Lassetter v. Strategic Materials Inc. , 72 F. App'x 106 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 29, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-10399
CECIL LASSETTER
Plaintiff-Appellant-Cross-Appellee
v.
STRATEGIC MATERIALS INC
Defendant-Appellee-Cross-Appellant
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:98-CV-2889-M
Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Cecil Lassetter appeals the district
court’s order granting Defendant-Appellee Strategic Materials,
Inc.’s motion for judgment as a matter of law on Lassetter’s
claim under the Age Discrimination in Employment Act. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
A. Facts
Plaintiff-Appellant Cecil Lassetter worked for Defendant-
Appellant Strategic Materials, Inc. (“Strategic”) as a plant
manager in a glass recycling plant in Midlothian, Texas. After
*
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that this opinion should not be published and is not precedent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.
receiving complaints about Lassetter’s job performance,
Strategic’s Vice-President, Curt Bucey, suspended Lassetter with
pay to investigate these complaints.1 Bucey investigated the
complaints about Lassetter and detailed the results of his
investigation in a six-page letter to Lassetter. The letter
expressed Bucey’s concerns about Lassetter’s: inappropriate
treatment of subordinates, disloyalty to Strategic, absence from
an annual plant managers’ meeting, failure to produce quality
control reports, and abandonment of a temporary assignment at
Strategic’s Houston plant.2
Lassetter replied with a very brief letter where he
generally denied the allegations and accused Strategic of
attempting to discharge him on the basis of his age. Lassetter
wrote: “The allegations contained in the Letter are untrue,
unsubstantiated, unwarranted and show[] the company’s intent to
force me out in violation of the Age Discrimination Act.”
Bucey then terminated Lassetter’s employment with Strategic.
In his letter discharging Lassetter, Bucey wrote: “You are hereby
terminated for cause, the cause being the complaints and issues
with your job performance raised in my letter of March 5, your
lack of response to the same, and the apparent breach of your
duty of loyalty to the company as plant manager in efforts to
divert suppliers from the plant.”
1
Prior to that suspension, Lassetter had not been
formally disciplined or suspended, though his supervisors
testified that they had previously met with Lassetter informally
to discuss problems with his performance.
2
This letter was viewed by the jury in a significantly
redacted form.
2
At the time of his discharge, Lassetter was fifty-eight
years old. Lassetter’s replacement was forty-six-year-old Joe
Schumacher. Schumacher was replaced a few months later by
thirty-four-year-old Roy Benavides.
B. Procedural History
Lassetter sued, claiming intentional discrimination under
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§§ 621-634 (2000), and intentional infliction of emotional
distress under Texas law. The district court dismissed the
intentional infliction of emotional distress claim for failure to
state a claim.
The district court then held a three-day jury trial on
Lassetter’s ADEA claim. During the trial, Lassetter sought to
prove his claim of age discrimination by showing that Strategic’s
stated reasons for discharging him were a pretext for age
discrimination. Strategic moved for judgment as a matter of law
(“JMOL”) at the close of Lassetter’s evidence and at the close of
all the evidence. The district court denied both motions for
JMOL without prejudice. The jury returned a verdict for
Lassetter, finding that Strategic willfully discriminated against
him on the basis of his age.3 Strategic again moved for JMOL.
The district court granted Strategic’s motion for JMOL because it
found that Lassetter had not provided sufficient evidence for the
jury to determine that each of Strategic’s stated reasons for
discharging him was pretextual.
3
The jury awarded Lassetter $103,144 in back pay. Also,
in an advisory finding requested by the court, the jury indicated
that it would award $109,838 in front pay.
3
Lassetter now appeals, arguing that the district court erred
in granting Strategic’s motion for JMOL because he provided
sufficient evidence for the jury to find that each of the stated
reasons for discharging him was pretextual. Strategic adds an
issue on appeal, arguing that this court should not consider
Lassetter’s appeal because his failure to include a trial
transcript in the appellate record violates Federal Rule of
Appellate Procedure 10(b)(2).4
II. STANDARD OF REVIEW
We review a district court’s grant of judgment as a matter
of law de novo. See, e.g., West v. Nabors Drilling USA, Inc.,
330 F.3d 379, 383 (5th Cir. 2003). Judgment as a matter of law
is appropriate when “a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” FED. R. CIV. P.
50(a). There is no legally sufficient evidentiary basis when
“the facts and inferences point so strongly and overwhelmingly in
favor of one party that the Court believes that reasonable men
could not arrive at a contrary verdict.” Rubenstein v. Adm’rs of
the Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)
(internal citation and quotation marks omitted), cert. denied,
532 U.S. 937 (2001). As we have explained:
In Reeves v. Sanderson Plumbing Products, Inc., the Supreme
Court clarified the approach a court should use when
granting a judgment as a matter of law. First, we must
4
Strategic also cross-appeals “the lack of a conditional
ruling on Strategic’s motion for a new trial.” Strategic
provided no argument on this point in its brief. Because we
affirm the district court’s JMOL in favor of Strategic, we do not
address the cross-appeal.
