proffered explanation is false or `u n w o r t h y of credence.'"1 9 J a c k s o n asserts that the evidence in the record creates a factual issue as t o whether Cal-Western's proffered reason was pretextual. Specifically, he points t o : (1) his own statements that he had not made sexually harassing comments; (2 ) Phelps's purported statement that he was an "old, gray-haired fart;" (3) e v id e n c e that Cal-Western did not discipline younger employees who engaged in s im ila r commentary and emails; and (4) a coworker's statement that she did not p e r c e iv e his alleged comments as sexual harassment. J a c k s o n 's self-serving statements that he did not commit sexual h a r a s s m e n t are insufficient to create a triable issue of fact as to whether CalW e s te r n fired him because of his age. In cases in which an employer discharges a n employee based on the complaint of another employee, the issue is not the t r u t h or falsity of the allegation, but "whether the employer reasonably believed

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See 29 U.S.C. § 631(a) (protecting individuals "who are at least 40 years of age").

See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (explaining that replacement by someone "substantially younger" can be an indicator of age discrimination).
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Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Reeves, 530 U.S. at

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No. 09-20411 t h e employee's allegation and acted on it in good faith." 2 0 Cal-Western was faced w it h considerable evidence that Jackson was violating the company's sexual h a ra s s m e n t policy. The evidence came from several employees, both male and fe m a le , and was substantiated by both an internal and external investigation of J a c k s o n 's behavior. Jackson has presented no evidence as to why the company's r e lia n ce on the evidence against him was in bad faith. His own conclusory a s s e r t io n that he did not behave inappropriately is irrelevant, since he has p r o v id e d no evidence to suggest that Cal-Western's decision to trust the results o f the two investigations, rather than his self-serving denial of wrongdoing, was u n r e a s o n a b le or in bad faith. 2 1 Jackson's assertion of innocence alone does not c r e a te a factual issue as to the falsity of Cal-Western's proffered reason for t e r m in a t in g him.22 J a c k s o n 's assertions that Cal-Western did not discipline younger employees w h o engaged in similar behavior and that Jackson's coworker stated that his b e h a v io r did not amount to sexual harassment cannot be used to establish triable is s u e s of fact since he did not make these assertions in the district court or refer t o any evidence to this effect.2 3 (Nor does he refer to any evidence of this nature
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Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993).

See id. at 1166 (explaining that, since bad faith is the issue, "[t]o the extent that Waggoner's summary judgment evidence relates to his innocence of the sexual harassment charge, it is irrelevant"). Cf. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (concluding that selfserving statements were insufficient to overcome summary judgment, particularly when faced with "overwhelming evidence" in opposition); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (affirming summary judgment for the plaintiff when defendant's only evidence in opposition was his own "self-serving allegations"); BMG Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (explaining that a "conclusory, self-serving statement" by defendant was insufficient to create a triable issue of fact). See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (stating that "[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court").
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No. 09-20411 in his brief to this court.) We have explained that "Rule 56 does not impose upon t h e district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment."2 4 Because Jackson did not identify a n y such evidence in his opposition to summary judgment, we will not consider h is argument in this regard. F in a lly , we turn to Phelps's alleged comment. In his deposition, Jackson s ta t e d that coworker Donnie Sheets "told me one day in his office that [Phelps] h a d told him that he was going to be in charge of all the plants when that old, g r a y -h a ir e d fart retired, meaning me."2 5 Jackson said that Sheets made this c o m m e n t to him "a couple of times," but he did not discuss whether Phelps made t h e comment to Sheets on more than one occasion. The district court concluded t h a t Phelps's statement was a "stray remark." We have explained that comments are evidence of discrimination only if t h e y are "1) related to the protected class of persons of which the plaintiff is a m e m b e r ; 2) proximate in time to the complained-of adverse employment decision; 3 ) made by an individual with authority over the employment decision at issue; a n d 4) related to the employment decision at issue." 2 6 Comments that do not

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Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).

Phelps and Sheets have both denied that Phelps made such a comment, but since we do not make credibility determinations at the summary judgment stage, their denials are irrelevant. Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000) (internal brackets and quotation marks omitted).
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No. 09-20411 m e e t these criteria are considered "stray remarks," 2 7 and standing alone, are in s u f fic ie n t to defeat summary judgment.2 8 W h ile Phelps's alleged comment meets the first and third criteria, Jackson h a s provided no evidence that the comment was proximate in time to his firing o r related to the employment decision at issue. Jackson maintains that Sheets t o ld him of Phelps's comment on a visit to Memphis in the summer of 2006, but it is unclear when Phelps actually made the comment. Still, even assuming that t h e comment was made soon before Sheets reported it to Jackson, it was made a lm o s t a year before Jackson's June 2007 termination. The comment appears w h o lly unrelated to Jackson's termination, and Jackson has not presented any e v id e n c e to show otherwise. T h is comment alone, or in combination with Jackson's uncorroborated d e n ia l of any sexual harassment, is insufficient to establish a genuine issue of m a t e r ia l fact as to pretext.2 9 There is substantial evidence that Jackson was fired fo r violation of Cal-Western's sexual harassment policy, and Jackson's only

We have explained that this circuit's stray remarks doctrine survived the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (noting that a postReeves decision by which we are bound, Rubinstein, 218 F.3d 392 (5th Cir. 2000), interpreted Reeves not to overrule the stray remarks doctrine); cf. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) (explaining that we should view the stray remarks doctrine "cautiously" after Reeves). Rubinstein, 218 F.3d at 401; see also Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) ("[A] mere `stray remark' is insufficient to establish age discrimination."). See Auguster, 249 F.3d at 405 (holding that a comment made nearly a year before the adverse employment decision that appeared unrelated to the decision was a stray remark); see also Patel v. Midland Mem'l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002) (holding that a comment made two or more years before the employment decision at issue, that was unrelated to the decision, was not evidence of discrimination); Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001) (stating that "where comments are vague and remote in time they are insufficient to establish discrimination" (internal brackets and quotation marks omitted)); Rubinstein, 218 F.3d at 401 (concluding that comments were stray remarks when plaintiff had failed to offer evidence that they were proximate in time or related to his failure to receive a raise or a promotion).
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No. 09-20411 c o n t r a v e n t io n of that evidence comes from his own assertions. Without more, we s im p ly cannot conclude that there is a triable issue of fact as to whether CalW e s te r n discriminated against Jackson based on age.

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B e c a u s e no genuine issue of material fact exists as to Jackson's claim under th e ADEA, we AFFIRM the district court's grant of summary judgment for CalW estern .

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