Faulstick v. Southern Tire Mart, LLC

Filing 92

MEMORANDUM OPINION AND ORDER granting 56 Motion to Strike ; granting in part and denying in part 58 Motion for Summary Judgment. Signed by District Judge Keith Starrett on 8/11/2014 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ALBERT H. FAULSTICK
V.

PLAINTIFF
CIVIL ACTION NO. 2:13cv65-KS-MTP

SOUTHERN TIRE MART, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendant Southern Tire Mart, LLC’s
Motion to Strike Plaintiff’s Expert Designation and to Exclude Testimony of Craig A.
Silva, CPA (“Motion to Strike”) [56] and Motion for Summary Judgment [58].1 Having
considered the submissions of the parties, the record, and the applicable law, the Court
finds that the Motion to Strike [56] should be granted and that the Motion for Summary
Judgment [58] should be granted in part and denied in part.
BACKGROUND
Plaintiff Albert H. Faulstick alleges employment discrimination based on age
against his former employer, Southern Tire Mart, LLC (“Southern Tire”). Faulstick was
employed by Southern Tire as an airplane pilot from 2005 to 2011. Southern Tire is a
commercial truck tire dealer that manufactures and sells new tires and retreads.
Southern Tire maintains its headquarters in Columbia, Mississippi, and has sixty-five
locations across the United States. Southern Tire owns a company airplane and its
owners and employees regularly use the airplane to visit Southern Tire’s stores and
customers. Thomas Duff and James Duff (sometimes collectively referred to as the

1

Also pending before the Court is the Plaintiff’s Motion for Sanctions [61], which will
be addressed in a separate order.

“Duffs”), who are brothers, each own 50% of Southern Tire.
Southern Tire owned a Hawker 850, a mid-size airplane, during the majority of
the time Faulstick was employed by the company. The Hawker 850 is designed to be
flown by two pilots. Faulstick and Clyde Esplin, another pilot employed by Southern
Tire, flew the Hawker 850 approximately two times per week during the course of their
employment.
In or about September of 2011, Southern Tire purchased a Hawker 4000, a
super mid-size airplane. Neither Faulstick nor Esplin was certified to fly the Hawker
4000. Faulstick contends that on October 1, 2011, the day before he was scheduled to
leave for training to fly the Hawker 4000, Thomas Duff called him and advised that he
was not to leave for training; that he was being reclassified as a back-up pilot; and that
his employment would be terminated at the end of the year. Faulstick further alleges
that approximately two weeks later, James Duff told him Southern Tire was “looking for
long term employment” when he asked why he was being terminated. Clyde Esplin was
allowed to receive training to fly the Hawker 4000. However, Esplin was subsequently
terminated in November of 2011.
Faulstick was seventy-two (72) years old when his employment relationship with
Southern Tire was terminated, while Clyde Esplin was approximately forty-four (44)
years old at the time of his termination. Faulstick alleges that Southern Tire hired
Charles Brantley Oursler as his replacement. Oursler was thirty-four (34) when he was
hired by Southern Tire on September 30, 2011. Southern Tire contends that Faulstick
was replaced by Jarrett L. Howard, who was hired on November 28, 2011, at the age of
forty-two (42). It appears to be undisputed that both Oursler and Howard required
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training in order to be certified to fly the Hawker 4000 upon their retention by Southern
Tire. In short, Albert Faulstick and Clyde Esplin were out and Charles Oursler and
Jarrett Howard were in as Southern Tire’s pilots by January, 2012.
On March 7, 2012, Faulstick filed a Charge of Discrimination [58-9] with the
Equal Employment Opportunity Commission (“EEOC”). Faulstick asserted that he was
terminated because of his age and replaced by a younger employee in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. On September
25, 2012, the EEOC issued its Dismissal and Notice of Rights [58-10], advising
Faulstick that he had ninety (90) days to file suit under the ADEA.
On December 7, 2012, Faulstick filed suit against Southern Tire in the United
States District Court for the Eastern District of Louisiana. (See Compl. [1].) Subject
matter jurisdiction is asserted under Title 28 U.S.C. § 1331 on the basis of a federal
question. The Complaint only presents one claim for relief: Faulstick’s allegation that
Southern Tire violated the ADEA by terminating him on the basis of his age. Faulstick
seeks, inter alia, back pay, front pay, compensatory damages for emotional distress and
mental anguish, liquidated damages under 29 U.S.C. § 626(b), and attorney’s fees. On
April 4, 2013, the Louisiana District Court transferred the proceeding to this Court for the
convenience of the parties and witnesses pursuant to 28 U.S.C. § 1404(a). (See Order
and Reasons [15].)
In seeking summary judgment, Southern Tire posits that Faulstick and Esplin
were both terminated due to numerous performance and safety issues, and that
Faulstick’s age was not a factor in the termination decision. Southern Tire also argues
that Faulstick’s stated opposition to moving up to the larger Hawker 4000 played a part
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in the Duffs’ decision to terminate him. Southern Tire separately requests that
Faulstick’s financial expert, Craig A. Silva, CPA, be precluded from offering testimony in
this action. (See Mot. to Strike [56].)
DISCUSSION
I.

Motion to Strike [56]
Faulstick’s expert witness designation deadline was October 1, 2013. (See Case

Mgmt. Order [24] at p. 4.) On March 13, 2014, Faulstick served a copy of an Expert
Report [56-2] prepared by Craig Silva, CPA. Silva was retained “as an expert
accountant to evaluate” Faulstick’s lost wages. (Expert Report [56-2 at ECF p. 4].)
Silva calculates Faulstick’s loss of earnings for the period of January 1, 2012 to
December 31, 2016, at $625,655. (Expert Report [56-2 at ECF p. 7].)
Southern Tire contends Silva should be excluded as an expert witness because
his opinion is unreliable and because he was not timely designated in accordance with
the Court’s Case Management Order. The Court need not consider the reliability of
Craig Silva’s opinions. Faulstick’s designation of Silva as an expert witness was clearly
untimely and no adequate justification for the late disclosure has been provided to the
Court.
Under Rule 26 of the Federal Rules of Civil Procedure, Aa party must disclose to
the other parties the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.@ Fed. R. Civ. P. 26(a)(2)(A). As to a
retained expert witness, a party=s disclosure must include a written report prepared by
the witness containing, inter alia, Aa complete statement of all opinions the witness will

