UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20956
Summary Calendar
M. YVONNE RICHARDS
Plaintiff-Appellant,
VERSUS
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO.
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-111)
January 11, 1999
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Following termination from her employment by American General
Life and Accident Insurance Company (“American”), Appellant sued
alleging age and gender discrimination and retaliatory discharge.
The district court granted summary judgment for American. Richards
appeals. We affirm.
The controlling issue is whether Appellant has created an
issue of material fact as to any or all of her claims. We review
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this opinion should not be published and is not precedent except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.
de novo, and a substantial conflict in evidence must exist to
create a jury question on the issue of discrimination. Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc).
Thus, Appellant can defeat the motion only if the evidence, taken
as a whole: (1) creates a fact issue as to whether the employer’s
stated reason for the discharge was pretext; and (2) creates a
reasonable inference that [age, gender or retaliation] was a
determinative factor in the employment decision. Id. We view the
evidence in the light most favorable to Appellant.
Richards had been employed by American for thirty-two years.
At her termination, she was Associate Director of the Sales/Mass
Marketing department. This department was combined with the Mass
Marketing Administration department and nine jobs were eliminated,
including Richards’. Thereafter, and as part of the restructuring,
two new positions entitled Senior Writing Consultants were created,
and McConville and Parker were employed in those jobs. Both were
under forty years of age. Also, American transferred the position
of underwriting mass marketing, from the underwriting department to
the mass marketing group which was the department in which
Appellant had formerly worked. Huff, who held the job in
underwriting, was transferred with it to mass marketing.
ANALYSIS
Because Appellant relies on the identical evidence to
establish her age and gender discrimination claims, and because the
same standard is applicable to each, we discuss them together.
Richards contends that the proffered nondiscriminatory reason
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tendered for her termination, reduction in force, is pretextual
because she had the same or superior qualifications than the
younger persons hired and the male retained for underwriting
positions after the reduction in force. In support, she offers her
deposition testimony (which she concedes is insufficient standing
alone) and the affidavits of Lacy and Gott. The district court
found that Lacy was not competent to determine whether Richards was
better qualified because Lacy had never reviewed Richard’s work or
the qualifications of those hired; and was not privy to American’s
objectives in the restructuring or the skills required to
accomplish that objective. Lacy’s affidavit was, therefore, not
probative of pretext. Our review of the record convinces us the
district court was correct.
Further, the district court reasoned that Gott’s affidavit
merely showed that, at most, Appellant’s termination may have been
arbitrary or unjustified, but does not show that the termination
was unlawfully motivated. Rhodes, 75 F,3d at 994. Again we agree.
Finally, the district court determined that there was no
evidence that Appellant’s age motivated American’s decision to
terminate her. Our review of the record shows this to be correct.
We turn now to Appellant’s retaliatory discharge claim. She
contends first that she participated in an earlier sexual
harassment investigation of American’s president, and Gott’s
affidavit states that, for that reason, the president wanted
Richards fired. This, she argues, creates a jury issue.
The district court correctly found that Gott’s affidavit does
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not indicate that Richards was terminated because of her
participation in the investigation of the president. The ultimate
issue in a retaliation case is “but for” causation. Long v.
Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).
Examination of the evidence in the light most favorable to Richards
shows there is no substantial fact issue created that, but for her
participation in the investigation, she would not have been
terminated. She relies solely on Gott’s affidavit and points to no
substantial conflict in the evidence regarding the proffered
explanation for her termination. Indeed, the record indicates the
president was unaware of Richards’ participation in the
investigation. Therefore, under the Rhodes rational, Appellant has
not produced sufficient evidence to create a jury question.
Additionally, the district court properly considered the lapse of
time (two years) between Appellant’s participation in the
investigation and her termination. Shirley v. Chrysler First,
Inc., 970 F.2d 39, 44 (5th Cir. 1992).
AFFIRMED.
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