4
review the record taken as a whole. Second, in reviewing
all of the evidence in the record, we must draw all
reasonable inferences in favor of the nonmoving party and
not make credibility determinations or weigh the evidence.
In other words, we must give credence to the evidence
supporting the nonmovant as well as any evidence supporting
the moving party that is uncontradicted, unimpeached, and
not attributable to interested witnesses.
Phillips ex rel. Phillips v. Monroe County, Miss., 311 F.3d 369,
373 (5th Cir. 2002) (internal citations and quotation marks
omitted), cert. denied, 123 S. Ct. 2274 (2003). Thus, we review
the record as a whole, drawing all reasonable inferences in favor
of Lassetter without making any credibility assessments.
III. DISCUSSION
A. Whether Lassetter’s failure to include a transcript in the
record bars this appeal
Initially, we must address whether Lassetter’s initial
failure to include the trial transcript in the record on appeal
precludes us from reviewing his appeal on the merits. Under the
Federal Rules of Appellate Procedure, “If the appellant intends
to urge on appeal that a finding or conclusion is unsupported by
the evidence or is contrary to the evidence, the appellant must
include in the record a transcript of all evidence relevant to
that finding or conclusion.” FED. R. APP. P. 10(b)(2). Further,
“If anything material to either party is omitted from or
misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental record may be
certified and forwarded . . .” FED. R. APP. P. 10(e)(2)(C).
Failure to include a transcript in the record is grounds for
dismissal; however, the decision whether to dismiss an appeal due
to lack of a transcript is within our discretion. See, e.g.,
5
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th Cir.
1995); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989).
In this case, we will not dismiss Lassetter’s appeal due to
lack of a transcript. Though the transcript was not in the
record initially, Lassetter recognized the mistake and
supplemented the record with the trial transcript on July 29,
2002, approximately five months before oral argument. Lassetter
stated in his brief that he requested that the transcript be
included in the record and he claims that the transcript was
omitted “by error or accident,” FED. R. APP. P. 10(e)(2)(C). We
have been given no reason to doubt Lassetter’s good faith.
Further, Strategic has not been prejudiced significantly by the
initial omission of the transcript because Strategic had a copy
of the transcript available for its use in briefing this appeal.
The transcript is now in the record so that we may properly
assess Lassetter’s claims on appeal. For these reasons, we elect
to hear the appeal.
B. Whether the district court erred in granting judgment as a
matter of law
The ADEA prohibits an employer from “discharg[ing] any
individual . . . because of such individual’s age.” 29 U.S.C.
§ 623(a)(1) (2000). A plaintiff must prove intentional
discrimination to establish a violation of the ADEA, which he can
do by presenting either direct or circumstantial evidence. See,
e.g., Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir.
1997).
In cases where the plaintiff alleges discriminatory
6
treatment based on circumstantial evidence, as is the case here,5
we follow the familiar burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green. See 411 U.S. 792, 802-05
(1973); see also, e.g., West, 330 F.3d at 384 (applying this
framework to ADEA discrimination cases). Initially, the
plaintiff must set forth a prima facie case of discrimination.
See, e.g., McDonnell Douglas, 411 U.S. at 802; West, 330 F.3d at
384. To establish a prima facie case of discriminatory discharge
based on age, a plaintiff must prove: (1) he was a member of a
protected class (over the age of forty); (2) he was qualified for
his position; (3) he was discharged; and (4) he was replaced by
someone outside of the protected class, someone younger, or was
otherwise discharged because of his age.6 West, 330 F.3d at 384.
The burden then shifts to the employer to produce a
legitimate, nondiscriminatory reason for discharging the
plaintiff. See, e.g., McDonnell Douglas, 411 U.S. at 802-03;
West, 330 F.3d at 384-85. The employer’s burden is one of
production; the burden of persuasion remains with the plaintiff
at all times. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981); West, 330 F.3d at 384-85. If the
employer meets its burden of production, the inference of age
discrimination created by the prima facie case disappears. See,
e.g., West, 330 F.3d at 385.
The plaintiff then has the opportunity to demonstrate that
5
Lassetter concedes that there is no direct evidence of
age discrimination in this case.
6
Strategic concedes that Lassetter made out a prima
facie case of age discrimination.
7
the employer’s stated reasons are not its true reasons but
instead are a pretext for discrimination and to ultimately prove,
by a preponderance of the evidence, that he has been the victim
of intentional discrimination. See, e.g., McDonnell Douglas, 411
U.S. at 804-05; West, 330 F.3d at 385. In attempting to prove
that the employer’s reasons for discharge were pretextual, the
plaintiff must put forward evidence rebutting each of the
proferred reasons. See, e.g., Wallace v. Methodist Hosp. Sys.,
271 F.3d 212, 220 (5th Cir. 2001), cert. denied, 535 U.S. 1078(2002).
When a case has been fully tried, we do not rely on the
McDonnell Douglas burden-shifting scheme, but simply ask whether
the record contains sufficient evidence to support the jury’s
ultimate findings. See, e.g., West, 330 F.3d at 385-86; Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
Hence, the key issue in this appeal is whether Lassetter provided
sufficient evidence for a reasonable jury to find that
Strategic’s stated reasons for discharging him were pretextual,
thereby precluding JMOL.