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express and the basis and reasons for them; [and] the facts or data considered by the
witness in forming them . . . .@ Fed. R. Civ. P. 26(a)(2)(B). The purpose behind the
expert report requirement “is to avoid the disclosure of ‘sketchy and vague’ expert
information, as was the practice under the former rule.” Sierra Club, Lone Star Chapter
v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996) (citing Fed. R. Civ. P. 26
advisory committee=s note). Expert disclosures are to be made in the sequence ordered
by the court and are to be supplemented in accordance with Rule 26(e). See Fed. R.
Civ. P. 26(a)(2)(D)-(E). Under this Court’s Local Uniform Civil Rules, absent a finding of
just cause, a party’s failure to make full expert disclosures by its “expert designation
deadline is grounds for prohibiting introduction of that evidence at trial.” L.U.Civ.R.
26(a)(2). A party seeking to designate an expert without providing full disclosure will not
be considered to have met its expert designation deadline and the disclosure may be
stricken upon motion or by the court sua sponte. L.U.Civ.R. 26(a)(2)(B); see also Fed.
R. Civ. P. 37(c)(1).
Craig Silva’s March 13, 2014 Expert Report [56-2] was served approximately five
(5) months subsequent to the expiration of Faulstick’s October 1, 2013 expert witness
designation deadline. Faulstick did not disclose any of the expert witness information
required by Rule 26(a)(2)(B), such as a complete statement of all opinions Silva will
express and the reasons for them, prior to October 1. Accordingly, Faulstick’s
designation of Silva was late and the Court considers whether Silva should be
precluded from offering expert testimony at trial due to this discovery violation. District
courts possess broad, considerable discretion in discovery matters. See Sierra Club,
Lone Star Chapter, 73 F.3d at 569 (citations omitted). That discretion, however, is to be
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guided by the following four factors in determining whether to exclude untimely expert
witness testimony: “(1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and (4)
the availability of a continuance to cure such prejudice.” Hamburger v. State Farm Mut.
Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893
F.2d 787, 791 (5th Cir. 1990)).
Faulstick offers no explanation as to why he failed to make full expert disclosures
regarding Craig Silva prior to his expert witness designation deadline. Therefore, the
first Hamburger factor weighs in favor of exclusion.
Silva’s opinions have no bearing on liability or the outcome of Southern Tire’s
Motion for Summary Judgment [58]. The opinions only weigh upon certain of
Faulstick’s damage claims. To the extent Silva’s testimony is considered to be
important to Faulstick’s ability to obtain certain damages, “the importance of the
testimony underscores how critical it was for” Silva to have been timely designated.
Hamburger, 361 F.3d at 883. Thus, the second Hamburger factor only slightly militates
against exclusion.
The Court finds that Southern Tire would be prejudiced if Silva provided expert
testimony at trial. Faulstick served Silva’s Expert Report approximately four (4) months
after the expiration of Southern Tire’s expert designation deadline and with only
nineteen (19) days remaining before the close of discovery. As a result, Southern Tire
was prohibited from timely designating an expert witness to address Silva’s opinions. It
is unreasonable to expect a party to alter its preparation of the litigation, seek
permission to designate an expert witness out of time, retain and designate an expert,
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and conduct expert witness discovery—all within the span of 19 days—because its
opponent violates a scheduling order. The Fifth Circuit has affirmed the exclusion of
expert testimony under analogous circumstances. See Geiserman, 893 F.2d at 791
(rejecting the plaintiff’s contention that “a couple weeks” delay in designating an expert
witness would not have prejudiced the defendant; the delay “would have disrupted the
court’s discovery schedule and the opponent’s preparation”). Faulstick’s argument that
Southern Tire cannot claim prejudice because it was put on notice of his plan to retain
Craig Silva prior to October 1, 2013, is not well taken. Faulstick’s March of 2013
opposition to the transfer of venue and September 18, 2013 discovery responses only
identify Silva as a potential expert witness. For example, Faulstick’s response to
Interrogatory No. 4 states in pertinent part that “Plaintiff has not retained any experts in
this matter, however, it is anticipated that Plaintiff may seek to retain . . . Craig Silva . . .
to address loss of earnings . . . .” (Doc. No. [65-3] at p. 5.) When October 1 came and
passed without any expert report from Silva, it was reasonable for Southern Tire to
presume that Faulstick had decided not to retain Silva and that no rebuttal expert
testimony regarding loss of earnings would be necessary. Furthermore, neither
Faulstick’s opposition to the transfer of venue nor his discovery responses supply any of
Silva’s opinions.
A continuance would likely cure the aforementioned prejudice. On the other
hand, a continuance would also result “in additional delay and increase[ ] the expense of
defending the lawsuit.” Hamburger, 361 F.3d at 883 (citation omitted). Further, “a
continuance would not deter future dilatory behavior, nor serve to enforce local rules or
court imposed scheduling orders.” Geiserman, 893 F.2d at 792 (citing Bradley v. United
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States, 866 F.2d 120, 126 (5th Cir. 1989)). The Court also notes that neither Faulstick
nor Southern Tire requests a continuance in connection with Craig Silva’s untimely
designation. On the whole, the Court’s consideration of the Hamburger factors
counsels in favor of the exclusion of Craig Silva and a grant of the Motion to Strike [56].
II.

Motion for Summary Judgment [58]
A.

Standard of Review

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Where the burden of production at trial ultimately rests on the nonmovant, the movant
must merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation and internal quotation marks omitted). The nonmovant must then “come
forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue
is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels
v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
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be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is
mandatory “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d
759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)).
B.

Analysis

Southern Tire argues that Faulstick’s “claim fails as a matter of law and should
be dismissed with prejudice because the facts are uncontroverted that there has been
no ADEA violation.” (Def.’s Mot. for SJ [58] at ¶ 1.) The ADEA makes it unlawful for an
employer “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)(1). To establish a violation
of the ADEA, a claimant “must prove by a preponderance of the evidence (which may
be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer
decision.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119

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(2009)).2 “Direct evidence is evidence that, if believed, proves the fact of discriminatory
animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th
Cir. 1995)). When a plaintiff relies on circumstantial evidence to prove age
discrimination, courts within the Fifth Circuit apply the familiar burden-shifting framework
set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Jackson v. Cal-W. Packaging Corp.,
602 F.3d 374, 378 (5th Cir. 2010); Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005).
Faulstick contends there is direct evidence of age-based discrimination and that
his claim survives summary judgment under the McDonnell Douglas analysis. Each
contention will be addressed in turn. The Court will then address Southern Tire’s
alternative request for summary judgment as to certain of Faulstick’s damage claims.
1.

