Document Info

DocketNumber: 14-20616

Judges: Jolly, Higginson, Costa

Filed Date: 5/6/2015

Status: Non-Precedential

Modified Date: 11/6/2024

  •      Case: 14-20616      Document: 00513032144         Page: 1    Date Filed: 05/06/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-20616                       United States Court of Appeals
    Fifth Circuit
    FILED
    JAMES HINGA,                                                                 May 6, 2015
    Lyle W. Cayce
    Plaintiff - Appellant                                             Clerk
    v.
    MIC GROUP, L.L.C.,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:13-CV-414
    Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
    STEPHEN A. HIGGINSON, Circuit Judge:*
    James Hinga appeals the district court’s grant of summary judgment in
    favor of his former employer, MIC Group, LLC (“MIC”) on his Age
    Discrimination in Employment Act (“ADEA”) claim brought after his
    employment was terminated. Because Hinga has not established a prima facie
    case of discrimination by identifying similarly situated, younger employees
    who were not discharged, 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20616    Document: 00513032144     Page: 2   Date Filed: 05/06/2015
    No. 14-20616
    I. FACTS AND PROCEEDINGS
    A. Factual Background
    Hinga began working as a machinist for MIC’s predecessor in 2003. MIC
    assembles and sells actuators—industrial units used to control the flow of
    liquids and gasses. The specific product forming the basis for this lawsuit is
    the NEMA 7 actuator. A NEMA 7 actuator complies with National Electrical
    Manufacturers Association (“NEMA”) standards, making it appropriate for use
    in hazardous conditions. One NEMA standard requires the portion of the top
    casing that meets the bottom to be “lapped,” or flattened, to within .001 inches
    of level, and the corresponding portion of the bottom casing must be lapped to
    within .002 inches of level. This standard limits the size of a seam through
    which a spark may escape and ignite volatile gas in the surrounding
    environment.
    In October 2010, a distributor of MIC’s NEMA 7 actuators informed MIC
    that a batch of actuators had failed an inspection of the lapping tolerances.
    After an investigation, MIC recalled 662 actuators, including all those
    produced between June 1, 2010 and October 7, 2010. MIC employees inspected
    hundreds of actuators that were returned to MIC and found lapping violations
    in all of them. MIC estimated the cost of the recall to be at least $194,000.
    MIC’s subsequent investigation identified two individuals responsible
    for the recall: Hinga, for lapping the defective parts and not discovering that
    they failed the lapping tolerances, and Joel Watts, an employee in the Final
    Assembly department, for failing to properly inspect the parts. Hinga and
    Watts were given the option of resigning instead of being terminated, an option
    both accepted. Hinga was 76 years-old at the time of the events at issue.
    MIC’s investigation resulted in an Improvement Action Report. The
    Report determined that the root cause of the recall was that the lapping
    machine was not properly maintained and had no preventative maintenance
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    schedule or surface quality inspection schedule. The investigation found that
    a contributing factor was Hinga’s failure to inspect parts for flatness despite
    representing that he had performed the inspections. Watts’s failure to inspect
    and his representation that he had inspected also contributed to the recall. As
    a result of the recall and investigation, MIC implemented a formal inspection
    procedure—which made clear that machinists were responsible for inspecting
    a sample of each lot—and outsourced its lapping department.
    B. Proceedings
    On February 15, 2013, Hinga filed a complaint in the United States
    District Court for the Southern District of Texas claiming age discrimination
    under the ADEA and race and national origin discrimination under Title VII.
    On June 13, 2013, the district court granted MIC’s motion to dismiss Hinga’s
    race and national origin discrimination claim—because Hinga had not
    exhausted administrative remedies—and dismissed his claim for exemplary
    damages under the ADEA. 1 On August 29, 2014, the district court granted
    MIC’s motion for summary judgment on the ADEA claim. The district court
    found that Hinga had not set forth a prima facie case of age discrimination
    because he had not produced evidence that younger employees who were not
    discharged were similarly situated.               The district court also found,
    alternatively, that Hinga did not demonstrate a genuine dispute that MIC’s
    proffered reason for his termination was pretextual. Hinga timely appealed.
    II. DISCUSSION
    A. Standard of Review
    We review a district court’s grant of summary judgment de novo,
    applying the same standards as the district court. Rogers v. Bromac Title
    Servs., L.L.C., 
    755 F.3d 347
    , 350 (5th Cir. 2014).             Summary judgment is
    1   Hinga has not appealed the dismissal.
    3
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    appropriate “if the movant shows that there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.” Fed.
    R. Civ. P. 56(a). “A genuine dispute as to a material fact exists ‘if the evidence
    is such that a reasonable jury could return a verdict for the nonmoving party.’”
    
