Hoppens v. General Nutrition

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-20314

Summary Calendar
_____________________

MARILYN JEAN HOPPENS,

Plaintiff-Appellant,

v.

GENERAL NUTRITION CENTER,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-855)
_________________________________________________________________
September 24, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Marilyn Jean Hoppens appeals the district court’s grant of

summary judgment to General Nutrition Center (GNC) in her age

discrimination suit for her discharge. The district court found

that Hoppens failed to raise a fact question on whether GNC’s

nondiscriminatory reason for her termination was a pretext for

discrimination. 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this opinion should not be published and is not precedent except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. FACTUAL BACKGROUND

On February 13, 1995, Appellee GNC terminated Appellant

Hoppens who, at age 51, was a senior store manager in Pasadena,

Texas. According to GNC, Hoppens was terminated because a

January deposit from her store was lost when a subordinate

dropped the deposit into the envelope drop at the bank rather

than the locking dropbox as she was told was allowable by

Hoppens. Hoppens claims a bank official told her that this was

acceptable, and her supervisor, Al Demeke, told her to follow the

bank’s instructions on deposits. Initially two deposits were

missing, but one was later found jammed into the envelope drop

slot. The other deposit, which contained about $1400, was never

found.

Craig Kidd from GNC’s security department investigated the

loss. Upon Kidd’s transfer to the area, Hoppens claims that

Demeke told her, well before the loss of the deposits, that Kidd

was responsible for the termination of five “long term” managers

in the San Antonio area. Hoppens also claims that Kidd subjected

her to excessive scrutiny and tried to set her up to make

mistakes.

As a result of the investigation of the lost deposit, Demeke

terminated Hoppens and the subordinate who had made the drops for

failing to follow company cash handling procedures by not using

the locking dropbox. Hoppens was discharged specifically for

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failing to ensure that company policy was complied with in making

a bank deposit. Company policy recommends discharge for this

violation. The manager who replaced Hoppens at the store was 39

years old.

Hoppens compares her treatment by GNC to that of Toni Lane,

a 32-year-old manager, who failed to properly follow company

procedure for refunds and cancellations. Lane received a written

warning for this violation as was recommended by company policy.

Hoppens filed suit in the United States District Court for

the Southern District of Texas under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634, after receiving the

proper right-to-sue letter from the EEOC. GNC moved for summary

judgment and the district court granted its motion. Hoppens

appeals.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Texas Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d 153,

156 (5th Cir. 1996). Summary judgment should be granted “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 a judgment as a matter of law.”

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FED. R. CIV. P. 56(c). In employment discrimination cases, we

focus on whether a genuine issue exists as to whether the

employer intentionally discriminated against the defendant.

Grimes v. Texas Dep’t of Mental Health and Mental Retardation,

102 F.3d 137, 139 (5th Cir. 1996).

III. DISCUSSION

Hoppens contends that there exist genuine issues of material

fact as to whether GNC produced a legitimate nondiscriminatory

reason for her discharge and as to whether or not this reason was

merely a pretext for age discrimination. She therefore argues

that the district court erred in granting GNC’s motion for

summary judgment.

A. The Shifting Burdens of ADEA Claims

In the Title VII context, the Supreme Court has developed a

burden-shifting framework for the presentation of proof. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep’t

of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The Fifth Circuit

has adopted this framework for ADEA cases as well. Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 992 & n.3 (5th Cir. 1996) (en

banc). First, the plaintiff must present a prima facie case of

age discrimination, which is established when the plaintiff

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demonstrates that “(1) he was discharged; (2) he was qualified

for the position; (3) he was within the protected class at the

time of discharge; and (4) he was either i) replaced by someone

outside the protected class, ii) replaced by someone younger, or

iii) otherwise discharged because of his age.” Bodenheimer v.

PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Once the

plaintiff establishes a prima face case by a preponderance of the

evidence, an inference of unlawful discrimination arises. See

Hicks, 509 U.S. at 506; Rhodes, 75 F.3d at 992.

This inference shifts the burden of production to the

defendant who must then produce evidence of a legitimate,

nondiscriminatory reason for the action it took to rebut the

inference of unlawful discrimination. Rhodes, 75 F.3d at 992-93.