At trial, Strategic set forth five reasons why it discharged
Lassetter. The reasons are: (1) Lassetter’s disloyalty to
Strategic; (2) Lassetter’s disrespectful behavior toward
subordinates and toward management; (3) Lassetter’s abandonment
of his post during a temporary assignment at Strategic’s Houston
plant; (4) Lassetter’s failure to take inventory in a timely
manner and to implement a quality assurance system; and (5)
Lassetter’s absence from Strategic’s annual meeting for plant
8
managers. Lassetter attempted to disprove these reasons through
his testimony and the testimony of three former Strategic
employees.7 Strategic only defends the first four of its
proffered reasons on appeal.
Lassetter has not presented sufficient evidence for a
reasonable jury to conclude that all of Strategic’s stated
reasons for Lassetter’s discharge were pretextual. At trial,
there was conflicting evidence about the first two of Strategic’s
proferred reasons – Lassetter’s disloyalty and his treatment of
subordinates and management. The jury clearly chose to credit
Lassetter’s version of events and not Strategic’s. But even if
the jury refused to credit the testimony Strategic offered as to
the first two reasons, there is uncontradicted evidence in
support of Strategic’s third and fourth reasons. We consider
each of these reasons in turn.
As its third reason for discharge, Strategic cited
Lassetter’s abandonment of a temporary post at Strategic’s
Houston plant. At trial, Bucey testified that he gave Lassetter
the responsibility for managing Strategic’s Houston plant for a
ninety-day trial period and that Lassetter simply stopped
reporting for work at the Houston plant after about three weeks.
Lassetter testified that the trial period was only to last thirty
days, but he admitted that he left the plant after only three
7
Lassetter also introduced evidence that two of his
former supervisors, Tom Vossman and Rich Smithson, made age-
related comments about him. The district court determined that
these stray remarks were not probative evidence of discrimination
because they did not satisfy the four-part test set forth in
Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996).
Lassetter does not appeal this ruling.
9
weeks without giving Bucey any prior notice. Lassetter stated
that he told his direct supervisor, Rich Smithson, that he was
not interested in becoming plant manager at the Houston plant
during the thirty-day trial period. But, Lassetter admits that
he did not tell Smithson about his decision to leave the Houston
plant until a week after he left the plant and that, as a result,
the plant was left unsupervised.
Even if the jury believed that Lassetter did not wish to
assume management of the Houston plant, Lassetter provided no
evidence to rebut the fact that he left the Houston plant before
the end of the thirty-day trial period without notifying
management or finding a replacement manager for the plant.
Lassetter argues that he provided sufficient evidence for the
jury to find that his discharge was pretextual because, though
Lassetter abandoned the Houston plant in the summer of 1997, he
was not disciplined for this episode until he was suspended (and
ultimately discharged) in the spring of 1998. But, the
uncontested facts do not support Lassetter’s argument. Bucey
testified that soon after Lassetter left the Houston plant,
Strategic flew Lassetter to Houston to meet with Bucey and
Smithson to discuss his abandonment of the Houston plant and his
performance generally. Lassetter admitted that he made this
trip. On the uncontested facts, then, Strategic provided a non-
discriminatory reason for discharging Lassetter.
As its fourth reason for discharge, Strategic cited
Lassetter’s failure to complete monthly inventory reports and his
failure to implement a quality control system. At trial, Bucey
10
testified about the importance of keeping proper inventory and
maintaining quality control. Bucey stated that Lassetter rarely
made inventory reports at the end of the month when they were due
and did not implement Strategic’s quality control system at the
Midlothian plant. Lassetter never addressed these specific
complaints, either before his discharge or at trial. Instead,
Lassetter pointed to the testimony of Roy Benavides, a plant
manager after Lassetter, who stated that he managed the
Midlothian plant “just the way Cecil [Lassetter] was running it,”
and that he was never suspended or discharged. Because Benavides
did not testify about whether he produced inventory reports or
whether he implemented a quality control system, his testimony
was too general to create a fact issue as to whether Strategic’s
proffered reason was pretextual. Again, on the uncontested
facts, Strategic has set forth another non-discriminatory reason
for Lassetter’s discharge.
In summary, Lassetter’s prima facie case is weak, and there
is no direct evidence of discrimination. Lassetter attempts to
show discrimination by showing that Strategic’s reasons for
discharge were pretextual, but there is uncontroverted evidence
supporting two of Strategic’s nondiscriminatory reasons: that
Lassetter abandoned his temporary post at the Houston plant and
that he was unwilling to follow Strategic’s inventory and quality
assurance practices. Because Lassetter did not provide evidence
suggesting these two reasons were pretextual, he cannot prove
intentional discrimination. We thus find that there is no
legally sufficient evidentiary basis for a reasonable jury to
11
find for Lassetter on his age discrimination claim. The district
court’s grant of Strategic’s motion for JMOL was proper.
IV. CONCLUSION
For the foregoing reasons, the district court’s order
granting Strategic’s motion for JMOL is AFFIRMED. Costs shall be
borne by the Appellant.
12