Munday v. H B Zachry Company ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-30112
(Summary Calendar)
_________________
BOBBY JOE MUNDAY,
Plaintiff-Appellant,
versus
H.B. ZACHRY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(95-CV-2079)
September 5, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bobby Joe Munday appeals the district court’s grant of summary
judgment in favor of defendant H. B. Zachry Company (“HBZ”) in his
action under the Louisiana Age Discrimination in Employment Act
(LADEA), La. Rev. Stat. § 23:971 et seq. We affirm.
*
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that this opinion should not be published and is not precedent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.
I
HBZ, an industrial maintenance contracting and building
company, hired Bobby Joe Munday in January 1991, when Munday was
fifty-five years old. Munday initially worked as safety manager
for HBZ in Borger, Texas. In February 1994, HBZ transferred Munday
to DeRidder, Louisiana, where he served as safety manager at the
Boise Cascade plant.
According to the summary judgment record, HBZ became concerned
about the accident rate at the DeRidder plant and concerned about
Munday’s job performance, specifically with regard to the
maintenance of required safety documentation. In his affidavit,
Munday’s supervisor averred that he transferred Munday to Indiana
to teach training classes so that the safety records under Munday’s
supervision could be investigated and analyzed. HBZ maintains that
as a result of this investigation and the supervisor’s evaluation
of Munday’s job performance, Munday was fired in August 1995.
Munday was fifty-nine years old at the time of his termination.
HBZ replaced Munday with Darren Melancon, the individual
responsible for the investigation and evaluation of Munday’s safety
records. Melancon was under the age of forty when he assumed
Munday’s position.
Munday filed suit against HBZ in state court, alleging that
HBZ terminated him because of his age, in violation of the LADEA.
HBZ, a Texas corporation with its principal place of business in
Texas, removed the case to federal court on the basis of diversity
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of citizenship. 28 U.S.C. § 1332(a) & 1441(a). HBZ filed a motion
for summary judgment on the ground that Munday could not make a
prima facie showing of age discrimination, or, in the alternative,
that Munday could not satisfy his ultimate burden to show that
HBZ’s proffered nondiscriminatory reasons for Munday’s termination
were pretextual.
The district court ruled that Munday had established a prima
facie case; however, the court granted HBZ’s motion for summary
judgment on the second ground, finding that Munday had failed to
submit any summary judgment evidence to establish that HBZ’s
proffered reasons for his termination were a pretext for age
discrimination. Munday filed this timely appeal.
II
Munday argues on appeal that the district court erred in
granting HBZ’s motion for summary judgment because there are
genuine issues of material fact with respect to HBZ’s true
motivation in terminating him. We review the district court’s
grant of summary judgment de novo. EEOC v. Texas Instruments,
Inc., 100 F.3d 1173, 1179 (5th Cir. 1996). Summary judgment is
appropriate only “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 judgment as
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a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence in
the light most favorable to the nonmovant. Nichols v. Loral Vought
Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996).
A
The LADEA provides in pertinent part:
A. It is unlawful for an employer to:
(1) Fail or refuse to hire, or 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.
La. Rev. Stat. § 23:972(A)(1). The LADEA is modeled after and is
identical to the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634. Taylor v. Oakbourne Country Club,
663 So.2d 379, 383 (La. Ct. App. 1995); Harris v. Home Sav. & Loan
Ass’n, 663 So.2d 92, 95 (La. Ct. App. 1995), writ denied, 664 So.2d
405 (La. 1995). There is little case law in Louisiana offering
guidance to the substantive provisions of the LADEA; therefore, we
look to case law interpreting the federal ADEA for guidance.
Taylor, 663 So.2d at 383; Lloyd v. Georgia Gulf Corp., 961 F.2d
1190, 1193 (5th Cir. 1992).
A plaintiff who offers sufficient direct evidence of
intentional discrimination should prevail in defeating a
defendant’s motion for summary judgment. Nichols, 81 F.3d at 40.
However, direct evidence of discrimination is rare. The Supreme
Court has devised a procedure allocating the burden of production
and establishing an orderly presentation of proof in Title VII
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discrimination cases. See generally Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 1093-95,
67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973). We
have consistently applied the McDonnell Douglas-Burdine framework
in the ADEA context. See Nichols, 81 F.3d at 40; Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996)(en banc);
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
The plaintiff must first establish a prima facie case of age
discrimination. Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th
Cir. 1996). If he succeeds in establishing a prima facie case, a
presumption of discrimination arises, and the employer must rebut
this presumption by articulating a legitimate, nondiscriminatory
reason for the adverse employment action. Id. If the employer
provides a legitimate, nondiscriminatory reason, the presumption of
discrimination disappears. Rhodes, 75 F.3d at 992. The burden
then shifts back to the plaintiff, who must present probative
evidence that the employer’s proffered reason is a pretext for an
illegally discriminatory motive. Brown, 82 F.3d at 654. “The
plaintiff can demonstrate that the reason was pretextual in two
ways, ‘either (1) directly by persuading the court that a
discriminatory reason more likely motivated the employer, or (2)
indirectly by showing that the employer’s proffered explanation is
unworthy of credence.’” Hall v. Gillman, 81 F.3d 35, 37 (5th Cir.
