Case Information
*1 Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM: [*]
Plаintiff-appellant Danny Houk appeals the district court’s grant of summary judgment to defendant-appellee Peoploungers, Inc. (“Peoploungers”), arguing that genuine issues of material fact remain with regard to Houk’s claim of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. [1] Houk was fired by Peoploungers for *2 leaving work early one day without permission, but contends that he did have permission from a supervisor and that this factual dispute--along with his replacement by a worker nine years younger than him--forestalls summary judgment.
We review a grаnt of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party and
drawing all rеasonable inferences in that party’s favor. See
Crawford v. Formosa Plastics Corp.,
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
Under the burden-shifting framework for discrimination
claims established by McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973), Houk has the initial burden of establishing а
prima facie case of discrimination by showing that “(1) he was
discharged; (2) he was qualified for the positiоn; (3) he was
within the protected class at the time of discharge; and (4) he
was either i) replaced by sоmeone outside the protected class,
ii) replaced by someone younger, or iii) otherwise discharged
defamation, but Houk conceded this claim in his reply brief.
*3
because of his age.” Bodenheimer v. PPG Indus., Inc., 5 F.3d
955, 957 (5th Cir. 1993). If Houk meets these requirements, “a
presumption of discrimination arises which the defendant must
then rеbut by articulating a legitimate, nondiscriminatory reason
for the discharge.” Id. If Peoploungers satisfies this burden,
“the presumption of age discrimination established by [Houk’s]
prima facie case dissolves,” id., and Houk must show еither that
(1) Peoploungers’s reason is not true, but is instead a pretext
for age discrimination, or (2) Peoploungers’s reason, while true,
is only one reason for its actions, and Houk’s age was a
motivating factor for his discharge. Rachid v. Jack in the Box,
Inc.,
Assuming arguendo that Houk established a prima facie case
of age discrimination, the district court properly recognized
that no genuine issue of material fаct exists as to whether
Peoploungers’s given reason for the discharge was either
pretextual оr accompanied by an age-based reason. Although the
parties dispute whether and under what terms Houk’s direct
supervisor gave Houk permission to leave early, the only evidence
presented as to the managers who made the decision to fire Houk
indicates that they believed that Houk did not have permission to
leave. Cf. Mayberry v. Vought Aircraft Co.,
Houk points out that he was replaсed with a worker who was
nine years younger than him. Houk’s successor, however, was not
hired or promoted into the job, but was merely another worker
already in Houk’s department who was assigned to take ovеr Houk’s
workload after the firing. Further, Houk was fired at age 48,
only a year and a half after he was hired at age 46 by one of the
same managers ultimately involved in the decision to fire him,
making his claim of age discrimination even more tenuous. Cf.
Brown v. CSC Logic, Inc.,
Finally, despite the importance that Houk places on the less severe, 30-dаy probation given to the two younger workers that left with Houk on the day in question, there is simply no evidencе indicating that the different treatment was based on age. One of the younger workers, Houk’s son, left with Houk because Houk was his ride, and the other worker was Houk’s work *5 partner, whose work would have been less efficient without Houk. More significantly, neither of those workers had a history of walking off the job without permission, whereas Houk admits that he quit without notice and walked off the job without permission in an earlier stint with Peoploungеrs in 2001, providing a legitimate justification for punishing Houk more harshly this time around.
Because Houk points to no evidence that Peoploungers’s reason for firing him is a pretext for age discrimination or that age wаs a motivating factor in his discharge, the district court properly granted summary judgment to Peoploungers.
AFFIRMED. Costs shall be borne by plaintiff-appellant.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent exceрt under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] Houk initially appealed the district court’s grant of summary judgment to Peoploungers on his state law claim for