UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60627
Summary Calendar
LAWRENCE W. SPARKS
Plaintiff-Appellant,
VERSUS
L.M. BERRY & COMPANY D/B/A
THE BERRY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:97-CV-699-BN)
June 8, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges:
PER CURIAM:*
Lawrence W. Sparks (“Sparks”) filed a claim of age
discrimination against his former employer, L.M. Berry & Company
(“Berry”), under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621, and under state law. The district court granted
summary judgment in favor of Berry. Sparks appeals. We AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
*
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this opinion should not be published and is not precedent except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.
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Berry sells telephone directory advertisements for various
telephone companies and their affiliated directory publishers in 23
states. Berry is the authorized sales agency for BellSouth
Advertising & Publishing Corporation. BellSouth Advertising
publishes the BellSouth Real Yellow Pages in Kentucky, Tennessee,
Louisiana, Alabama, and Mississippi.
Sparks had worked in the field of directory advertising sales
for a number of years. Prior to working for Berry, Sparks worked
in South Carolina in the field of directory advertising sales.
When Sparks wanted to move to Mississippi, his manager in South
Carolina put Sparks in contact with one of Berry's regional
managers, Pete Loungo (“Loungo”). Loungo contacted the Mississippi
Division manager, Ty Gettis.
Berry hired Sparks on January 3, 1993 to work in Berry's
Mississippi Division as a premise sales representative. At the
time of his hiring, Sparks was 53 years old and the oldest person
hired by Berry during the six year period from 1992 to 1997.
As a sales representative, Sparks demonstrated considerable
success. Sparks had customers all over the State of Mississippi,
met sales goals, and made money for the company. In 1996, Sparks
won the President's Club award for the top salesman in the
district. Sparks also placed second among all salespersons in
Memphis, Tennessee for work in the second half of 1996.
Berry, however, had a number of problems with Sparks' behavior
and his handling of company accounts. Sparks received counseling
sessions with managers because of his behavior. Berry reprimanded
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Sparks for violations of company procedures. In addition, Sparks
was suspended for one day from his employment for improper handling
of company guidelines and procedures. Further, Berry's customers
reported a number of complaints with respect to the services that
Sparks provided.
Berry contends that two serious ethical violations led to
Sparks' termination. First, Berry contends that Sparks forged
initials on an account with CPS Pools and Spas (“CPS”). Shirley
Draughn, (“Draughn”), an employee at CPS, alleged that Sparks
forged her signature on a consumer tips addendum of CPS' paperwork.
Sparks' manager, Jody Washington (“Washington”), made a site visit
and spoke with Draughn about the signature. Draughn stated that
the signature had been initialed, but that she never initialed a
signature. Draughn could not locate CPS' copy of the consumer tips
addendum.
Upon investigating the alleged forgery within Berry,
Washington spoke with Cindy Harrell (“Harrell”), a clerk at Berry.
Harrell explained that she asked Sparks about the consumer tips
addendum to the CPS account because Sparks did not turn it in with
his paperwork. Harrell reported that Sparks said he would drive
back to CPS, obtain the form, and give it to Harrell. Sparks
returned with the form fifteen minutes later. Washington, however,
believed that the drive would have taken approximately 40 minutes
to CPS and back. Thus, Washington suspected that Sparks initialed
the signature on the form.
Second, Berry investigated an ethical violation concerning
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Sparks' account at Healthcare Suppliers (“Healthcare”). Lisa
Williamson (“Williamson”), an employee at Healthcare, complained
that the Healthcare paperwork listed her as the authorized person
on the account but that she did not authorize $1,484.00 in
advertising. Further, Williamson said that she did not even speak
with Sparks. Williamson's boss, David McNamara (“McNamara”),
stated that the advertising had to be canceled because Healthcare
had changed its name.
On January 10, 1997, Washington and Anita Moore (“Moore”), the
Mississippi Operations Manager, met with Sparks to discuss the CPS
and Healthcare accounts. Sparks denied Draughn's allegation that
he had forged the signature. When asked about his return trip to
CPS, Sparks replied that it was not fifteen minutes later, but
simply later that day.
