UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60117
Summary Calendar
ROBERT P. JARRELL,
Plaintiff-Appellant,
versus
F-S PRESTRESS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(2:97-CV-108-PG)
December 8, 1998
Before POLITZ, Chief Judge, WIENER and DENNIS, Circuit Judges.
POLITZ, Chief Judge:*
Robert P. Jarrell appeals an adverse summary judgment in his age
discrimination1 claim against his former employer, F-S Prestress, Inc. For the
reasons assigned, we affirm.
BACKGROUND
Prior to his termination at age 53, Jarrell served as plant manager for the
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
29 U.S.C. §§ 621-634.
Hattiesburg, MS branch of F-S Prestress. In 1993, after becoming the company’s
general manager, Mark Fairchild met with Jarrell and informed him of the
disappointing performance by the Hattiesburg branch and of the possibility of lay-
offs, or even sale or closure of the plant. In the fall of 1994, after no substantial
improvement in the operations’ profitability, F-S Prestress cut costs by reducing the
salaries of the three on-site managers, each of whom were above the age of 40.
Over the next year, the operations did not improve to the satisfaction of F-S
Prestress management. Believing that the plant manager played a critical role in
the performance of the company, F-S Prestress terminated Jarrell in February 1996.
That same month, F-S Prestress retained Gary Johnson as its new plant manager.
Johnson, who is older than Jarrell, became responsible for all of the duties
previously shouldered by Jarrell. Because a week or two passed between the time
of Jarrell’s termination and Johnson’s retention, Fairchild and another manager,
both of whom were younger than Jarrell, temporarily assumed the duties previously
performed by Jarrell.
Jarrell sued F-S Prestress under both federal and state law, alleging that its
decision to fire him was based upon his age. Seeking to establish a discriminatory
motive, Jarrell described statements made by its employees, such as “We are not
doing it the old way anymore,” “We feel sorry for you older people,” and “You are
past your prime.” F-S Prestress moved for summary judgment. In considering
Jarrell’s ADEA claim, the district court determined that neither the stray remarks
nor the decrease in Jarrell’s salary constituted direct evidence of age
2
discrimination. The district court applied a modified McDonnell Douglas test to
determine whether Jarrell established a prima facie case of discrimination. The
district court found that Jarrell had not established the essential element that he was
replaced by one outside the protected class or by one substantially younger than
himself, and dismissed the ADEA claim. The state law claims were dismissed
without prejudice. Jarrell timely appealed.
ANALYSIS
In employment discrimination cases, we review summary judgments de novo,
applying the same standard as the district court.2 Federal rules provide for
summary judgment when there exists no genuine issue of material fact.3 A dispute
concerning a material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.4 In making this determination,
the court must draw all justifiable inferences in favor of the nonmoving party. 5
The ADEA protects those at least 40 years of age from discharge because of
their age, and it provides them with a private cause of action.6 ADEA plaintiffs
may prove age discrimination by direct or circumstantial evidence. 7
Jarrell contends that the district court erred in granting summary judgment
2
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993).
3
FED. R. CIV. P. 56(c).
4
Bodenheimer, 5 F.3d at 956.
5
Id.
6
29 U.S.C. §§ 623, 626, 631.
7
Harrington v. Harris, 118 F.3d 359 (5th Cir.), cert. denied, 118 S. Ct. 603 (1997).
3
because he maintains that he established discriminatory motive directly through the
aforementioned statements and through the reduction in salaries of Jarrell and two
other managers who were over 40 years of age. We first consider the above-quoted
statements. Direct evidence is any statement revealing a discriminatory motive on
its face without resort to inference.8 In the alleged comment “not doing it the old
way,” the term “old” modifies “way.” Any link to Jarrell’s age would have to be
inferred, but direct evidence must reveal discriminatory motive on its face, not by
inference.
Nor do the other alleged statements constitute direct evidence of
discriminatory motive; they are more accurately described as stray remarks. The
statement about “feel[ing] sorry for you older people” merely reflects recognition
of one’s age, not discriminatory motive. Additionally this statement, like the
statement about “[being] past your prime,” was made in 1993 or 1994, which is too
remote in time – and too vague in substance – to be probative of the alleged age
discrimination in 1996.9 In sum, we conclude that the comments cited by Jarrell
do not constitute direct evidence of age discrimination.
Nor may the reduction in salary of the three managers in the Hattiesburg
8
Portis v. First Nat’l Bank of New Albany, MS, 34 F.3d 325 (5th Cir. 1994) (Title VII
context); Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858 (5th Cir. 1993) (same).
9
Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir. 1995) (finding too remote
and vague to evidence age discrimination against plaintiff comments that a younger co-
worker was “getting old” and “losing her memory”); Atkin v. Lincoln Property Co., 991
F.2d 268 (5th Cir. 1993) (finding too remote and vague to evidence age discrimination a
comment that plaintiff was “getting up there in years” when made one year prior to
termination).
4
plant when plant operations did not meet the demands of higher management be
deemed dispositive proof of discriminatory motive based on age. The summary
judgment record reflects that non-management employees over 40 years of age did
not have their pay reduced. We are not persuaded that the reductions in salary
evidence an age-discrimination motive by F-S Prestress.
The summary judgment record does not support the essential finding that
Jarrell was replaced by someone substantially younger than himself. This failure
eviscerates the prima facie case of discrimination and requires dismissal of the
ADEA claim.
The judgment appealed is AFFIRMED.
5