    Rogers, 755 F.3d at 350
    (quoting Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    ,
    248 (1986)). In deciding whether a fact issue exists, courts must view the facts
    and draw reasonable inferences in the light most favorable to the nonmoving
    party. Scott v. Harris, 
    550 U.S. 372
    , 378 (2007). “But [s]ummary judgment
    may not be thwarted by conclusional allegations, unsupported assertions, or
    presentation of only a scintilla of evidence.” 
    Rogers, 755 F.3d at 350
    (internal
    quotation marks omitted).
    Hinga urges us to adopt a gloss on the summary judgment standard and
    hold that “summary judgment should seldom be used in employment-
    discrimination cases.” Crawford v. Runyon, 
    37 F.3d 1338
    , 1341 (8th Cir. 1994),
    abrogated by Torgerson v. City of Rochester, 
    643 F.3d 1031
    (8th Cir. 2011).
    Hinga’s argument is meritless. As the Eighth Circuit recognized in overruling
    its prior precedent, cases establishing a “different standard of review for
    summary judgment in employment discrimination cases are contrary to
    Supreme Court precedent.” 
    Torgerson, 643 F.3d at 1043
    ; see also Moss v. BMC
    Software, Inc., 
    610 F.3d 917
    , 922 (5th Cir. 2010) (applying the traditional
    summary judgment analysis to an ADEA claim).
    B. ADEA Framework
    The ADEA makes it unlawful “to discharge any individual . . . because of
    such individual’s age.” 29 U.S.C. § 623(a)(1). “Under the ADEA, the plaintiff
    has the burden of persuasion to show that age was the but-for cause of [his]
    employer’s adverse action.” Jackson v. Cal-Western Packaging Corp., 
    602 F.3d 374
    , 377 (5th Cir. 2010) (internal quotation marks and citation omitted). A
    plaintiff may use circumstantial evidence to show discrimination. See 
    id. This 4
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    court applies the familiar burden shifting framework to claims of age
    discrimination based on circumstantial evidence. See 
    id. (citing McDonnell
    Douglas v. Green, 
    411 U.S. 792
    (1973)). Hinga must first establish a prima
    facie case of age discrimination by showing that he was (1) discharged; (2)
    qualified for the position; (3) within the protected class at the time of discharge;
    and (4) either (i) replaced by someone outside the protected class; (ii) replaced
    by someone younger; or (iii) otherwise discharged because of his age. 
    Id. at 378.
    If Hinga successfully sets forth a prima facie case, the burden shifts to
    MIC to produce a legitimate, nondiscriminatory justification for the discharge.
    See Machinchick v. PB Power, Inc., 
    398 F.3d 345
    , 350 (5th Cir. 2005). If MIC
    meets this burden, “the presumption of discrimination created by the plaintiff’s
    prima facie case disappears and the plaintiff must meet its ultimate burden of
    persuasion on the issue of intentional discrimination . . . by producing evidence
    tending to show that the reason offered by the defendant is pretext for
    discrimination.” 
    Id. (citations omitted).
    C. Prima Facie case
    The parties do not dispute that Hinga has shown the first three elements
    of a prima facie case of age discrimination. Hinga was qualified for the position
    and older than 40 when he was discharged. See 
    Jackson, 602 F.3d at 378
    ; 29
    U.S.C. § 631(a). Hinga contends that he has satisfied the fourth prima facie
    element—that he was “otherwise discharged because of his age”—because he
    was treated less favorably than “nearly identical, similarly situated
    individuals.” Bryant v. Compass Grp. USA Inc., 
    413 F.3d 471
    , 478 (5th Cir.
    2005).
    Hinga argues that three younger employees—Billy Ashorn, Kevin Glenz,
    and Ronald Warzon—were similarly situated and committed similar
    violations, yet were not discharged. The district court concluded that these
    individuals were not proper comparators because they worked in different
    5
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    No. 14-20616
    departments, had different responsibilities, and had better disciplinary
    histories than Hinga. On appeal, Hinga argues that summary judgment on
    this issue was improper and that the district court erred by failing to consider
    other factors that he says support a finding that the comparators are similarly
    situated.
    To qualify as “similarly situated,” the employees being compared
    generally must (1) have had the same job responsibilities; (2) have shared the
    same supervisor, or had their employment status determined by the same
    person; and (3) have comparable violation histories. See Lee v. Kansas City S.
    Ry. Co., 
    574 F.3d 253
    , 259–60 (5th Cir. 2009). A plaintiff must also show that
    “conduct that drew the adverse employment decision [was] ‘nearly identical’ to
    that of the proffered comparator who allegedly drew dissimilar employment
    decisions.” 
    Id. at 260.
    A comparator need not be entirely identical because
    this would impose a requirement that would be “essentially insurmountable.”
    