Sparks also explained that he spoke with McNamara regarding
the Healthcare account. Sparks noted that McNamara gave him
Williamson's name as the contact person on the Healthcare account.
Further, Sparks explained that his manager, Bob Glass, gave Sparks
permission to authorize the account via telephone (“per tel”),
because Healthcare was renewing their account.
On January 14, 1997, Moore and Washington met with Sparks
again. Moore questioned Sparks again about the signature on the
consumer tips addendum. Sparks claimed that the signature belonged
to Draughn. In this meeting, however, Sparks claimed that he did
not return to the CPS office. Instead, Sparks explained that the
addendum had been in his briefcase all along. When Sparks was
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questioned about the inconsistency in his stories, he denied
telling Washington and Moore that he had made a return trip to CPS.
At this time, Moore also told Sparks that he was responsible for
documenting the correct name and information on the Healthcare
account. Moore then terminated Berry on the basis of his ethical
violations.
Sparks filed a complaint against Berry in federal court
alleging that Berry terminated him in violation of the ADEA.
Further, Sparks asserted state law claims for breach of contract
and intentional infliction of emotional distress. Berry filed a
Motion for Summary Judgment arguing that Sparks could not establish
a prima facie case of age discrimination under the ADEA.
The district court found that Sparks did not establish a prima
facie case of age discrimination. The district court also
dismissed Sparks' state law claims as a matter of law.
II. DISCUSSION
A. Motion for Leave to File Notice of Appeal.
The district court granted summary judgment in favor of Berry
in this action on August 4, 1998. Under Fed. R. App. P. 4(a)(1),
Sparks had thirty days, until September 3, 1998, to file a notice
of appeal. On September 4, 1998, Sparks' counsel realized that
the time to file the notice of appeal had passed.
Under Fed. R. App. P. 4(a)(5), the district court may extend
the time to file a notice of appeal if (i) a party so moves no
later than 30 days after the time prescribed by the Rule 4(a)
expires; and (ii) that party shows excusable neglect or good cause.
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Sparks' counsel filed a Motion for Leave to File Notice of Appeal
with the district court pursuant to Rule 4(a)(5) on September 4,
1998. The district court granted Sparks' Motion for Leave to File
Notice of Appeal, finding that Sparks' counsel demonstrated
excusable neglect pursuant to Fed. R. App. P. 4(a)(5). Berry
contends that the district court abused its discretion in allowing
Sparks to file a notice of appeal on the ground that Sparks had not
demonstrated excusable neglect.
We review the district court's decision to extend the time to
file a notice of appeal for abuse of discretion. See Midwest
Employers Casualty Co. v. Williams, 161 F.3d 877, 879 (5th Cir.
1998) (reviewing magistrate judge's decision to extend time to file
an appeal).
This Court has adopted the Supreme Court's standard of
“excusable neglect” announced in Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395-97 (1993).
See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 469
(5th Cir. 1998). In Pioneer, the Court concluded that the
determination of excusable conduct is equitable and takes into
account factors such as 1) danger of prejudice; 2) length of
delay; 3) reason for delay; and 4) evidence of good faith. See
Pioneer, 507 U.S. at 395.
The district court reviewed Sparks' Motion for Leave and
found that the extenuating circumstances were sufficient to meet
the standard of excusable neglect under Pioneer. As an equitable
consideration, we hold that the district court did not abuse its
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discretion in granting Sparks' Motion for Leave to File Notice of
Appeal. There was no danger of prejudice and the length of delay
was minimal. Further, the affidavit of Sparks' counsel claimed a
busy trial practice, an ill child, and a miscalculation of the days
all led to the delay. Finally, Sparks' counsel demonstrated good
faith by contacting the district court and Berry's counsel on the
morning of September 4 to notify them of the missed deadline.
B. State Law Claims
Sparks raised two state law claims against Berry in his
complaint: breach of employment contract and intentional
infliction of emotional distress. Berry contends that Sparks
waived his state law claims because he failed to address them in
his initial brief on appeal. Sparks, however, contends that his
state law claims flow from the common nucleus of facts underlying
his age discrimination claim. Citing United Paperworkers Intern.