The employer’s burden of production is met by evidence that, “if

believed by the trier of fact, would support a finding that

unlawful discrimination was not the cause of the employment

action.” Hicks, 509 U.S. at 507 (citing Burdine, 450 U.S. at 254-

55 & n.8). The presumption of discrimination only shifts the

burden of production, with the burden of persuasion remaining on

the plaintiff. Hicks, 509 U.S. at 507. Once the employer has

met the burden of production, the inference of unlawful

discrimination raised by the prima facie case disappears.

Burdine, 450 U.S. at 255 & n.10; Rhodes, 75 F.3d at 993.

With the inference of unlawful discrimination gone, the

plaintiff must demonstrate that the employer’s stated reason was

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merely a pretext for discrimination. To survive summary

judgment, the plaintiff’s evidence of pretext and its prima facie

case together must “(1) create[] a fact issue as to whether each

of the employer’s stated reasons was what actually motivated the

employer and (2) create[] a reasonable inference that age was a

determinative factor in the actions of which plaintiff

complains.” Rhodes, 75 F.3d at 994; see also Hicks, 509 U.S. at

515 (“[A] reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was false

and that discrimination was the real reason.”). This two-pronged

analysis of evidence of a pretext for discrimination serves to

enforce the requirement that age motivate the discrimination in

order for a claimant to be protected under the ADEA, which does

not redress an employer’s general unfairness. See Rhodes, 75

F.3d at 994. This requirement also keeps the courts from

becoming personnel managers reviewing the fairness or judgment of

business decisions. See Bienkowski v. American Airlines, Inc.,

851 F.2d 1503, 1507-08 (5th Cir. 1988).

B. GNC’s Articulated Nondiscriminatory Reason for Hoppens’s
Discharge

We can begin our analysis with GNC’s nondiscriminatory

reason for Hoppens’s discharge because GNC does not challenge

whether Hoppens established a prima facie case on appeal. As the

district court noted, GNC produced evidence of a legitimate,

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nondiscriminatory reason for Hoppens’s discharge. GNC entered

into evidence the Employee Separation Report, which stated the

reason for her discharge: “Missing Deposits. Manager fail [sic]

to comply with company policy for store bank deposits. $1421.85

loss on 1/14/95.” GNC also entered into evidence company

policies regarding bank deposits and recommended levels of

discipline for different violations of company policy. These

documents showed that discharge was the recommended action for a

bank deposit violation. Both parties agree that the loss

occurred.

The above evidence, if believed, would support a finding

that age discrimination was not the cause of Hoppens’s discharge.

GNC has met its burden of production,1 and therefore, the

inference of unlawful discrimination disappears. Hoppens argues

that GNC has failed to meet its burden of production because

GNC’s reason and evidence are “unworthy of credence,” but Hicks

states that the defendant’s burden is met by evidence that if

believed would support the inference and is not subject to a

credibility assessment at this stage. Hicks, 509 U.S. at 509.

C. Hoppens’s Evidence of Pretext for Age Discrimination

1
Hoppens contends that GNC cannot articulate a legitimate,
nondiscriminatory reason for her discharge because it lacks a
written policy clearly dealing with her case, but this
requirement would increase GNC’s burden beyond that required by
Hicks.

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 To succeed in opposing the motion for summary judgment,

Hoppens must present evidence to create a fact issue as to

whether GNC’s reason was the actual reason for her discharge and

to create a reasonable inference that age was a determinative

factor in her discharge. See Rhodes, 75 F.3d at 994. The

district court held that Hoppens created a factual issue as to

whether she actually violated company policy, but failed to

create a reasonable inference of age discrimination.

The majority of Hoppens’s evidence relates to how she was

treated unfairly by Kidd before and during the investigation.

She notes that the policy for termination for loss of a deposit

provides for flexibility in the case of extenuating

circumstances, but she was not given the benefit of such

provision despite her long service to GNC. She notes the

ambiguity in the written policy as to whether it applies just to

bank bags or also to the dropboxes at banks. One bank official

surmised that the deposit was lost when someone fished it out of

the envelope slot. The above evidence does raise a factual

question as to whether Hoppens actually violated GNC’s policies,

which in turn raises the factual question of whether GNC’s stated

reason for her discharge was the actual reason.

