Ahmed P. Rachid (“Rachid”) filed an age discrimination claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, alleging that he was terminated from his managerial position at Jack In The Box, Inc. (“JIB”). Because Rachid established a prima facie case and because issues of material fact concerning JIB’s proffered reason for terminating Ra-chid are disputed, summary judgment was improper and this case is REVERSED and REMANDED.
I. FACTS AND PROCEEDINGS
Rachid was employed by JIB from October 1995 to February 2001. Patrick Powers (“Powers”) became Rachid’s supervisor in September 1999. Rachid managed two restaurants, and shared managerial duties at one of the restaurants with Khalil Haidar (“Haidar”). Powers repeatedly criticized Rachid, and, according to both Rachid and Haidar, made disparaging comments about Rachid’s age. Ra-chid, who was 52 years old, reported these comments to JIB’s human resources department, and even requested a transfer because he feared that Powers sought to fire him because of his age. A transfer was never approved and Rachid was fired, according to JIB, for failing to follow policies related to recording employee time.
The parties sharply join issue over whether Rachid violated company policy. On June 15, 2000, Powers sent the following email to managers of JIB restaurants:
Each week I down load [sic] the “punch changes” at each store for the prior week. I am concerned about the increased number of “punch changes” that are related to BREAKS. Let me make clear if anyone alters an employee’s hours to save labor, THEY [sic] ARE BREAKING THE LAW! This is the type of offense that I have no ability to help an individual. Employees must punch out for breaks on there [sic] own, M[anagers-In-Charge] need to verify that each employee punched out at the clock. If an employee fails to punch out at the clock they [sic] are to be written up on a P108 [disciplinary form], NO MANAGER IS TO GO BACK AND DO A PUNCH CHANGE WITHOUT A SIGNED P108 FOR PROOF! The P108 needs to be kept in the employee file. If the employee contests their [sic] hours and there are punch changes without a P108 for back-up documentation, the manager is putting their [sic] job at risk. It becomes a case of “he said/she said” and the manager has no proof that they [sic] didn’t “illegally alter” the time clock. The P108 is the only protection you have against this kind of allegation. Remember: “very few people have ever been fired for missing a number, but all that get caught reporting a false number will always be fired!” I cannot help you out of this kind of problem.
The parties disputed whether this email sent by Powers represents JIB’s company policy. 1
*308 One of JIB’s human resources employees, Kellie Teal-Guess (“Teal-Guess”), investigated several “punch changes” entered for employees at restaurants that Rachid managed. Though Rachid disputes whether this investigation revealed any time-card alterations made by Rachid, 2 he concedes in his deposition that he occasionally changed time-cards when employees took breaks, and that he did not fill out P108 forms for all of those changes. Without further investigation, Powers terminated Rachid immediately upon learning that he had altered time-cards without completing P108 forms. Rachid’s replacement was 47 years old.
Rachid filed an EEOC charge complaining of age discrimination under the ADEA, acquired a Right to Sue letter, and filed suit. The district court granted summary judgment in favor of JIB and dismissed Rachid’s claim. Rachid timely appeals.
II. STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo, and applies the same standard as the district court.
Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys.,
III. DISCUSSION
A. Proper legal standard for an ADEA claim.
It appears that the district court applied the
McDonnell Douglas
approach in analyzing Rachid’s claim.
See McDonnell Douglas Corp. v. Green,
(1) Age discrimination under the ADEA pre-Desert Palace. 4
Under the ADEA, “[i]t shall be 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 indi
*309
vidual’s age.” 29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.”
Reeves v. Sanderson Plumbing Prods., Inc.,
A plaintiff can demonstrate age discrimination in two ways, either through:
direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the “pretext” method of proof set out in McDonnell Douglas Corp. v. Green,411 U.S. 792 ,93 S.Ct. 1817 ,36 L.Ed.2d 668 (1973)....