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1996) (quoting Thornbrough v. Columbus and Greenville R. Co., 760
F.2d 633, 639 (5th Cir. 1985)).
Munday presents no direct evidence of discrimination. In
fact, Munday admits in his deposition testimony that no one at HBZ
said anything to him that led him to believe that he was
discriminated against because of his age. Absent any direct
evidence, Munday must rely on the traditional burden-shifting
analysis to defeat HBZ’s motion for summary judgment.
To establish a prima facie case of age discrimination, Munday
must demonstrate that he was discharged, that he was qualified for
the position, that he was within the protected class at the time of
the discharge))that is, that he was age forty or over))and must
present evidence sufficient to create an inference that the
employment decision was based on an illegal discriminatory
criterion. O’Connor v. Consolidated Coin Caterers Corp., ___ U.S.
___,116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). Munday need only
make a very minimal showing to establish a prima facie case.
Nichols, 81 F.3d at 41. A plaintiff may create an inference of
illegally discriminatory motive by showing that he was replaced by
someone significantly younger. O’Connor, ___ U.S. at ___, 116 S.
Ct. at 1310.
HBZ does not dispute that Munday was discharged, that Munday
was over age forty and thus a member of the protected class under
the LADEA, or that he was replaced by someone significantly
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younger. HBZ does contend, however, that Munday was not qualified
for his position. Munday counters that he was qualified for the
job, and there is some evidence to that effect in his deposition.
We agree with the district court that, given the slight burden
necessary, Munday has established a prima facie case.
Therefore, the burden shifts to HBZ to articulate a
legitimate, nondiscriminatory reason for the discharge. Munday’s
supervisor states in his affidavit that Munday was discharged
because of his unsatisfactory job performance. Specifically, the
supervisor lists three areas of concern that contributed to the
decision to terminate Munday:
(1) Poor job performance, including Munday’s failure to
devote an adequate amount of time to activities in the
field; failure to maintain proper safety documentation
and to document training of personnel assigned to the
site; and lack of initiative, ambition and enthusiasm in
the performance of his duties.
2) Poor leadership skills, including Munday’s lack of
skill in making presentations, an insecure and monotone
orientation and training style; failure to guide, train,
or mentor safety personnel working with him in the safety
department; and failure to support the safety principles,
policies and procedures that he was responsible for
ensuring.
3) Lack of character required for the position,
resulting in Munday being viewed by supervisors as weak,
and viewed by employees as ineffective.
In support of its contentions, HBZ submitted affidavits from
Munday’s supervisor, copies of Munday’s June 1995 performance
evaluation, and copies of the investigative report prepared by
Melancon. We agree with the district court that HBZ has met its
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burden of articulating legitimate, nondiscriminatory reasons for
Munday’s discharge. Therefore, the presumption of discrimination
raised by Munday’s prima facie case disappears, and Munday must
offer probative evidence to establish a genuine issue of fact as to
whether HBZ’s articulated reasons are mere pretexts for illegal
discrimination. Nichols, 81 F.3d at 41.
Munday submitted no evidence in opposition to HBZ’s summary
judgment motion. In his response filed with the district court,
Munday simply stated that there is a genuine issue of material fact
with respect to pretext without specifying what facts in the record
supported that assertion. Munday argues that there is a genuine
issue of material fact as to discriminatory animus whenever the
plaintiff has established a prima facie case and the defendant has
offered nondiscriminatory reasons for the discharge. Munday,
however, is mistaken; if such were the case, the last step of the
burden-shifting analysis of McDonnell Douglas and Burdine would be
largely superfluous. Because Munday failed to point to any facts
tending to show that HBZ’s reasons are pretextual, Munday did not
meet his burden to designate “specific facts showing that there is
a genuine issue for trial.” Fed. R. Civ. P. 56(e); see also
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.) (“‘Rule 56 does not
impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary
judgment.’. . . Nor is it our duty to do so on appeal.”) (citation
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omitted), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d
127 (1994).1
Munday attempts to raise for the first time on appeal that the
district court should have ignored the investigative report
prepared by Melancon, the individual who eventually replaced him,
because Melancon had an inherent conflict of interest as a
contender for his position. We decline to consider an argument
raised for the first time on appeal. “Although on summary judgment
the record is reviewed de novo, this court . . . will not consider
evidence or arguments that were not presented to the district court
for its consideration in ruling on the motion.” Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915 (5th Cir.), cert. denied, 506 U.S.
832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992).
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of HBZ.
1
Munday testified in his deposition, which was attached to
HBZ’s motion for summary judgment, that HBZ had a policy of
encouraging poor record keeping and that he had destroyed records
to avoid recording dangerous incidents at the job sites pursuant to
this policy. Munday did not point to this testimony in his
opposition to the summary judgment motion before the district
court. In addition, even if his testimony raises a material issue
of fact with respect to whether poor record keeping was a reason
for his discharge, there is no evidence in the record tending to
rebut any of the other nondiscriminatory reasons offered by HBZ.
An ADEA plaintiff “must offer evidence to rebut each of the
employer’s articulated legitimate, nondiscriminatory reasons.”
Texas Instruments, Inc., 100 F.3d at 1180 (emphasis added). At any
rate, Munday’s claim that HBZ condoned poor record-keeping does not
tend to show pretext for unlawful discrimination.
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