AFL-CIO, CLC v. Champion Intern. Corp., 908 F.2d 1252, 1255 (5th
Cir. 1990), Sparks suggests that this Court should logically deduce
his state law claims from his age discrimination claim.
This Court has held that “[a]n appellant abandons all issues
not raised and argued in its initial brief on appeal.” Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Neither Sparks'
initial brief nor his reply brief addresses any law or facts
relating to intentional infliction of emotional distress or breach
of employment contract. We hold that Sparks waived his state law
claims because he did not raise these issues on appeal in his
initial brief. See id.
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C. Age Discrimination Claim
Sparks contends that the district court erred when it granted
summary judgment in favor of Berry on his age discrimination claim
under the ADEA. The district court found that Sparks did not
establish a prima facie case of age discrimination.
This Court reviews a district court's grant of summary
judgment de novo. See Brown v. CSC Logic, Inc., 82 F.3d 651, 653
(5th Cir. 1997). Summary judgment is proper if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to
summary judgment as a matter of law." Fed. R. Civ. P. 56(c).
In order for Sparks to establish a prima facie case of age
discrimination, he must show: (1) he was discharged; (2) he was
qualified for his position; (3) he was within the protected class;
and (4) he was replaced by someone outside the protected class,
someone younger, or was otherwise discharged because of his age.
See Brown, 82 F.3d at 654.
Sparks satisfies the first three elements of his prima facie
case. Berry terminated Sparks. Sparks was qualified for his
position and Sparks was fifty-seven. Sparks has not asserted
that he was replaced by someone outside the protected class or by
someone younger. Thus, Sparks must establish that he was
discharged because of his age.
Sparks offers three separate grounds for showing that he was
discharged on the basis of his age. First, Sparks contends he was
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hired to cover up Berry's previous age discrimination against
another employee. Second, Sparks argues that he was treated less
favorably than a similarly situated, younger employee. Finally,
Sparks offers an assortment of other evidence to support his
contention that Berry discharged Sparks because of his age.
1. Discriminatory Hiring
At the time of his hiring, Sparks was within the age group
protected by the ADEA. Where a company hires an employee who is
within the protected class and then discharges that employee, there
is an inference that age discrimination was not the motivation.
See Brown, 82 F.3d at 658. “Claims that employer animus exists in
termination but not in hiring seem irrational.” Id. (citing Proud
v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991)).
Sparks asserts that Berry hired him for the purpose of
testifying in a pending lawsuit against Berry. Specifically,
Sparks states that Berry intended to use him to show that the
company hires older people to combat an age discrimination suit by
a former employee, Helen Cantrell (“Cantrell”). Cantrell filed an
EEOC charge of discrimination in August, 1992 and the lawsuit was
served on Berry in June, 1993. The Cantrell lawsuit settled in
October, 1995.
Sparks' facts do not establish that Berry hired him for a
discriminatory purpose. Sparks, experienced in advertising sales,
was qualified for the position at Berry and was successful in this
position. The Cantrell lawsuit was not served on Berry until a few
months after Berry hired Sparks. In addition, Sparks continued to
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work at Berry for more than a year after the Cantrell lawsuit
settled.
2. Similarly-Situated Employee
Sparks contends that Berry discharged him on the basis of his
age because he was treated less favorably than a similarly-
situated, younger employee. Sparks argues that Berry terminated
him but only suspended Ted Watson (“Watson”), age 40, under similar
circumstances.
This Court has held that the plaintiff "must show that [the
employer] gave preferential treatment to a younger employee under
'nearly identical' circumstances." Hamilton v. Grocers Supply Co.,
Inc., 986 F.2d 97, 99 (5th Cir. 1993) (citing Little v. Republic
Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991)). S p a r k s
contends that Berry gave preferential treatment to Watson and that
they are similarly situated. Sparks points to the fact that Berry
terminated Sparks for falsifying information on two accounts but
only suspended Watson for discrepancies on signatures on five
accounts.