If, however, plaintiff produces direct evidence of discrimination, the McDonnell Douglas test is “inapplicable.” The Price Waterhouse [v. Hopkins,490 U.S. 228 ,109 S.Ct. 1775 ,104 L.Ed.2d 268 (1989) ], mixed-motives theory of discrimination comes into play where direct evidence of discrimination is presented,
but the employer asserts that the same adverse employment decision would have been made regardless of discrimination. Although Price Waterhouse can be characterized as a method to prove discrimination, the mixed-motives theory is probably best viewed as a defense for an employer. See Price Waterhouse,490 U.S. at 246 ,109 S.Ct. 1775 (“[T]he employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and the employer, if it wishes to prevail, must persuade it on another.”).
' Unlike McDonnell Douglas, which simply involves a shifting of the burden of production, Price Waterhouse involves a shift of the burden of persuasion to the defendant. In other words, under Price Waterhouse, once a plaintiff presents direct evidence of discrimination, the burden of proof shifts to the employer to show that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff prevails
In summary, Price Waterhouse and McDonnell Douglas are alternative methodologies for proving discrimination.
Mooney v. Aramco Serv. Co.,
One district court in this Circuit recently described the mixed-motives analysis. “A mixed-motives case arises when an employment decision is based on a mixture of legitimate and illegitimate motives.... If the employee proves the unlawful reason was a motivating factor, the employer
*310
must demonstrate that it would have taken the same action in the absence of the impermissible motivating factor.”
Louis v. E. Baton Rouge Parish Sch. Bd.,
The parties contest whether
Desert Palace, Inc. v. Costa,
(2) Mixed-motives analysis is available for ADEA claims.
Rachid argues that this case should be analyzed under the mixed-motives analysis described in
Price Waterhouse
and, more recently, in
Desert Palace, Inc. v. Costa,
In
Desert Palace,
the Supreme Court unanimously held that in the context of Title VII, as amended by Congress in 1991, “direct evidence of discrimination is not required in mixed-motive[s] cases.... ”
We must first decide whether the mixed-motives analysis discussed in
Desert Palace
in the context of a Title VII claim is equally applicable in the ADEA context. “[T]he starting point for our analysis is the statutory text.”
Desert Palace,
Given that the language of the relevant provision of the ADEA is similarly silent as to the heightened direct evidence standard,
8
and the presence of heightened pleading requirements in other statutes,
9
we hold that direct evidence of discrimination is not necessary to receive a mixed-motives analysis for an ADEA claim.
10
Accord Estades-Negroni v. Assoc. Corp. of N. Am.,
*312
Township High Sch. Dist. 209,
No. 01-C-5743,
This Court’s recent holding in
Smith v. City of Jackson, Miss.,
Our holding today that the mixed-motives analysis used in Title VII cases post-Deseri
Palace
is equally applicable in ADEA represents a merging of the
McDonnell Douglas
and
Price Waterhouse
approaches. Under this integrated approach, called, for simplicity, the modified
McDonnell Douglas
approach: the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, “the plaintiff must then offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not trae, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiffs protected characteristic (mixed-motive[s] alternative).’ ”
Rishel v. Nationwide Mut. Ins. Co.,
B. Rachid’s claim.
We now turn to whether Rachid’s claim survives summary judgment under the modified McDonnell Douglas approach detailed above.
(1) Rachid established a prima facie case.
JIB essentially concedes that Rachid satisfies the first three factors necessary for a prima facie case. Rachid argues that he demonstrated the fourth factor by showing that: (1) his replacement was five years younger; (2) he long suspected that Powers was going to fire him because of his age and he voiced these concerns to human resources; and (3) Powers made ageist comments to and about Rachid.
The parties spend considerable effort contesting whether an age difference of five years is “significant” or “substantial” under
O’Connor v. Consolidated Coin,
Evidence in the record demonstrates that Powers repeatedly made ageist comments to and about Rachid. In his deposition Rachid notes that, prior to his termination, he reported to human resources that Powers was harassing him about his age. Haidar testified that Powers suggested that Rachid’s absence from a meeting was due to the fact that “he’s probably in bed or he’s sleeping by [now] because of his age.... ” Such evidence of discrimination easily establishes a prime facie case that Rachid was “discharged because of his age.”
See Palasota,
(2) Material issues of fact are disputed, making summary judgment inappropriate.