Direct Evidence

Faulstick characterizes two statements as direct evidence of his termination
being based on age. First, Faulstick cites James Duff’s alleged statement that Southern
Tire was looking for “long term employment” when Faulstick asked why he was being
released.3 Second, Faulstick points to references to his age contained in Southern

2

“‘[B]ut-for cause’ does not mean ‘sole cause.’” Leal v. McHugh, 731 F.3d 405, 415
(5th Cir. 2013) (finding persuasive the Tenth Circuit’s holding in Jones v. Oklahoma City
Public Schools, 617 F.3d 1273, 1277-78 (10th Cir. 2010), that multiple factors
contributing to an adverse employment decision will not negate the existence of an
ADEA violation if age was the deciding factor).
3

Faulstick’s Complaint, interrogatory responses, and deposition testimony reference
this purported statement. (See Compl. [1] at ¶ 13; Doc. No. [65-3] at pp. 6-7; Faulstick
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Tire’s position statement submitted to the EEOC on March 14, 2012: “Mr. Faulstick did
not want, at his age, to go through the 28 day intensive training class and re-learn how
to fly/operate a new plane, such as the Hawker 4000. . . . Insurance regulations would
not allow Mr. Al Faulstick, age 72, to fly and operate this much larger jet.” (Def.’s
Position Statement [66-2 at ECF pp. 2, 3]) (emphasis added).4
“In order for an age-based comment to be probative of an employer's
discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to
conclude without any inferences or presumptions that age was an impermissible factor
in the decision to terminate the employee.” Moss, 610 F.3d at 929 (citation omitted).
Remarks or comments may constitute evidence of discrimination if the comments “are:

Dep. [58-3] 56:19-59:16.) Southern Tire denies that James Duff made the statement.
The factual conflict over whether James Duff told Faulstick that Southern Tire was
looking for long term employment must be resolved in Faulstick’s favor at this stage of
the litigation. See Valle v. City of Houston, 613 F.3d 536, 540 n.1 (5th Cir. 2010)
(finding that the district court improperly resolved a factual dispute in favor of the party
seeking summary judgment).
4

Southern Tire’s position statement to the EEOC was prepared by its human
resources manager, Douglas Blackwell. On one hand, Defendant refers to this
statement as a mere letter, and “not an affidavit or other competent summary judgment
evidence.” (Def.’s Reply to Pl.’s Resp. in Opp. to Mot. for SJ [69] at p. 5.) On the other
hand, Defendant characterizes the document as “Southern Tire’s Position Statement” to
the EEOC. (Def.’s Mem. Brief in Supp. of Resp. in Opp. to Mot. for Sanctions [67] at p.
3.) Blackwell testified at deposition that he conducted an investigation and prepared the
statement in response to Faulstick’s EEOC charge of age discrimination. (See
Blackwell Dep. [66-11] 66:7-13, 75:15-20, 162:13-163:5.) Blackwell further testified that
he “respond[s] to all EEOC claims . . . .” (Blackwell Dep. [66-11] 167:20-21.) No
evidence has been presented showing that Blackwell was unauthorized to prepare the
position statement on behalf of Southern Tire. Accordingly, “Southern Tire’s Position
Statement” may be considered in the Court’s summary judgment analysis as an
opposing party’s statement under Federal Rule of Evidence 801(d)(2)(C) or (D). Cf.
FTC v. Hughes, 710 F. Supp. 1520, 1523 (N.D. Tex. 1989) (denying the defendant’s
motion to strike certain documents from the summary judgment record, which were
admissible under Rule 801(d)(2)(A) and (B)).
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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.” Id. Mere stray remarks in the workplace are not
actionable. See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999).
There is no need to apply the above-quoted four factors to Faulstick’s purported
direct evidence of age discrimination because it does not directly and unambiguously
evince discriminatory animus. Even Faulstick acknowledges that inferences and
presumptions are required to consider James Duff’s statement that Southern Tire was
looking for “long term employment” as proof of his termination being based on age. The
statement “implies that Southern Tire wanted someone younger who might be expected
to stay on the job longer. At the very least, a reasonable jury certainly should be
permitted to draw that inference within the context of all the evidence presented at trial.”
(Pl.’s Mem. in Opp. to Mot. for SJ [64] at p. 8) (emphasis added). The Fifth Circuit has
found comments similar to those attributed to James Duff to fall short of being
considered direct evidence of age-based discrimination. See Kilgore v. Brookeland
Indep. Sch. Dist., 538 Fed. Appx. 473, 476 (5th Cir. 2013) (agreeing with the district
court that a supervisor’s statement that the plaintiff was “eligible for retirement” failed to
constitute direct evidence of discrimination); Moss, 610 F.3d at 929 (same result with
respect to the statement that the defendant was looking to retain someone at a “more
junior level”); Sandstad, 309 F.3d at 897-98 (rejecting the plaintiff’s reliance on the
defendant’s plan to “identify . . . younger managers . . . for promotion to senior
management over the next 5+ years, ultimately replacing senior management” as direct
evidence of age-based animus since an inference was required to find that the
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defendant’s plan was to fire senior managers in favor of younger trainees).
The remark in Southern Tire’s EEOC position statement that “Faulstick did not
want, at his age, to go through the 28 day intensive training class and re-learn how to
fly/operate a new plane” could be interpreted to reflect the feelings of Faulstick, as
opposed to Southern Tire, with respect to the relationship between his age and the
company’s purchase of the Hawker 4000. (Def.’s Position Statement [66-2 at ECF p.
2].) Standing alone, the statement that “[i]nsurance regulations would not allow Mr. Al
Faulstick, age 72, to fly” arguably indicates that Faulstick’s age played a part in
Southern Tire’s employment decision. Yet, the following portion of the position
statement provides that Faulstick was terminated for cause: “Both previous pilots
[Faulstick and Esplin] on the Hawker 850 were terminated due to cause. The chief pilot
was terminated for flying with behavior deemed unsafe and disconcerting. Mr. Faulstick
was very aware of these actions and did not do anything to correct or bring these
improper actions to light.” (Def.’s Position Statement [66-2 at ECF p. 2].) In the Court’s
view, Southern Tire’s position statement, taken as a whole, is ambiguous and fails to
constitute direct evidence of age discrimination. Cf. Manaway v. Med. Ctr. of Se. Tex.,
430 Fed. Appx. 317, 324 (5th Cir. 2011) (holding that an excerpt from a supervisor’s
memorandum—construed in a vacuum—could be considered direct evidence of
discriminatory retaliation, but concluding that the excerpt was ambiguous and not
actionable since other portions of the memorandum addressed the plaintiff’s deficient
work performance). Thus, the Court must determine if Faulstick has proffered sufficient
circumstantial evidence to avoid summary judgment on his ADEA claim.
2.

Circumstantial Evidence
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Under the McDonnell Douglas framework, a claimant “relying on circumstantial
evidence must put forth a prima facie case, at which point the burden shifts to the
employer to provide a legitimate, nondiscriminatory reason for the employment
decision.” Moss, 610 F.3d at 922 (citation omitted). If the employer meets its burden,
the plaintiff is then afforded an opportunity to show that the employer’s reason is a
pretext for discrimination. Id. “Although intermediate evidentiary burdens shift back and
forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct.
2097, 147 L. Ed. 2d 105 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)).5
a.

Prima Facie Case

In order to establish a prima facie case of age discrimination, a plaintiff must
show: (1) he was discharged; (2) he was qualified for the position; (3) he was within the
protected class at the time of the discharge;6 and (4) he was either i) replaced by
someone outside the protected class, ii) replaced by someone younger, or iii) otherwise
discharged because of his age. Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th
Cir. 2011) (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)).