The extent of Sparks and Watson's similarities, however, end
with their account falsifications. Watson received positive
customer recontacts, had low complaints and adjustments, and had no
prior history of improper handling of accounts. On the other hand,
Berry offered evidence that Sparks had received counseling for his
behavior at work, a reprimand for failing to follow company
procedures, a one-day suspension for improper handling of an
account, and a number of complaints from his accounts. Washington
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explained in her deposition testimony that she considered Sparks'
history of customer complaints when she was considering Sparks'
termination. Finally, in her memorandum, Moore referenced Sparks'
history of excessive customer complaints.
The personnel records demonstrate that Berry considered
Sparks' level of customer complaints in its decision to terminate
him. Watson's lack of customer complaints was a factor in Berry's
decision not to terminate him. Because of the difference in the
level of customer complaints, we agree with the district court that
Sparks and Watson's circumstances were not nearly identical, and
for this reason, Berry's differential treatment of Sparks does not
establish age discrimination. See Davin v. Delta Airlines, 678 F.2d
567, 571 (5th Cir. 1982) (plaintiff failed to establish a prima
facie case of gender discrimination based on disparate treatment of
terminated female employee and retained male employee where
employer considered female plaintiff's history of causing fear in
other employees at ticket counter).
3. Other Proffered Evidence of Age Discrimination.
Sparks offers a number of alternative theories to establish
that Berry discriminated against him because of his age. First,
Sparks contends that a memorandum drafted by Loungo in 1989
demonstrates an atmosphere of age discrimination. The 1989
memorandum categorized Berry into three different categories of
employees: (1) long-tenured representatives approaching retirement;
(2) over 40 tenured sales reps; and (3) under 40 less-tenured reps.
The memo expressed concern over the age, performance, and ability
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to terminate representatives in group 2.
In Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir. 1999), this
Court affirmed a jury's finding that Berry discriminated against a
former employee because of her age. In part, the Smith court
relied on the Loungo memorandum as evidence to support the finding
of age discrimination. The relevance of the memorandum here,
however, is too tenuous to support a finding of age discrimination.
The memorandum was not related to the employment decision at issue
in this case.
Second, Sparks contends that two age-related comments, along
with other evidence of age discrimination, created an inference of
a discriminatory atmosphere at Berry. Sparks, relying on Atkinson
v. Denton Publishing Co., 84 F.3d 144 (5th Cir. 1996), argues that
comments such as “Pops” and “an older, gray-haired gentleman,”
created a triable issue of age discrimination for a jury.
Sparks, however, fails to realize that the plaintiff in
Atkinson had established a prima facie case of age discrimination.
In Atkinson, the employee had demonstrated a prima facie case of
age discrimination, the employer rebutted the presumption, then the
district court granted summary judgment. See id. at 149-50. The
Atkinson court reversed the district court's grant of summary
judgment for the employer, holding that the employee's evidence had
created a fact issue on the issue of whether age was a factor in
his termination. Id. at 150.
In this case, the district court granted summary judgment when
Sparks did not meet his burden of establishing a prima facie case
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of age discrimination. Sparks does not and cannot contend that the
vague age-related comments are sufficient to prove that Berry
terminated Sparks because of his age. See EEOC v. Texas
Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (an age
based comment must be direct and unambiguous); Waggoneer v. City
of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (“old fart” comment
does not establish age animus).
Finally, Sparks contends that the finding of the Mississippi
Employment Security Commission (“MESC”) infers that Berry dismissed
Sparks because of his age. When Sparks was terminated, he filed
for unemployment benefits with the MESC. Berry contested the
unemployment benefits, claiming that Berry was discharged for
mishandling accounts. The MESC awarded benefits to Sparks, finding
that Berry did not show that he was discharged for the misconduct
related to his job. The MESC finding, however, does not provide
affirmative evidence that Berry discriminated on the basis of his
age. Therefore, Sparks still has not established a prima facie
claim of age discrimination.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district
court's grant of summary judgment in favor of the defendant, L.M.
Berry & Company.
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