UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-60425
Summary Calendar
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TOM GLASGOW; SHERON GLASGOW,
Plaintiffs,
TOM GLASGOW,
Plaintiff-Appellant,
versus
THE SHERWIN-WILLIAMS COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:94-CV-126-S-D)
_________________________________________________________________
May 29, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Tom Glasgow was terminated by Sherwin-Williams Company
after working there for nearly 30 years. He asserts that the
company’s alleged basis for his termination -- that he sexually
harassed an employee and threatened two other employees with a
*
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this opinion should not be published and is not precedent except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.
knife during a national sales meeting -- was a pretext for age
discrimination. The district court rendered summary judgment
against him on the age discrimination and related state court and
contract claims, and he has appealed. Finding no error, we affirm.
Glasgow denies that he engaged in gross and intimidating
conduct toward fellow male and female employees during the 1992 and
1993 sales meetings that they described. Notwithstanding his
denials, the company credited his accusers and discharged him.
Apart from his assertion that the incidents did not occur, or did
not occur in the way others have described, Glasgow has no evidence
that he was terminated because of his age. He asserts that two
considerably younger employees also engaged in improper conduct but
were not disciplined. The district court found, however, that
these incidents were distinguishable, because the other employees’
misconduct occurred when they were outside the company surroundings
and on their own. The district court’s distinction is a sensible
one under these circumstances.
Glasgow contends that this court, alone among the federal
circuits, applies the wrong test to determine whether a
discrimination claim will go to the jury. Whether or not that is
true, the district court here correctly applied our court’s test,
articulated in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.
1996) (en banc), that an age discrimination plaintiff can only
avoid summary judgment upon proof (1) creating a fact issue as to
whether each of the employer’s stated reasons actually motivated
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his discharge; and (2) creating a reasonable inference that age was
a determinative factor in the discharge. Rhodes, 75 F.3d at 944.
Neither the treatment of the non-similarly situated but younger
employees, nor the “stray remarks” attributed to Sherwin-Williams
executives at some unspecified point in the past were sufficient to
create a fact issue as to whether Glasgow was terminated because of
his age.
Glasgow also contests the district court’s rejection of
his claims based on wrongful termination, intentional or negligent
infliction of emotional distress, and invasion of privacy under
Mississippi law. The district court’s able analysis leaves little
for us to add.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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