5

Some of the authorities cited in this section of the opinion involve federal statutes
other than the ADEA, such as Title VII, given the applicability of McDonnell Douglas to
various forms of employment discrimination. See, e.g., Hagan v. Echostar Satellite,
L.L.C., 529 F.3d 617, 624 (5th Cir. 2008); Pagano v. Frank, 983 F.2d 343, 347 n.5 (1st
Cir. 1993).
6

The ADEA protects individuals who are at least forty (40) years of age. 29 U.S.C. §
631(a).
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“Although the precise elements of this showing will vary depending on the
circumstances, the plaintiff’s burden at this stage of the case is not onerous.” Reed v.
Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (citation and internal quotation
marks omitted). Only the second element is in dispute between the parties for purposes
of summary judgment. Faulstick was 72 at the time of his termination, and he was
replaced by someone substantially younger, either Charles Oursler (age 34) or Jarrett
Howard (age 42).7
Southern Tire argues that Faulstick was unqualified for the position in question
because he was not type-rated or otherwise qualified to fly the Hawker 4000 at the time
of his termination. “[A] plaintiff challenging his termination or demotion can ordinarily
establish a prima facie case of age discrimination by showing that he continued to
possess the necessary qualifications for his job at the time of the adverse action.”
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). In Bienkowsi, the
Fifth Circuit explained this means the plaintiff has not suffered a physical disability, lost
a necessary license, or experienced some other circumstance rendering him unfit for
the job for which he was retained. Id. at 1506 n.3. This rule from Bienkowski has been
carried forward by several Fifth Circuit decisions.8 No claim is made that Faulstick

7

The fourth element is not negated by Jarrett Howard being in the protected class.
“Because the ADEA prohibits discrimination on the basis of age and not class
membership, the fact that a replacement is substantially younger than the plaintiff is a
far more reliable indicator of age discrimination than is the fact that the plaintiff was
replaced by someone outside the protected class.” O'Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 313, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996).
8

See, e.g., Holliday v. Commonwealth Brands, Inc., 483 Fed. Appx. 917, 921 (5th
Cir. 2012); Berquist v. Washington Mut. Bank, 500 F.3d 344, 350-51 (5th Cir. 2007);
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suffered from any physical disability or lost a professional license during his
employment with Southern Tire. It appears that Faulstick’s fitness or qualifications for
flying were substantially the same at the time of his hire and his subsequent termination.
Thus, Faulstick was sufficiently qualified for continued employment with Southern Tire
under Bienkowski.
Southern Tire’s argument regarding Faulstick’s qualifications focuses on the Fifth
Circuit’s decision in Martin v. Lennox International Inc., 342 Fed. Appx. 15 (5th Cir.
2009). Russell Martin (“Martin”) began working as a pilot for Lennox International Inc.
(“Lennox”) in 1995. Martin, 342 Fed. Appx. at 16. Martin suffered a heart attack in June
of 2005, which resulted in his being grounded by the Federal Aviation Administration
(“FAA”). Id. Under FAA regulations, Martin was grounded for a six-month recovery
period and had to be medically re-certified in order to return to piloting. Id. In January
of 2006, Martin informed Lennox that his medical re-certification had been delayed and
he was uncertain as to when he would be able to return to his former position. Id.
Martin was terminated on January 31, 2006. Id. Martin subsequently filed suit against
Lennox, alleging violations of the ADEA and other causes of action. Id. at 16-17. The
district court granted summary judgment in favor of Lennox and the Fifth Circuit
affirmed. Id. “Martin was not qualified to work as a pilot because he lacked the required
FAA certification at the time he was terminated.” Id. at 17. Consequently, Martin was
unable to establish a prime facie case of discrimination under the ADEA. Id. Martin’s

Young v. Harris Health Care, Inc., 226 F.3d 643, 2000 WL 1029180, at *3 (5th Cir. July
14, 2000); accord Seldon v. Grenada Lake Med. Ctr., No. 3:06cv012, 2007 WL
1098483, at *2 (N.D. Miss. Apr. 9, 2007).
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contention that his supervisor improperly refused to send him to flight training during his
medical leave of absence was rejected because, among other reasons, Martin was not
certified to fly at the time of the subject training. Id. at 18.
Martin is distinguishable from this case in several respects. Unlike Martin,
Faulstick did not suffer any physical illness during the course of his employment
resulting in the FAA taking away his certification to pilot airplanes. Furthermore,
Faulstick could still fly airplanes at the time of his termination. He just could not pilot the
Hawker 4000, which was no different from when he was initially hired by Southern Tire.
Also dissimilar to Martin, Faulstick was medically certified by the FAA when he was
precluded from receiving training to operate the Hawker 4000. Therefore, the Court is
unable to say that Southern Tire’s “refusal to allow . . . [Faulstick] to attend the training .
. . could not have affected his employment situation . . . .” Martin, 342 Fed. Appx. at 18.
Southern Tire’s suggestion that it would have terminated Faulstick due to safety
concerns even if he was qualified to fly the Hawker 4000, is better addressed at the
latter stages of the McDonnell Douglas analysis. See Berquist, 500 F.3d at 351
(evidence regarding the plaintiff’s performance issues “does not prove a lack of
qualifications at the prima facie stage”) (citations omitted).
Ultimately, Southern Tire’s argument against Faulstick establishing a prima facie
case is foreclosed by its failure to hold its other retained pilots to the same qualifications
standard. “An employer may establish job requirements, and rely on them in arguing
that a prima facie case is not established because the employee is not ‘qualified.’”
Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003). Yet, a plaintiff’s failure to meet
an objective employment requirement does not make him unqualified if the employer
-17-

refuses to apply the requirement to its other employees. Smith v. City of St. Martinville,
No. 13-31233, 2014 WL 3513208, at *4 (5th Cir. July 17, 2014) (citing Johnson, 351
F.3d at 620-21, 623-34); see also El-Bawab v. Jackson State Univ., No. 3:11cv553,
2013 WL 3884128, at *5 (S.D. Miss. July 26, 2013) (“[A] plaintiff may overcome a lack of
objective qualifications at the prima facie stage if he can establish that the employer
applied an objective requirement subjectively by promoting employees lacking the
qualification.”) (citation omitted). Clyde Esplin was permitted to receive training to fly
the Hawker 4000 before he was terminated, while Charles Oursler and Jarrett Howard
attended training in order to be certified for this airplane after they were retained by
Southern Tire. As a result, a fact issue exists as to whether Faulstick’s lack of
certification as to the Hawker 4000 rendered him unqualified for employment with
Southern Tire. Faulstick has made the “very minimal showing” required to proceed past
the prima face stage on his claim of age discrimination. Nichols v. Loral Vought Sys.
Corp., 81 F.3d 38, 41 (5th Cir. 1996) (citation omitted).
b.