    Id. But “[i]f
    the difference between the plaintiff’s conduct and that of those
    alleged to be similarly situated accounts for the difference in treatment
    received from the employer, the employees are not similarly situated for the
    purposes of an employment discrimination analysis.” 
    Id. (internal quotation
    marks, citation, and alteration omitted).
    The evidence does not support Hinga’s claim that Ashorn, Glenz, and
    Warzon were appropriate comparators. First, and most critical, they did not
    have the same job responsibilities. MIC’s actuator production followed an
    assembly line-type process. In the first step, Hinga, a machinist, lapped parts
    used in the actuators. The comparators, who all worked in the Assembly
    department, assembled the parts into actuators.       Hinga was directly and
    primarily responsible for lapping the parts that were used in the actuators;
    those parts were defective. Ashorn, Glenz, and Warzon were responsible for
    assembling parts they retrieved from inventory; none had any responsibilities
    6
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    as a machinist to make parts, and the assemblies were not defective. 2 See
    Rodriquez v. Wal-Mart Stores, Inc., 
    540 F. App'x 322
    , 326 (5th Cir. 2013)
    (finding a manager and cashier not similarly situated because they had
    different job responsibilities); Player v. Kansas City S. Ry. Co., 
    496 F. App'x 479
    , 482 (5th Cir. 2012) (finding a foreman dissimilar to a train engineer
    because “they did not perform the same functions, have the same
    responsibilities, or have comparable disciplinary histories”). The “striking
    differences” between Hinga and the comparators “more than account for the
    different treatment they received.” 3 Wyvill v. United Companies Life Ins. Co.,
    
    212 F.3d 296
    , 305 (5th Cir. 2000).
    Neither did the comparators engage in “nearly identical” conduct. While
    the parties contest the extent of his inspection responsibilities, it is undisputed
    that Hinga, as a machinist, had at least some responsibility to check the
    flatness of his parts. 4 The comparators, in contrast, had no responsibility to
    inspect the parts for flatness. Because the parts were defectively lapped, not
    defectively assembled, and Hinga lapped the parts, Hinga’s conduct leading to
    his discharge was dissimilar from the comparators’ conduct. See Hoffman v.
    2 Joel Watts worked in the Final Assembly department, which is distinct from the
    department where the comparators worked. Unlike the comparators, Watts had an explicit
    responsibility to test for flatness, and his employment was also terminated.
    3 Hinga’s evidence does not create a genuine issue of material fact that the
    comparators had the same job responsibilities. Hinga’s conclusory statement that the other
    individuals “had similar duties and responsibilities” is not supported by the evidence. See
    
    Rogers, 755 F.3d at 350
    (holding that summary judgment cannot be defeated by conclusory
    allegations). Hinga’s affidavit states that he frequently assisted his fellow “team members”
    with various tasks, but asserts neither that he had the duty to assist the assembly workers,
    nor that they assisted him in lapping parts. Similarly, Joel Watts, who worked in Final
    Assembly, states in his affidavit, that he routinely assisted Ashorn, Glenz, and Warzon. But
    Watts does not state that he helped Hinga or that Hinga helped him.
    4 Hinga presents evidence that there were no written inspection guidelines, that he
    was not required to physically inspect every part, and that management approved his visual
    inspections. Whether Hinga satisfied his inspection responsibilities is not relevant to
    whether the comparators engaged in nearly identical conduct. What matters is that Hinga
    had some responsibility to inspect the lapped parts, while the comparators had none.
    7
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    Baylor Health Care Sys., 597 F. App’x 231, 233, 236–37 (5th Cir. 2015) (finding
    a nurse and a hospital’s unit clerk “excessively dissimilar” from an MRI
    technician because they worked in different departments and the technician
    was solely responsible for complying with safety standards); Martin v. Budget
    Rent-A-Car Sys. Inc., 
    432 F. App'x 407
    , 410 (5th Cir. 2011) (“Martin’s argument
    that [the comparators] are similarly situated simply because they are all
    responsible for ‘providing a service to customers’ does not meet the nearly
    identical standard. If it did, every employee of a company would be considered
    to have the same job responsibilities simply by virtue of providing customer
    service.”).
    Hinga and the comparators also have different violation histories. Hinga
    has one prior reprimand for “skipping proper quality checks” and “not showing
    [a trainee] how to properly check parts during large quantity runs.” He was
    also told to “pay more attention to quality of the product” in a 2010 performance
    evaluation. The record does not show that any of the comparators has any
    history of reprimands. See 
    Lee, 574 F.3d at 261
    (holding that the infraction
    record of employees must be “comparable” in order for them to be similarly
    situated). 5
    Without evidence of the same job responsibilities, nearly identical
    conduct, or similar violation histories, there is no prima facie case of
    discrimination. 6 Because we hold that Hinga has not established a prima facie
    5  It is undisputed that Hinga and the comparators shared the same supervisor. This
    is the only factor favoring Hinga.
    6 Hinga claims that the departments in which Hinga and the comparators worked
    were under the same roof and in close proximity, that Hinga and each comparator worked a
    similar shift each day, and that Hinga and each comparator previously worked at MIC’s
    predecessor and moved to MIC when it was acquired. We can find no reason or caselaw why
    these points are relevant to showing similarity for the purpose of establishing a prima facie
    case.
    8
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    case of age discrimination, we need not address whether Hinga has shown that
    MIC’s proffered reason for termination was pretextual.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s judgment.
    9