JIB argues that it had a non-discriminatory reason for firing Rachkl — i.e., Rachid’s failure to follow company policy regarding altering subordinates’ time-sheets without documentation. JIB notes that “since 1999, the Company has terminated at least 11 other employees [including some of whom were substantially younger than Rachid] in the same region for violating the Company’s time[-]sheet policy.”
While violating a non-discriminatory company policy is adequate grounds for termination, two fact issues remain: (1) Rachid claims that Powers’s email did not reflect JIB’s company policy; and (2) he claims that, based on his understanding of the policy, he did not violate the policy. Rachid also argues that JIB’s assertion that other employees were terminated for violating the policy is inapposite here because none of those employees were fired by Powers, nor were any of those employ *314 ees fired for violating the specific time-card policy stated in Powers’s email.
(a) Company policy concerning time-card alterations is unclear.
Rachid claims that “Company Policy said nothing about the Manager signing a P108 Discipline Slip.” Though JIB argues that a company policy was violated, it cites to nothing other than Powers’s email. Ra-chid notes that the Employee Handbook only requires that if an employee “do[esn’t] agree with [his] hours on the [report at the end of each pay period, he must let his] Manager know immediately.”
JIB’s argument that other employees were fired for violating a time-card policy does not resolve this issue. JIB issued separation notices to employees discharged for “employees’ hours deletions,” but none of those notices references failure to complete P108 forms. Additionally, all of those notices assume that employee hours were unlawfully deleted. In the instant case, Rachid claims that he only made lawful deletions (i.e., deletions when employees failed to punch out for breaks). The basis of Rachid’s termination by Powers seems to have had less to do with whether the deletions were accurate than with whether Rachid had completed P108 forms when he made the deletions. 13 The fact that some employees were terminated for “employees’ hours deletions” does suggest that JIB had a policy on this matter, but it does not address the contours of that policy.
Furthermore, the other employees were terminated by other managers, mitigating the relevance of their terminations to the question of whether Powers unlawfully discriminated against Rachid. “This court and others have held that testimony from former employees who had different supervisors than the plaintiff, who worked in different parts of the employer’s company, or whose terminations were removed in time from the plaintiffs termination cannot be probative of whether age was a determinative factor in the plaintiffs discharge.”
Wyvill v. United Cos. Life Ins. Co.,
(b) It is uncertain whether Rachid violated the policy stated in Powers’s email.
Powers’s email states:
If an employee fails to punch out at the clock they [sic] are to be written up on a P108 [disciplinary form]. NO MANAGER IS TO GO BACK AND DO A PUNCH CHANGE WITHOUT A SIGNED P108 FOR PROOF! The P108 needs to be kept in the employee file. If the employee contests their [sic] hours and there are punch changes without a P108 for back-up documentation, the manager is putting their [sic] job at risk.
Rachid argues that his and Haidar’s understanding of Powers’s email “was that, if the ‘employee contests their [sic] hours’ after the Manager made the change, the Manager was to write a P108 form.” Hai-dar testified that he did not think a P108 *315 form was necessary unless an employee disputed changes made to the time-card. According to Rachid’s and Haidar’s interpretation, a P108 was necessary only if, after an employee was notified of an alteration to his hours, he were still to contest it. Therefore, according to Rachid, he never violated the directive as stated in Powers’s email. Of course, whether Ra-chid violated JIB’s policy is a question of fact.
Even if JIB did have a policy (which seems likely), and even if that policy required P108 forms to be filled out in certain circumstances (which is uncertain), a factual question remains as to whether Rachid violated that policy by only completing P108s when an employee contested the alteration.
(c) Summary judgment was improper.
Because issues of material fact are disputed, summary judgment in favor of JIB was unwarranted. This Court’s decision in
Bienkowski v. American Airlines
informs the analysis of whether summary judgment was appropriate at this stage.
See Bienkowski v. American Airlines, Inc.,
Unlike the district court, we are unwilling to assume that indirect comments about his age and adaptability are not possibly probative of an unlawful discriminatory intent, given the parties’ sharp disagreements over the operative facts of [plaintiffl’s performance. Moreover, live testimony will assist the necessary credibility choices in this case more effectively'than printed affidavits.