Legitimate, Nondiscriminatory Reason

The defendant’s reason for the adverse employment action need not be
persuasive or credible. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509,
113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Sandstad, 309 F.3d at 898. Instead, the
defendant’s burden is to “produce evidence, ‘which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.’” Carlton
v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (quoting Hicks, 509 U.S. at
509).

-18-

Southern Tire asserts that Faulstick and Esplin were discharged because the
Duffs were dissatisfied with the performance of both pilots and because they feared for
their safety while flying with Faulstick and Esplin. “[T]he owners had multiple issues
with the Plaintiff’s performance including that he acquiesced in and failed to report the
unsafe practices of Esplin . . . .” (Def.’s Mem. Brief in Supp. of Mot. for SJ [59] at p. 15.)
The unsafe practices of Esplin that Faulstick purportedly failed to report included Esplin
falling asleep in the cockpit, and Esplin ascending and descending at such a rate of
speed that it caused the Duffs to suffer ear and sinus problems. Also, both Esplin and
Faulstick allegedly engaged in certain unsafe flying practices, such as failing to check
weather forecasts before taking off and flying with compromised tires. Segments of the
summary judgment record, taken as true, support these assertions. (See T. Duff Dep.
[58-1] 24:5-25:21, 27:17-28:11, 115:18-116:20, 182:12-183:2, 184:7-186:1; J. Duff Dep.
[58-7] 19:10-25, 21:2-23, 25:22-26:11, 29:2-18, 45:4-46:10; Def.’s Suppl. Resps. to Pl.’s
First Set of Interrogs. [58-4] at pp. 5-7.) The Court thus determines that Southern Tire
has articulated legitimate, nondiscriminatory reasons for the subject employment action.
Cf. Maestas v. Apple, Inc., 546 Fed. Appx. 422, 428 (5th Cir. 2013) (holding that the
plaintiff’s “work performance issues” constituted a legitimate, nondiscriminatory reason
for his termination); Gonzales v. Dupont Powder Coatings USA, Inc., 546 Fed. Appx.
378, 379 (5th Cir. 2013) (finding no error in the district court’s determination that the
defendant met its burden of production in relying on the plaintiff’s safety violations as
the basis for his discharge).
c.

Pretext

-19-

Plaintiff is now afforded a full and fair opportunity to show that the Defendant’s
proffered explanation is not true, i.e., that it is a pretext for discrimination. See Patrick v.
Ridge, 394 F.3d 311, 315, 320 n.34 (5th Cir. 2004) (citations omitted). Pretext may be
exposed “either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.” Moss, 610 F.3d at
922 (citation and internal quotation marks omitted). At this stage of the McDonnell
Douglas analysis, “the only question on summary judgment is whether there is a conflict
in substantial evidence to create a jury question regarding discrimination.” Haynes v.
Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000) (citing Shackelford v. Deloitte &
Touche, LLC, 190 F.3d 398, 404 (5th Cir. 1999)). Mere speculation or subjective beliefs
will not preclude summary judgment. See Price v. Marathon Cheese Corp., 119 F.3d
330, 337 (5th Cir. 1997) (citation omitted). “[A] plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves,
530 U.S. at 148. However, there may also be cases where a showing of pretext will be
insufficient to create an inference of “discrimination, such as when ‘the record
conclusively reveal[s] some other, nondiscriminatory reason for the employer’s decision
. . . .’” Machinchick, 398 F.3d at 351 n.14 (quoting Reeves, 530 U.S. at 148).
For the following reasons, the Court determines that there is a substantial
conflict in the evidence pertaining to the justification for Faulstick’s termination and his
ADEA claim will advance to trial. First, Southern Tire’s grounds have changed over
time. “[A]n employer’s inconsistent explanations for its employment decisions at
different times permits a jury to infer that the employer’s proffered reasons are
-20-

pretextual.” Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412
n.11 (5th Cir. 2007) (citing Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002)).9
Southern Tire’s March 14, 2012 position statement to the EEOC appears to identify
three bases for Faulstick’s discharge: (i) “Faulstick did not want, at his age, to go
through the 28 day intensive training class and re-learn how to fly/operate a new plane”;
(ii) Faulstick was terminated for cause because he failed to correct or report Esplin’s
unsafe practices; and (iii) insurance regulations would not permit “Faulstick, age 72, to
fly and operate this much larger jet.” (Def.’s Position Statement [66-2 at ECF pp. 2-3].)
However, Southern Tire’s second position statement to the EEOC, dated July 25, 2012,
advises that Faulstick “was terminated due to violations of safety rules and for no other
reason”; admits there are no known insurance “regulations preventing . . . [Faulstick]
from flying a private/corporate jet due to his age”; and, does not rely upon Faulstick’s
purported lack of interest in receiving training to fly the Hawker 4000 as a basis for its
employment decision. (Def.’s Second Position Statement [64-6 at ECF pp. 5, 8].)10
Southern Tire’s February 5, 2013 Answer [5], November 22, 2013 Responses to

9

See also Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 560 Fed. Appx.
328, 336-37 (5th Cir. 2014) (vacating, in part, the district court’s grant of summary
judgment where there was a conflict in the defendant’s reasons for not renewing an
administrative assistant’s employment); King v. Bd. of Trs. of State Insts. of Higher
Learning, No. 3:11cv403, 2014 WL 1276477, at *6 (S.D. Miss. Mar. 27, 2014)
(“[E]vidence of a changing story raises an issue of fact as to the basis of Defendants’
decision.”) (citations omitted).
10

The Court may consider this second position statement, which Southern Tire
“believed to be true and correct in all respects” (Doc. No. [64-6] at ECF p. 3 n.1]), in
ruling on summary judgment since it, like Southern Tire’s original position statement,
falls under the scope of Federal Rule of Evidence 801(d)(2)(C) or (D). See supra note
4.
-21-

Plaintiff’s Requests for Admissions [62-8], and December 10, 2013 Responses to
Plaintiff’s First Set of Interrogatories [62-7] largely correspond with its second position
statement to the EEOC.11 Yet, in March and April of 2014, Southern Tire’s
representatives testified at deposition that Faulstick was no longer employed by
Southern Tire primarily because he did not want to move up to the larger Hawker 4000,
a position which Southern Tire appeared to have previously abandoned. The
representatives further provided that Faulstick voluntary left Southern Tire, as opposed
to being terminated. The following excerpts from the depositions are instructive:
Q.

It is your position that Southern Tire Mart fired Al Faulstick; is that right?

A.

My position is that every time we looked at a new airplane, Al basically
said he didn’t want to move up into that type plane. We went from a very
light jet to a light jet to a medium jet, and at the time we decided to make a
change with Al and him with us. He just didn’t want to move up to it.

Q.

Okay. So he was fired?

A.

Al had been telling me he didn’t want to move up to the other jet, so I can’t
say he was fired or say he quit. If I fire somebody, I don’t normally give
them four months’ severance.

Q.

So then he wasn’t fired? I’m just trying to --

A.

