Dean v. Property One Inc ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-30351
Summary Calendar
KAREN S. DEAN,
Plaintiff-Appellant,
VERSUS
PROPERTY ONE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(2:00-CV-1534)
October 10, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
In this employment discrimination case, Plaintiff-Appellant
Karen S. Dean (“Dean”) sues her former employer, Defendant-Appellee
Property One, Inc. (“Property One”), alleging she was discharged on
the basis of her age, race, and gender, in violation of the Age
*
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opinion should not be published and is not precedent except under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.
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e et seq. The District Court for the Western
District of Louisiana (Trimble, J.) granted Property One’s motion for
summary judgment and dismissed Dean’s lawsuit. Dean now appeals that
decision. We AFFIRM.
I.
Property One leases and manages commercial properties throughout
Louisiana. It manages the Hibernia Tower in Lake Charles, Louisiana
for the Hibernia National Bank (“Hibernia”). At the time of the
events giving rise to this lawsuit, Property One had thirteen
employees working at the Hibernia Tower, including Dean. Hibernia
reimbursed Property One for the cost of eleven of these employees,
including Dean. The office manager of Property One’s Hibernia Tower
office was Mark Politz.
Dean is an African American woman born in 1949. She began
working for Property One as a maintenance helper on September 1,
1983. On June 28, 1999, she was discharged. At the time, she held
the position of day maid/housekeeper. In her deposition, Dean
testified that Politz told her he had to lay off either her or Anna
Theriot. Theriot, a younger white woman, was Property One’s
facilities manager at the Hibernia Tower. Dean was Property One’s
only African American employee at the Hibernia Tower at the time of
her discharge.
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Dean initially asserted that she was replaced by Glenn Granger,
a white man; however, in response to Property One’s motion for
summary judgment, she instead asserted that her duties had been
reassigned to Theriot. Dean offered no direct evidence of either
racial or gender discrimination. The only direct evidence of age-
based comments she offered concerned a co-worker, who on several
occasions called her “an old lady.”
Politiz testified by affidavit that Property One eliminated
Dean’s position as a cost-cutting measure. He explained that
Hibernia maintained a separate janitorial services contract with
another company, through which it enjoyed the services of a day
porter whose responsibilities overlapped with Dean’s. Hibernia asked
Politz to eliminate Dean’s position because it was redundant. Politz
also testified that in response to Hibernia’s request for further
savings he eliminated two additional positions. He eliminated the
leasing agent position when its occupant voluntarily resigned, and he
eliminated Theriot’s facilities manager position when he transferred
her into the service coordinator/receptionist position vacated by
another voluntary resignation.
II.
We review a grant of summary judgment de novo, applying the same
standards that governed the district court’s ruling. Conner v.
Lavaca Hosp. Dist., 267 F.3d 426, 432 (5th Cir. 2001); Grimes v.
Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 139
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(5th Cir. 1996). “Summary judgment is appropriate when there is no
genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Grimes, 102 F.3d at 139 (citing Fed.
R. Civ. P. 56(c)). In employment discrimination cases, the question
is whether a genuine issue of fact exists as to whether the defendant
intentionally discriminated against the plaintiff. Id.Unsubstantiated assertions are not competent summary judgment
evidence. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d
164, 167 (5th Cir. 1999); Grimes, 102 F.3d at 139. Questions of fact
are viewed in the light most favorable to the nonmovant, while
questions of law are reviewed de novo. Bauer v. Albemarle Corp., 169
F.3d 962, 966 (5th Cir. 1999).
III.
Title VII prohibits an employer from failing or refusing to hire
or discharge an individual “because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
ADEA proscribes similar treatment on the basis of age. 29 U.S.C. §
623(a)(1). The same evidentiary procedure for allocating burdens of
production and proof applies to discrimination claims under both
statutes. Bauer, 169 F.3d at 966.
Initially, a plaintiff must establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). This burden is
slight. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
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253, 101 S. Ct. 1089, 1094 (1981).