Proving that GNC’s articulated reason is false, however, is

not sufficient to defeat summary judgment because such proof does

not necessarily show that the true reason was related to age.

See Hicks, 509 U.S. at 524; see also Mayberry v. Vought Aircraft

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Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (holding that employer’s

error in applying its policy does not show discriminatory motive)

(citing Little v. Republic Refining Co., 924 F.2d 93, 97 (5th

Cir. 1991)). Hoppens must also present evidence implicating age

as a determinative factor in her termination. Rhodes, 75 F.3d at

994. To meet this burden, Hoppens compares her treatment to that

of a younger manager, Toni Lane, and presents a comment from

Demeke about Kidd.2

To establish discriminatory motive through the different

treatment of another employee, that employee must have been

treated differently in “nearly identical” circumstances.

Mayberry, 55 F.3d at 1090; see also EEOC v. Brown & Root, Inc.,

688 F.2d 338, 339-40 (5th Cir. 1982) (comparable employees had

the exact same problem as plaintiff--“freezing” when working up

high); Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th

Cir. 1981) (comparable employees had committed exact same

violation--absenteeism). The nearly identical circumstances can

include situations where the two comparable employees did not

commit the same act but committed acts of comparable seriousness.

See McDonnell Douglas, 411 U.S. at 804.

2
Hoppens also alleges poor treatment by Kidd before and
after the loss of the deposit. She has presented no evidence
that Kidd treated her any differently than any other manager or
employee, and thus the evidence does not suggest any
discriminatory motive.

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 The record shows that Hoppens was discharged for the loss of

the deposit because she failed to ensure that a deposit was made

according to company policy. Hoppens does not dispute that this

violation is the one for which GNC discharged her or that

discharge is the recommended action. Lane on the other hand did

not lose a deposit but was given a written warning for “Fail

[sic] to implement company procedure on cancell [sic] & no

sales.” GNC classifies this violation as a “failure to follow

proper refund policies and procedures,” for which company policy

recommends oral and written warnings before termination.3

Hoppens, on the other hand, characterizes Lane’s violation as

“failure to properly handle refund transactions” and as a cash

handling violation for which discharge is the recommended action.

By classifying the violation differently, Hoppens attempts to

raise Lane’s violation to a level of seriousness comparable to

her own violation in terms of the recommended disciplinary

action.

Lane’s circumstances are not nearly identical to Hoppens’s

circumstances. Hoppens has presented no evidence indicating that

Lane’s conduct resulted in any loss, and Hoppens does not dispute

that Lane did not lose a deposit. The fact that Hoppens’s

3
Hoppens contends in her reply brief that the documents
showing the recommended action for Lane’s violation were not part
of the trial court record and therefore cannot support the motion
for summary judgment. Our review of the record, however, found
the documents in the trial record attached to defendant’s reply
memorandum.

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violation resulted in a $1400 loss makes it more serious than

Lane’s. Hoppens has presented no evidence that the

classification of Lane’s violation was unusual or in error; she

has only shown that she would classify Lane’s violation

differently. As the district court held, Lane is not similarly

situated to Hoppens because the violations are not of comparable

seriousness. Their circumstances are not nearly identical, and

therefore the comparison does not support a reasonable inference

of age discrimination.

Demeke’s comment about Kidd does not show discrimination

based on age. No evidence is presented on the circumstances of

the discharge of the “long term” managers. The comment by Demeke

does not suggest that the managers were discharged for anything

other than legitimate reasons. Without more, the comment has

such little probative value that it does not give rise to a

reasonable inference of discrimination. We therefore conclude

that Hoppens has presented no evidence creating a reasonable

inference as to whether age was a determinative factor in her

discharge, and thus she has failed to show a genuine issue of

material fact about whether GNC’s reason is a pretext for

discrimination.4

4
Hoppens also contends she was denied a jury trial in
violation of the Seventh Amendment to the United States
Constitution, but because she failed present an issue of material
fact, this argument has no merit.

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 IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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