I can’t say, sir.

Q.

You can’t say. All right.

A.

I’d say it was a mutual agreement.
....

11

Southern Tire’s Answer and Responses to Requests for Admissions both admit
that Faulstick’s employment was terminated. Southern Tire’s Responses to Plaintiff’s
First Set of Interrogatories state that Faulstick was “terminated for safety violations.”
(Doc. No. [62-7] at p. 4.)
-22-

Q.

Okay. So when this asks for all the reasons for Mr. Faulstick’s
termination, what’s being stated here in this paragraph at the bottom of 4
on to the next page all deal with incidents involving Mr. Esplin and his kids
around the hanger site. These were all issues you only came to hear
about after Mr. Faulstick’s [sic] was terminated?

A.

I cannot answer that question because I can’t say that Mr. Faulstick was
terminated.

Q.

Okay.

A.

Mr. Faulstick continually told me he did not want to move up to a larger
airplane.

(T. Duff Dep. [58-1] 29:8-30:1, 80:21-81:11.)
A.

The only pilot that I have ever terminated was Clyde Esplin. That has
been the only pilot that I have ever terminated. Al was not terminated.

Q.

Okay. And why do you say he was not terminated?

A.

I don’t know. He was never terminated. We were told that -- you know,
most of this was handled with my brother, but from my recollection, he
was -- he decided that he didn’t want to make the transition to the bigger
plane because our -- we just needed -- our missions were longer, so we
needed a larger plane, and we decided to get one.
I was very unhappy with the way things were going with both of
them. And when he kind of made it known that he didn’t want to make the
transition to the other plane, the bigger plane, and I was very comfortable
with that. But he was never terminated by me or anybody that I know of.
....

Q.

Do you deny the request for admission, as far as you know, based on your
own personal knowledge, that Mr. Faulstick was involuntarily terminated?

A.

Al was never fired by Tommy or myself.
....

Q.

Okay. So you don’t know if he was terminated for safety violations?

A.

Not by me.
....
-23-

Q.

Do you agree or disagree with the statement that Al Faulstick was
terminated on October 1st, 2011 due to violation of safety rules?

A.

No. I agree that he didn’t want to make the transition, and I agree I didn’t
know about the safety rules until Al told us what was going on.

Q.

Okay. That was after his employment ended?

A.

Well, yes. He was getting paid, but he no longer had a plane.

Q.

So the decision not to let him in the plane had nothing to do with any
violation of safety rules? It was because he --

A.

Chose not to.

Q.

-- chose not to?

A.

Sure.

(J. Duff Dep. [58-7] 14:17-15:11, 34:3-7, 54:5-7, 97:19-98:11.)
Q.

Okay. So is it your understanding that Mr. Faulstick was terminated?

A.

You know, we didn't -- if I was going to explain, I would say that Mr. Al left
voluntarily, for the fact that he was not willing to move up to a mid-sized jet
and go through 28, or whatever days, of intensive training. I don't know
what they do. But he was not willing to move up to that and we didn't have
anything else for him that would pay him the kind of money that he
wanted.
And we considered it. We considered trying to find somewhere for
him, but we didn't have anything that -- I mean, our system managers
don't even make that kind of money, more or less a greeter or a chauffeur,
or whatever you want to call it.
So on November the 30th is when I would have told Al, me,
personally, that we don't have anything here for you, Al.

Q.

I understand that, Mr. Blackwell, but when was -- All right. Let me ask you
this: Was Mr. Faulstick terminated, and if so, when was he terminated?

A.

I don't like the word -- what you're trying to imply here, terminated. My
feeling is that Al voluntarily left of his own accord because he wasn't
willing to move up to a mid-sized jet.
....
-24-

Q.

Do you ever recall either owner saying, we are firing Al?

A.

Not until after we got the EEOC charges and all and the investigation
started. Then some things came up that if I would have been involved in
them early into it, then there probably would have been the term, you're
fired, Al.

Q.

I understand, but that's not really the question, is it? I mean, the question
is --

A.

I'm not sure what your question is.

Q.

Well, the question is: Did the owners ever tell you, we are firing Al
Faulstick?

A.

I don't remember them ever telling me that. I remember them telling me
that he will no longer be a pilot for us because he's not willing to move up
to a mid-sized jet. I do remember them telling me that. And I do
remember them telling me that he wants another position with the
company.
....

Q.

So if they didn't terminate him then, then when it says here he was
terminated on October 1st, 2011, then that's not correct?

A.

I don't believe that he was terminated October the 1st, 2011.

Q.

So that portion of that response is not correct?

A.

It's misleading.

Q.

Okay. Misleading.

A.

Not necessarily incorrect, but misleading.
....

Q.

All right. So I'm going to ask the question again. It says, Both were
terminated for safety violations. Was Al terminated for safety violations?

A.

We didn't have to terminate Al, and I'm going to tell you again, because he
voluntarily did not want to move up to a mid-sized jet. So, therefore, he
left on his own accord.
-25-

Q.

So he was not terminated for safety violations?

A.

Not by Southern Tire Mart at that time. But, again, after March when all
these other things came out, he would have definitely been terminated for
all these safety violations.

Q.

I think I --

A.

But, again, in November, Tommy and Jim both were aware after he
poured his soul out that there were safety violations. So, you know, they
didn't have to deal with it because he was voluntarily leaving.
....

Q.

Do you have a memory of ever giving information that Mr. Faulstick was
terminated for safety violations?

A.

Only after the EEOC charges came in and we investigated all the matters
into his age discrimination case.
....

Q.

Okay. And, again, I know we've gone through it a lot, but I just want to
make sure I'm clear again. It's your understanding that Mr. Faulstick was
not terminated for safety violations, right?

A.

And let me answer it one more time. That because Al was not willing to
move up to the mid-sized jet, they didn't have to deal with these safety
issues with Al. But, again, if Al would have said, no, I want to move up to
the mid-sized jet, I want to and I'm excited about it, then they would have
had to deal with these safety issues.

Q.

And what would they have done?

A.

They probably would have terminated him.

