This appeal arises from the district court’s grant of summary judgment in favor of Costco Wholesale Corporation (“Costco”) on Erich Kelly’s claim of age discrimination. We AFFIRM the district court’s judgment.
Facts and Proceedings
Erich Kelly was born on January 29, 1958, and worked for Costco between December 2001 and May 2011. He worked as a meat manager from June 2002 to July 2009, but he was demoted when an audit discovered that he falsified paperwork about sanitation procedures. Even though Costco could have terminated Kelly for this offense, instead it demoted him to cashier and gave him a permanent counseling notice. Despite the offense, he was eventually promoted to the position of meat lead, reporting to meat manager Mark Crosson.
Shortly before Kelly’s termination, on May 16, 2011, Costco’s Texas Regional Vice President Richard Webb noticed that, while the “Texas Region as a whole had increased its profit margins over the previous four reporting periods, the meat department at the Northwest San Antonio warehouse had lost significant ground during the same timeframe,” with a 35 percent decrease in profitability. Therefore, on May 19, Costco’s Regional Meat Manager Art Lozano performed an unannounced inspection of the meat department where Kelly worked. “During the [inspection], he found numerous violations of Costco policies and standards, including overproducing [meat], failing to use production logs, failure to tenderize meat as required, and failing to trim salmon filets, among other things.” Kelly was not working on the day of this inspection.
Following the inspection, Romo and the Assistant Warehouse Manager interviewed the meat department employees, including Kelly. Kelly denied responsibility for the problems with both the meat-trimming and failing to rewrap bloody packages by saying that “[he] wasn’t there,” because he was not working the day of the inspection. Some of the meat labels, however, showed that the meat had been cut on days that Kelly had worked. Furthermore, one of Kelly’s co-workers told managers that he had seen Kelly fail to tenderize meat.
After all of the interviews were completed, Webb considered Kelly’s responses as well as his previous demotion and decided to terminate him. Kelly was 53 years old. Webb also terminated meat manager Cros-son and two of Kelly’s co-workers. Like Kelly, both of his- terminated co-workers had suffered prior disciplinary actions. One terminated co-worker was 36 years old. Another co-worker, Art Diaz, was not terminated because “he did not have a prior record of performance and/or disciplinary issues.” Diaz was 47 years old. Further, Webb was 56 years old when he made the decision to terminate Kelly. '
In July 2012, Kelly and the other terminated employees filed a lawsuit in Bexar County District Court. Costco removed the case to federal court on the basis of complete diversity and filed a motion for summary judgment, which the district court granted. Only Kelly has appealed.
Standard of Review
“We review a district court’s grant of summary judgment de novo, applying the same legal standards as the district court.” Berquist v. Washington Mut. Bank,
The Texas Commission on Human Rights Act prohibits employment discrimination against individuals “40 years of age or older,” Tex. Lab.Code Ann. § 21.101. By adopting the statute, the Legislature “intended to correlate state law with federal law in employment discrimination cases.” AutoZone, Inc. v. Reyes,
A plaintiff can establish age discrimination through direct or circumstantial evidence. Rachid v. Jack In The Box, Inc,,
Once a prima facie case is raised, the burden shifts to Costco “to articulate some legitimate, nondiscriminatory reason for the employee’s [termination].” Id. at 802,
Kelly’s only evidence of pretext is that Romo, the Warehouse Manager, once said that he would hire “young kids” if Kelly could not do his job.
When allegedly discriminatory remarks are offered as circumstantial evidence “alongside other alleged discriminatory conduct,” pretext is analyzed using a two-part test.
Kelly fails the Reed test at the outset because he has not identified any alleged discriminatory conduct besides Romo’s comment about “young kids.” Kelly produced no other evidence that he was discriminated against because of his age; in fact, one meat-department employee who was only 36 years old was also dismissed, while another who was 47 years old kept his job. The logical inference is that age was not a factor. See Armendariz v. Pinkerton Tobacco Co.,
Even assuming that we could find pretext based on remarks alone, Romo’s statement fails Reed’s two-part test. Again, the remark by Kelly’s supervisor, Romo, was: “if you can’t handle it, we’ll get some young kids that can.” In context, this statement is not evidence of discriminatory animus. Romo was responding in kind to a topic that Kelly himself brought up when he stated that he was “no young kid anymore” and thus could not do the work. Romo can hardly be taken to task for discussing age when Kelly himself raised it as an excuse for his inability to perform his duties. Further, Romo made this remark immediately after Kelly asked for increased staffing in the meat department because of impending absences. It is equally likely that Romo meant that he was going to bring in some younger employees to help, instead of replace, the current employees. Cf. Sandstad v. CB Richard Ellis, Inc.,
Kelly also fails Reed’s second prong because he has not produced any evidence that Romo had “influence or leverage over” Webb, the ultimate decision-maker. Laxton,
Kelly also contends that Costco’s stated reasons for terminating him were untrue. A plaintiff can survive summary judgment if he shows that his employer’s reason for termination is “false or unworthy of credence.” Jackson v. Calr-W. Packaging Corp.,
Kelly also claims that his failure to deny the meat trimming and package-rew-rapping issues does not mean that he knew about or was responsible for those issues. Kelly states that he did not deny the existence of those issues because he was not working on the day of the inspection. But simply because he was not working on that particular day does not mean that he did not contribute to the poor presentation of the meat. As Kelly confirms in his deposition, meat has a three-day shelf life. Some of the meat had labels stating that it was cut before May 19, and Kelly worked on May 18. Basing the termination decision in part on Kelly’s involvement in preparing that meat is thus worthy of credence.
Kelly critiques the fairness and correctness of the decision to terminate him. But fairness and correctness do not bear on pretext. Anti-discrimination laws were not intended to permit the courts to reexamine employment decisions. Bienkowski v. Am. Airlines, Inc.,
Conclusion
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.
Notes
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Because Romo was not Costco's ultimate decision maker, it is unclear whether Romo’s alleged discriminatory animus could be attributed to Costco, typically, courts attribute a subordinate’s alleged discriminatory animus to an employer through a so-called “cat’s paw” analysis, In an unpublished opinion, we have expressed doubt as to whether cat’s paw analysis applies to the Age Discrimination in Employment Act, Holliday v. Commonwealth Brands, Inc., 483 Fed.Appx, 917, 922 (5th Cir.2012), the federal analogue to the state law at issue here. But because we conclude that Kelly has failed to show that Romo was motivated by discriminatory animus, we need not resolve whether cat's paw analysis is available here.
. Brown v. CSC Logic, Inc.,