UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-10660
Summary Calendar
JOSEPH J. SCUBELEK,
Plaintiff-Appellant
MILLER PRODUCTS, INC. d/b/a MPI LABEL SYSTEMS
OF TEXAS, ET AL.,
Defendants
VERSUS
MILLER PRODUCTS, INC. d/b/a MPI LABEL SYSTEMS OF TEXAS,
Defendant-Appellee
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CV-2619-T)
February 20, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
JOHN M. DUHÉ, Circuit Judge:1
Joseph Scubelek (“Scubelek”) sued Miller Products Inc. (“MPI”)
for violating the Age Discrimination in Employment Act (“ADEA”).
He claimed that MPI laid him off during its reduction in force
because he was the oldest of the shift supervisors. The district
1
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opinion should not be published and is not precedent except under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.
court granted summary judgment for MPI and we affirm.
BACKGROUND
MPI, through Steve Brinker (“Brinker”), hired Joseph Scubelek
(“Scubelek”) in 1989 to work as a shift supervisor. In 1991, a
competitor offered Scubelek a job as production manager; however,
Scubelek stayed at MPI when Brinker was able to negotiate a new
compensation package for him. In 1992, MPI agreed to do business
with Rubbermaid, and as a result, in early 1993 increased its
production capacity. In spite of the new business, the expected
increase in sales never materialized and the second quarter profits
dropped. Consequently, MPI decided to reduce the number of shifts
which required firing one of the three shift supervisors. To
determine who would be fired, Brinker and Phil Norris, MPI’s
general manager of the Texas plant, used layoff worksheets that
compared quantity/quality of work, job knowledge, attendance, team
work, safety, conduct/discipline, and overall evaluation. Brinker
made the initial evaluations and Norris approved them. They
decided that of the three supervisors, Scubelek scored lowest in
quantity/quality of work and team work. As a result, Scubelek was
fired.
Scubelek sued MPI claiming that his firing resulted from age
discrimination and thus violated the ADEA. MPI responded that
Scubelek was fired because in the evaluation of supervisors he
scored lowest. MPI then successfully moved for summary judgment
2
arguing that Scubelek had failed to show discrimination was the
real reason for his firing. Scubelek appeals.
ANALYSIS
A. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate if there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. PRO. 56.
B. THE MERITS
Scubelek argues that the district court erred in granting
summary judgment because there was sufficient evidence to show that
MPI fired Scubelek because of his age. In Rhodes v. Guiberson Oil
Tools, 75 F.3d 989 (5th Cir. 1996) (en banc), this Court stated
that an ADEA plaintiff may avoid summary judgment if the evidence
taken as a whole “(1) creates a fact issue as to whether each of
the employer’s stated reasons was what actually motivated the
employer and (2) creates a reasonable inference that age was a
determinative factor in the actions of which the plaintiff
complains.” Id. at 994. Scubelek contends that the evidence he
presented did create an inference of pretext.
Scubelek first argues that in the months before he was fired,
Brinker allegedly made several age based remarks to Scubelek
calling him “old man” and stating “that’s the first thing that goes
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is your mind when you get your age”. These remarks, though, cannot
be considered evidence of age discrimination. Scubelek concedes
that the remarks were not part of the summary judgment proceeding
and are not in the record on appeal. This court cannot consider
matters that are not part of the record on appeal. Galvin v. OSHA,
860 F.2d 181, 185 (5th Cir. 1988). Brinker’s remarks to Scubelek
are not, however, Scubelek’s only evidence of age based remarks.
Brinker allegedly told two others that Scubelek was an “old man”
and “no spring chicken”. We agree, though, with the district court
that these remarks are stray remarks and are not evidence of age
discriminations. E.E.O.C. v. Texas Instruments, 100 F.3d 1173,
1181 (5th Cir. 1996). Scubelek contends that these remarks cannot
be stray remarks because they were made by the person who was an
integral part of the decision to fire Scubelek. We reject this
argument. In Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.
1996), we stated that if the same actor hired and fired the
plaintiff, then the inference was that age discrimination was not
the motive behind the firing. Scubelek has not shown this court
any evidence to overcome this inference.2
2
Scubelek argues that the district court erroneously required him
to show the context in which the remarks occurred when it stated
that it did not know “the context or time period in which these
comments were made”. However, Scubelek takes this comment out of
context. The district court stated “[
n]ot knowing the context or time period in which these comments
were made, the Court presumes that they were disparaging and
disrespectful to [Scubelek].” Thus, the district court was not
requiring that Scubelek show context but was merely making an
assumption to Scubelek’s benefit.
4
Scubelek next argues that his evidence that he was qualified
to perform his job raises a material fact issue that he was fired
because of his age. Here, the facts show that MPI was firing
employees as a result of a reduction in force. This Court has held
that in a reduction in force context the fact that an employee is
qualified is less relevant. E.E.O.C. v. Texas Instruments, 100
F.3d at 1181. An employer may have to make cut backs despite a
worker’s competent performance. Id. However, if Scubelek can
produce evidence that he was fired in favor of a younger, clearly
less qualified individual, then a genuine material fact issue
exists. Scubelek does not make any such showing.3
Finally, Scubelek contends that the district court erred in
not considering his evidence that the reduction in force was a mere
pretext for age discrimination. He first proffers a notation, “if
5% over 40--don’t have”, which Phil Norris wrote when he was
deciding whom to lay off. Norris explained that the notation meant
do not layoff more than 5% of the over 40 employees. Scubelek
states that the MPI workforce had 28.5% of its employees over 40
before the lay off and 23.9% afterward. Thus, he contends that MPI
violated its own directive. This argument is wrong because the
reduction stayed under 5%, in fact at 4.6%. Thus, MPI did not
3
Scubelek offered evidence that he was not given any disciplinary
warnings and that he may have had more job experience than one of
the retained supervisors. However, this evidence does not show that
Scubelek was clearly better qualified than the retained
supervisors.
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violate its own directive. Nor does the fact that MPI was
conscious of not violating the ADEA prove that its reduction in
force was mere pretext for firing Scubelek.
Scubelek’s other evidence to show pretext is (1) that Brinker
was fired from MPI and his previous job for sexual harassment, (2)
that Brinker sent one of the remaining supervisors to a conference
instead of Scubelek, and (3) that the same supervisor and Brinker
occasionally went to dinner. We agree with the district court that
this evidence is immaterial to his claim. Brinker’s alleged
propensity towards gender bias does not prove age discrimination.
As for the conference and the dinners, that evidence shows at best
a preference for the one supervisor. It does not show in any way
that the preference was based on age. We, therefore, affirm the
district court’s grant of summary judgment.
AFFIRMED.
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