(Blackwell Dep. [66-11] 45:16-46:17, 48:24-49:17, 50:8-18, 55:18-56:12, 62:15-20,
125:14-126:6.) Also in March of 2014, Southern Tire served supplemental interrogatory
responses that omitted the references to Faulstick being “terminated,” which were
contained in its original responses. (See Doc. No. [58-4].) The preceding twists and

-26-

turns “raise[] an issue of fact as to the basis” for Southern Tire’s employment decision.
King, 2014 WL 1276477, at *6.
Second, the summary judgment record evinces facts competing with the
assertion made in the depositions of Southern Tire’s representatives that Faulstick was
no longer employed by the company primarily because he did not want to move up to a
larger airplane. Faulstick submitted an affidavit in the EEOC proceeding providing that
“[a]t no time did I state to anyone at Southern Tire Mart, LLC that I did not want to take
the training course for the new aircraft . . . .” (Faulstick Aff. [64-5] at ¶ 6.) Faulstick
further stated that arrangements had been made for him to attend the training course,
including airline reservations, prior to Thomas Duff advising that he would not be
attending the class. (See Faulstick Aff. [64-5] at ¶¶ 7-9.) At deposition, Faulstick
confirmed the accuracy of these averments; stated that he never told Douglas Blackwell
or Southern Tire’s owners that he did not want to move up to a new airplane; and
testified that he “was looking forward to” the new airplane “[b]ecause it costs a lot of
money and it’s a feather in a pilot’s cap to upgrade into a larger aircraft . . . .” (Faulstick
Dep. [58-3] 76:11-25, 165:19-166:20.) Faulstick further testified that he told Thomas
Duff he was looking forward to the larger airplane many times. (See Faulstick Dep. [583] 76:21-77:4.) “[A] genuine issue of material fact is obviously present where one party
testifies to one account of the matter in interest and the other party swears otherwise.”
Ill. Cent. R.R. Co. v. Harried, 681 F. Supp. 2d 772, 775 (S.D. Miss. 2009) (citation
omitted); see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir.
2000) (holding that it was for the jury to weigh and choose between the parties’
conflicting versions of the plaintiff’s termination).
-27-

Third, several circumstances militate against Faulstick’s purported safety and
performance issues being considered the basis for his discharge from Southern Tire. It
seems that Southern Tire was not made aware of many of the alleged safety violations
it sometimes relies on in support of its termination decision, such as Esplin and
Faulstick failing to obtain clearance before taking off and Faulstick acquiescing to Esplin
allowing his children to play around the aircraft, until after the decision was made that
Faulstick would no longer be piloting for the company. (T. Duff Dep. [58-1] 30:14-31:12,
73:23-74:8, 80:3-20; J. Duff. Dep. [58-7] 97:8-98:5; Blackwell Dep. [66-11] 48:24-49:5,
85:9-24, 88:4-89:2.) An “employer could not have been motivated by knowledge it did
not have and it cannot now claim the employee was fired for the nondiscriminatory
reason.” McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 356-57, 360, 115 S.
Ct. 879, 130 L. Ed. 2d 852 (1995) (holding that after-acquired evidence may weigh upon
a plaintiff’s ability to recover certain damages, but it does not foreclose all relief under
the ADEA); see also Patrick v. Ridge, 394 F.3d 311, 318-20 (5th Cir. 2004) (rejecting
the defendant’s reliance on after-acquired evidence at the second stage of the
McDonnell Douglas inquiry).12 The following particulars stand in stark contrast to
allegations of safety violations, such as flying through thunderstorms and flying with
unsafe tires, that Southern Tire’s representatives claim knowledge of prior to Faulstick’s
12

Southern Tire cites to Wilks v. Fedex Ground Package System, Inc., 359 F. Supp.
2d 539 (S.D. Miss. 2005), in support of its argument that it can rely on evidence
obtained after the adverse employment decision. Wilks is inapposite since it concerned
a refusal to hire, the plaintiff did not proceed past the prima facie stage, and the afteracquired evidence (plaintiff’s felony conviction) was undisputed. See 359 F. Supp. at
542-43. Faulstick does not admit committing any safety violations and he has
presented sufficient evidence to require Southern Tire to produce legitimate,
nondiscriminatory reasons for its employment decision.
-28-

termination:
!

Southern Tire has admitted that Faulstick “did not receive any reprimands
or written notices during his employment . . . .”13

!

On November 19, 2011, after Faulstick’s employment “was terminated,
effective October 1, 2011,”14 Faulstick was permitted to step in and serve
as co-pilot on the Hawker 4000 for a flight carrying the Duffs to Oxford,
Mississippi, when a temporary pilot was unavailable.15

!

On December 28, 2011, Douglas Blackwell (Southern Tire’s human
resource manger, who initially investigated and responded to Faulstick’s
EEOC complaint) authored a letter on Southern Tire Mart’s letterhead
advising that “Mr. Faulstick has been an exemplary employee during his
tenure here at Southern Tire Mart, displaying great dependability and the
utmost skill in his knowledge as one of our pilots. We would recommend
Mr. Faulstick, without hesitation, for any position that you may have
available.”16

Courts have found similar facts to counsel against summary judgment. See Russell,
235 F.3d at 224 (reversing, in part, the district court’s grant of the defendant’s motion for
judgment as a matter of law where the plaintiff received a favorable evaluation shortly
before her termination and did not receive any formal warnings); Matthews v. City of
West Point, Miss., 863 F. Supp. 2d 572, 600 (N.D. Miss. 2012) (considering a letter of

13

(Def.’s Resps. to Pl.’s Reqs. for Admis. [62-8] at p. 6.)

14

(Def.’s Resps. to Pl.’s Reqs. for Admis. [62-8] at p. 3.)

15

(See Faulstick Aff. [64-5] at ¶ 17; Def.’s Resps. to Pl.’s Reqs. for Admis. [62-8] at
p. 5; T. Duff. Dep. [58-1] 50:2-54:7; J. Duff. [58-7] 36:25-41:22.)
16

(See Doc. No. [64-2].) Blackwell confirmed writing this letter of recommendation at
his deposition. (See Blackwell Dep. [66-11] 247:11-24.) When questioned if Blackwell
had authority to speak for Southern Tire, Thomas Duff testified that “[h]e certainly has
authorization to send out a letter if he wants to for somebody.” (T. Duff. Dep. [58-1]
187:8-12.) Blackwell’s testimony that he had only limited information when he wrote the
letter, and Thomas Duff’s disagreement with the content of the letter can be weighed by
the jury at trial.
-29-

recommendation that attested to the plaintiff’s “superb talents” in concluding that a
material fact dispute existed as to the matter of pretext); Chavez v. Hydril Co., No.
Civ.A. 301cv1494M, 2003 WL 22075740, at *5 (N.D. Tex. Feb. 18, 2003) (denying
summary judgment where the plaintiff was offered a temporary position after he was
laid-off by the defendant).
Fourth, certain comments purportedly made by the Duffs near the time of
Faulstick’s termination may be construed as additional circumstantial evidence of
pretext. “An oral statement exhibiting discriminatory animus may be used to
demonstrate pretext or, as is the case here, it may be used as additional evidence of
discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003) (citing Russell,
235 F.3d at 225). Remarks or comments may give rise to an inference of discrimination
if (1) they demonstrate discriminatory animus and (2) they are made by the individual
primarily responsible for the subject employment decision or by an individual with
influence over the decisionmaker. Id.17 As noted above, Faulstick claims that James
Duff told him Southern Tire was looking for “long term employment” when Faulstick
asked why he was being discharged. It is also alleged that Thomas Duff advised
Faulstick that he was being replaced by a “younger man” in the telephone conversation
where Faulstick was notified of his termination. (Faulstick Dep. [58-3] 70:5-71:23.)
Both Thomas Duff and James Duff “were involved with or otherwise responsible for
making the decision to terminate Mr. Faulstick’s employment . . . .” (Def.’s Resps. to

