Hoppens v. General NutritionHoppens v. General Nutrition
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Marilyn Jean Hoppens appeals the district court’s grant of summary judgment to General Nutrition Center (GNC) in her age discrimination suit for her discharge. The district court found that Hoppens failed to raise a fact question on whether GNC’s nondiscriminatory reason for her termination was a pretext for discrimination. We affirm.
On February 13, 1995, Appellee GNC terminated Appellant Hoppens who, at age 51, was a senior store manager in Pasadena, Texas. According to GNC, Hoppens was terminated because a January deposit from her store was lost when a subordinate dropped the deposit into the envelope drop at the bank rather than the locking dropbox as she was told was allowable by Hoppens. Hoppens claims a bank official told her that this was acceptable, and her supervisor, Al Demeke, told her to follow the bank’s instructions on deposits. Initially two deposits were missing, but one was later found jammed into the envelope drop slot. The other deposit, which contained about $1400, was never found.
Craig Kidd from GNC’s security department investigated the loss. Upon Kidd’s transfer to the area, Hoppens claims that Demeke told her, well before the loss of the deposits, that Kidd was responsible for the termination of five “long term” managers in the San Antonio area. Hoppens also claims that Kidd subjected her to excessive scrutiny and tried to set her up to make mistakes.
As a result of the investigation of the lost deposit, Demeke terminated Hoppens and the subordinate who had made the drops for failing to follow company cash handling procedures by not using the locking dropbox. Hoppens was discharged specifically for failing to ensure that company policy was complied with in making
Hoppens compares her treatment by GNC to that of Toni Lane, a 32-year-old manager, who failed to properly follow company procedure for refunds and cancellations. Lane received a written warning for this violation as was recommended by company policy.
Hoppens filed suit in the United States District Court for the Southern District of Texas under the Age Discrimination in Employment Act (ADEA),
II. STANDARD OF REVIEW
We review the grant of summary judgment de novo, applying the same criteria used by the district court in the first instance. Texas Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th Cir. 1996). Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
III. DISCUSSION
Hoppens contends that there exist genuine issues of material fact as to whether GNC produced a legitimate nondiscriminatory reason for her discharge and as to whether or not this reason was merely a pretext for age discrimination. She therefore argues that the district court erred in granting GNC’s motion for summary judgment.
A. The Shifting Burdens of ADEA Claims
In the Title VII context, the Supreme Court has developed a burden-shifting framework for the presentation of proof. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Fifth Circuit has adopted this framework for ADEA cases as well. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 & n.3 (5th Cir. 1996) (en banc). First, the plaintiff must present a prima facie case of age discrimination, which is established when the plaintiff
This inference shifts the burden of production to the defendant who must then produce evidence of a legitimate, nondiscriminatory reason for the action it took to rebut the inference of unlawful discrimination. Rhodes, 75 F.3d at 992-93. The employer’s burden of production is met by evidence that, “if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Hicks, 509 U.S. at 507 (citing Burdine, 450 U.S. at 254-55 & n.8). The presumption of discrimination only shifts the burden of production, with the burden of persuasion remaining on the plaintiff. Hicks, 509 U.S. at 507. Once the employer has met the burden of production, the inference of unlawful discrimination raised by the prima facie case disappears. Burdine, 450 U.S. at 255 & n.10; Rhodes, 75 F.3d at 993.
With the inference of unlawful discrimination gone, the plaintiff must demonstrate that the employer’s stated reason was
B. GNC’s Articulated Nondiscriminatory Reason for Hoppens’s Discharge
We can begin our analysis with GNC’s nondiscriminatory reason for Hoppens’s discharge because GNC does not challenge whether Hoppens established a prima facie case on appeal. As the district court noted, GNC produced evidence of a legitimate,
The above evidence, if believed, would support a finding that age discrimination was not the cause of Hoppens’s discharge. GNC has met its burden of production,1 and therefore, the inference of unlawful discrimination disappears. Hoppens argues that GNC has failed to meet its burden of production because GNC’s reason and evidence are “unworthy of credence,” but Hicks states that the defendant’s burden is met by evidence that if believed would support the inference and is not subject to a credibility assessment at this stage. Hicks, 509 U.S. at 509.
C. Hoppens’s Evidence of Pretext for Age Discrimination
The majority of Hoppens’s evidence relates to how she was treated unfairly by Kidd before and during the investigation. She notes that the policy for termination for loss of a deposit provides for flexibility in the case of extenuating circumstances, but she was not given the benefit of such provision despite her long service to GNC. She notes the ambiguity in the written policy as to whether it applies just to bank bags or also to the dropboxes at banks. One bank official surmised that the deposit was lost when someone fished it out of the envelope slot. The above evidence does raise a factual question as to whether Hoppens actually violated GNC’s policies, which in turn raises the factual question of whether GNC’s stated reason for her discharge was the actual reason.
Proving that GNC’s articulated reason is false, however, is not sufficient to defeat summary judgment because such proof does not necessarily show that the true reason was related to age. See Hicks, 509 U.S. at 524; see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (holding that employer’s
To establish discriminatory motive through the different treatment of another employee, that employee must have been treated differently in “nearly identical” circumstances. Mayberry, 55 F.3d at 1090; see also EEOC v. Brown & Root, Inc., 688 F.2d 338, 339-40 (5th Cir. 1982) (comparable employees had the exact same problem as plaintiff--“freezing” when working up high); Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981) (comparable employees had committed exact same violation--absenteeism). The nearly identical circumstances can include situations where the two comparable employees did not commit the same act but committed acts of comparable seriousness. See McDonnell Douglas, 411 U.S. at 804.
Hoppens, on the other hand, characterizes Lane’s violation as “failure to properly handle refund transactions” and as a cash handling violation for which discharge is the recommended action. By classifying the violation differently, Hoppens attempts to raise Lane’s violation to a level of seriousness comparable to her own violation in terms of the recommended disciplinary action.
Lane’s circumstances are not nearly identical to Hoppens’s circumstances. Hoppens has presented no evidence indicating that Lane’s conduct resulted in any loss, and Hoppens does not dispute that Lane did not lose a deposit. The fact that Hoppens’s
Demeke’s comment about Kidd does not show discrimination based on age. No evidence is presented on the circumstances of the discharge of the “long term” managers. The comment by Demeke does not suggest that the managers were discharged for anything other than legitimate reasons. Without more, the comment has such little probative value that it does not give rise to a reasonable inference of discrimination. We therefore conclude that Hoppens has presented no evidence creating a reasonable inference as to whether age was a determinative factor in her discharge, and thus she has failed to show a genuine issue of material fact about whether GNC’s reason is a pretext for discrimination.4
For the foregoing reasons, we AFFIRM the judgment of the district court.