To establish a prima facie case of age discrimination under the
ADEA, the plaintiff must prove that (1) she is a member of a
protected class, (2) she was qualified for the position that she
held, and (3) she was discharged. Bauer, 169 F.3d at 966. The
plaintiff must also show that she was replaced by someone outside the
protected class or by someone younger, or if she was not replaced,
that she was otherwise discharged because of her age. Id.To establish a prima facie case of gender or race discrimination
under Title VII, a plaintiff must show that (1) she is a member of a
protected class; (2) she was qualified for the position that she
held; (3) she was discharged; and (4) the employer replaced her with
an individual outside the protected class. See Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000); Bauer, 169
F.3d at 966. “When the employer does not plan to replace the
discharged plaintiff, the fourth element is ‘that after [the]
discharge others who were not members of the protected class remained
in similar positions.’” Bauer, 169 F.3d at 966 (citing Vaughn v.
Edel, 918 F.2d 517, 521 (5th Cir. 1990)).
The establishment of a prima facie case under either the ADEA or
Title VII raises a presumption of discrimination, “which the
defendant must rebut by articulating a legitimate, nondiscriminatory
reason for its actions.” Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 404 (5th Cir. 1999). The defendant can meet this burden by
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presenting evidence that, “if believed by the trier of fact, would
support a finding that unlawful discrimination was not the cause of
the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 507, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). “If the
defendant succeeds in carrying its burden of production, the
presumption, having fulfilled its role of forcing the defendant to
come forward with some response, simply drops out of the picture, and
the trier of fact proceeds to decide the ultimate question of whether
the plaintiff has proved that the defendant intentionally
discriminated against her.” Bauer, 169 F.3d at 966.
Once the defendant presents sufficient evidence of a legitimate,
nondiscriminatory reason for its actions, the burden shifts back to
the plaintiff, who must demonstrate by a preponderance of the
evidence that the defendant’s reasons are not “‘true reasons, but
were a pretext for discrimination.’” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed.
2d. 105 (2000) (quoting Burdine, 450 U.S.at 253, 101 S. Ct. at 1093).
In the summary judgment context, the plaintiff at this stage must
substantiate her claim of pretext through evidence demonstrating that
discrimination lay at the heart of the employer’s decision. See
Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392,
400 (5th Cir. 2000), cert. denied, 532 U.S. 937, 121 S. Ct. 1393(2001).
The parties do not contest Dean’s ability to establish the first
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three elements of a prima facie case of age, race, or gender
discrimination. Hence, the Court need only focus on the fourth
element. Because Dean concedes she was not replaced by a man, and
because she offers no evidence that men remained in positions similar
to hers after her discharge, she fails to establish a prima facie
case of gender discrimination. Dean sufficiently establishes a prima
facie case of discrimination based on age and race, however, through
her testimony that Politz said he had to chose between laying off her
or the younger, white Theriot.
Through Politz’s affidavit, Property One articulated a
legitimate, nondiscriminatory reason for its decision to discharge
Dean. Politz explained that Hibernia had instructed Property One to
trim its expenses at the Hibernia Tower. In particular, he testified
that Hibernia specifically asked him to eliminate Dean’s position
because her job duties overlapped with those of a janitor under
contract with it.
Dean asserts that Property One’s reason for her termination was
pretextual. In support of her assertion, however, she offers only
her conclusion that she was fired because she is an older black
woman. This is insufficient. Because she fails to substantiate her
claim with any competent evidence demonstrating that discrimination
lay at the heart of Property One’s decision, Dean fails to meet her
burden of proof and, thus, fails to demonstrate there is a genuine
issue of material fact remaining to be decided as to whether Property
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One intentionally discriminated against her.1
For these reasons, we AFFIRM the district court’s grant of
summary judgment.
1
The fact that a co-worker on several occasions had called her
“an old lady” is irrelevant in the absence of evidence that he had
authority over the decision to discharge her, that his comments
were related to her discharge, or that his comments were temporally
proximate to her discharge. See Rubinstein, 218 F.3d at 400-01
(citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996)).
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