17

The four-part test cited in section II.B.1. of this opinion only applies when remarks
are alleged to constitute direct evidence of discrimination. See Reed, 701 F.3d at 441
(citations omitted).
-30-

Pl.’s First Set of Interrogs. [62-7] at p. 3.) The Duffs’ alleged statements and the
inferences to be drawn therefrom, construed in favor of Faulstick, reflect age-related
bias. Cf. Suggs v. Cent. Oil of Baton Rouge, LLC, No. 13-25-RLB, 2014 WL 3037213,
at *8 (M.D. La. July 3, 2014) (holding that workplace comments reflecting a bias against
older workers constituted circumstantial evidence of age discrimination); Stippick v.
Stone & Webster Servs., LLC, No. H-10-0290, 2011 WL 564081, at *8 (S.D. Tex. Feb.
8, 2011) (“[W]here a remark is capable of both a discriminatory and a benign inference,
in the summary judgment context the inference must be drawn in favor of the
nonmovant.”) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 683 (5th Cir. 2001)).
The Duffs’ purported statements are also not inadmissible hearsay given their subject
matter and the speakers’ positions within Southern Tire. See Fed. R. Evid.
801(d)(2)(D); Suggs, 2014 WL 3037213, at *8.
Southern Tire’s contention that Faulstick cannot demonstrate discriminatory
animus because the Duffs, who are also protected by the ADEA, were the same
individuals who hired Faulstick when he was 66 fails to mandate a grant of summary
judgment. The jury may find these circumstances to be persuasive, but the Court is
unable to assign them controlling weight at this stage of the proceedings. See Russell,
235 F.3d at 229 nn.16-17 (the jury could consider the defendant’s assertion that the
same person hired and fired the plaintiff, as well as the fact that the plaintiff and her
supervisor were of similar ages); Young, 2000 WL 1029180, at *4 n.28 (“Contrary to
HHC’s assertion, the fact that Harris, Marks, and Hebert [Young’s superiors] are all
Caucasian and over forty years old, while persuasive, does not conclusively establish

-31-

that Young [a 51-year-old Caucasian female] was not terminated because of her age
and/or race.”) (citation omitted).
Viewing the facts in Faulstick’s favor, the Court determines that his ADEA claim
should proceed to trial. Simply stated, there are genuine issues of material fact as to
whether Southern Tire terminated Faulstick because of his age.
3.

Liquidated Damages

A plaintiff may recover liquidated damages up to the amount of his or her back
pay award for a willful violation of the ADEA. See Smith v. Berry Co., 165 F.3d 390,
395 (5th Cir. 1999) (citing 29 U.S.C. § 626(b)). A violation of the ADEA “is willful ‘if the
employer knew or showed reckless disregard for the matter of whether its conduct was
prohibited by the ADEA.’” Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 398 (5th Cir.
2002) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 1708, 123
L. Ed. 2d 338 (1993)). The employer’s conduct need not be considered outrageous in
order for a willful violation of the ADEA to exist. Id. Nonetheless, liquidated damages
are punitive in nature and should be reserved for egregious ADEA violations. Hansard
v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir. 1989) (citing Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S. Ct. 613, 83 L. Ed. 2d 523
(1985)).
Given the disputed nature of the factual record before the Court and the parties’
limited briefing regarding this issue, the Court will also allow Faulstick’s request for
liquidated damages under the ADEA to proceed to trial. The Court will be in a better
position to decide whether the jury should be authorized to award these damages after
the factual record has been developed through trial testimony and related evidentiary
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submissions. Moreover, Southern Tire certainly cannot claim ignorance of the
prohibition against age discrimination in employment since its Employee Handbook
“prohibit[s] harassment, discrimination, and retaliation based on age.”18 Cf. EEOC v.
DynMcDermott, 537 Fed. Appx. 437, 449 (5th Cir. 2013) (finding that the district court
erred in granting summary judgment on the plaintiff’s request for liquidated damages
under the ADEA where two supervisors obviously knew that age discrimination was
illegal); Tyler, 304 F.3d at 398-99 (considering the defendant’s awareness of the
applicability of the ADEA per its policy manual in determining that there was sufficient
evidence for the jury to award liquidated damages).
4.

Certain Compensatory Damages

Southern Tire also seeks summary judgment on Faulstick’s request for
“compensatory damages for pain and suffering, emotional distress, mental anguish, loss
of reputation, embarrassment, and humiliation . . . .” (Compl. [1] at ¶ 32.) Faulstick’s
opposition to summary judgment fails to address this request for dismissal. The Court
thus finds that Faulstick has abandoned any claim for these types of compensatory
damages.19 Even overlooking the Plaintiff’s failure to respond to this dismissal request,
it is well established that compensation for non-economic losses, such as pain and

18

(Def.’s Mem. Brief in Supp. of Mot. for SJ [59] at p. 2.)

19

See Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 (5th Cir. 2008)
(finding that plaintiffs abandoned their claim for tortious breach of contract when their
summary judgment response was limited to their bad faith claim); Black v. N. Panola
Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (holding that the plaintiff’s failure to
pursue a claim beyond her complaint resulted in abandonment); Cinel v. Connick, 15
F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately briefs an issue is
considered to have abandoned the claim.”) (citation omitted).
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suffering and mental anguish, is unavailable under the ADEA.20 Therefore, this portion
of the summary judgment motion is well taken and Faulstick’s damage claims asserted
in Paragraph 32 of the Complaint will be dismissed.
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that Southern Tire’s Motion to Strike [56] is
granted and Craig A. Silva, CPA is precluded from offering expert testimony at trial.
IT IS FURTHER ORDERED AND ADJUDGED that Southern Tire’s Motion for
Summary Judgment [58] is granted in part and denied in part. Plaintiff’s demand for
compensatory damages for pain and suffering, emotional distress, mental anguish, loss
of reputation, embarrassment, and humiliation is dismissed with prejudice. The motion
is otherwise denied.
SO ORDERED AND ADJUDGED this the 11th day of August, 2014.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

20

See, e.g., Comm’r v. Schleier, 515 U.S. 323, 326, 115 S. Ct. 2159, 132 L. Ed. 2d
294 (1995); Smith, 165 F.3d at 396; Dean v. Am. Sec. Ins. Co., 559 F.2d 1036, 1038
(5th Cir. 1977); Hall v. Smurfit-Stone Container Enters., Inc., No. 3:07cv0501-G, 2007
WL 2254942, at *2 (N.D. Tex. July 23, 2007); Dowlearn v. Baker Oil Tools, Inc., No.
Civ.A. 97-2787, 1997 WL 767721, at *3 (E.D. La. Dec. 10, 1997).
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