Id.
at 1507. Comments to look “sharp” and comments concerning an employee’s willingness to “adapt” to new systems are rather nebulous, but they allowed Bien-kowski to avoid summary judgment. The alleged ageist comments in the instant case are substantially more egregious. Similarly, in
Palasota,
this Court, in reversing a district court’s grant of a judgment as a matter of law, explained, “[a]ge-related remarks ‘are appropriately taken into account when analyzing the evidence
...,’
even where the comment is not in the direct context of the termination and even if uttered by one other than the formal decision maker, provided that the individual is in a position to influence the decision.”
In the case sub judice, Rachid presents far more evidence of age discrimination than was presented in Bienkowski. Ra-chid testified that Powers made numerous ageist comments — including one situation where Powers allegedly said: “[A]nd don’t forget it, [Rachid], you’re too old, too”— and Haidar supported Rachid’s assertions that Powers continually made such comments. Rachid even spoke with human resources prior to his termination to express his fear that Powers would try to fire him because of his age. Despite JIB’s focus on Teal-Guess’s investigation and company policy, it was Powers who terminated Rachid, and it was Powers who repeatedly made ageist comments to and about Rachid. Such comments preclude summary judgment because a rational finder of fact could conclude that age *316 played a role in Powers’s decision to terminate Rachid.
IV. CONCLUSION
For the forgoing reasons we hold that: Desert Palace modifies the McDonnell Douglas analysis in ADEA cases such that a plaintiff can proceed on a mixed-motives theory even without direct evidence of discrimination; Rachid established a prima facie case of discrimination; and disputed issues of material fact remain concerning JIB’s proffered reason for terminating Ra-chid and concerning whether age was a factor in that decision. Therefore, the district court’s summary judgment is REVERSED, and this case is REMANDED for further proceedings not inconsistent with this opinion.
Notes
. JIB’s Employee Handbook directs employees in the following manner: “To make sure there is agreement on what hours you worked, your Manager will post an Hours Report at the end of each pay period for employees to check. If you don't agree with *308 your hours on the report, let your Manager know immediately.”
.Three of those employees reported alterations in their time-cards. Apparently, none of the employees alleged that Rachid himself (as opposed to another manager) altered his time-card during the period under investigation by Teal-Guess. Teal-Guess informed Powers that certain employees in restaurants where Rachid was a manager had improper deletions of time. Teal-Guess noted that it was Powers’s responsibility to determine whether Rachid (or another manager) had made the improper changes.
. Under the
McDonnell Douglas
burden shifting approach: the plaintiff must establish a prima facie case of discrimination; if the plaintiff meets that burden, the defendant must produce a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; if the defendant meets its burden of production, the plaintiff then has the opportunity to demonstrate that the defendant’s proffered reason for termination is merely pretex-tual.
West v. Nabors Drilling USA, Inc.,
.
Desert Palace, Inc. v. Costa,
. "Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.”
Sandstad v. CB Richard Ellis, Inc.,
. Only one prior opinion of this Court, which was unpublished, cites to
Desert Palace,
and it does not address whether
Desert Palace
applies to ADEA claims.
See Read v. BT Alex Brown Inc.,
. In response to
Price Waterhouse v. Hopkins,
. See, e.g., 8 U.S.C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien "demonstrates by clear and . convincing evidence” that the application was filed within one year of the alien's arrival in the United States); 42 U.S.C. § 5851(b)(3)(D) (providing that “[r]elief may not be ordered” against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to "demonstrate] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior”).
. This Court’s holding in
Mooney,
. We are focused here on the statutory text concerning "differentiation ... based on reasonable factors other than age." See 29 U.S.C. § 623(f)(1). This analysis, of course, does not affect the interpretation of § 623(f)(l)'s previous phrase which provides that an employment action based on age is not unlawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” See id.
.
Compare Bienkowski v. American Airlines, Inc.,
. Powers fired Rachid immediately after Ra-chid admitted to making some alterations without completing P108 forms. Powers did not make any investigation to determine whether those deletions were accurate.