UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60451
THERESA ANN GATES,
Plaintiff - Appellant,
VERSUS
FORREST GENERAL HOSPITAL; VICKI FERNICOLA PEVSNER,
Individually and Officially
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
(97-CV-201)
September 24, 1999
Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
Theresa Gates appeals the district court’s grant of summary
judgment for the defendants dismissing with prejudice her claims
under the Age Discrimination Employment Act (ADEA) and under 42
U.S.C. § 1983 for deprivations of First Amendment (free speech) and
Fourteenth Amendment (liberty and property interests) protections.
*
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this opinion should not be published and is not precedent except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
The claims arise from alleged adverse employment actions taken by
the defendant employer Forrest General Hospital and the defendant
supervisor Vicki Pevsner.
Having fully reviewed the briefs and the record and having
heard oral argument by the parties, we affirm for substantially the
reasons expressed by the district court in its memorandum opinion
and order dated May 11, 1998, except for several elements with
which we disagree that do not amount to reversible error.
With respect to the ADEA claims, in order to establish a prima
facie case of age discrimination, Gates must demonstrate that she
(1) was discharged; (2) was qualified for the position; (3) was
within the protected age class -- over 40 -- at the time of
discharge; and (4) was replaced by a younger person, or a person
outside the protected age class, or otherwise was discharged
because of her age. See Stults v. Conoco, Inc., 76 F.3d 651, 656
n.2 (5th Cir. 1996).
First, appellant’s age discrimination claim that she was
discharged in May 1996 from her position as Education Coordinator
is without merit, as the district court properly found. Because
only a small part of her duties as Education Coordinator were
assigned to another employee already performing other duties as
Therapy Coordinator, appellant cannot be considered as having been
replaced by another employee. See Barnes v. GenCorp Inc., 896 F.2d
1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990)(a person
is not replaced when another employee is assigned to perform the
2
plaintiff’s duties in addition to other duties).
Second, regarding the ADEA claim premised upon appellant’s
alleged discharge as full-time Outreach Coordinator, we differ with
the trial court and find that appellant, through her own deposition
testimony regarding her acceptance of an offer of that position in
May 1996 and her expressed willingness to work year around in that
position, has produced sufficient competent summary judgment
evidence to establish a prima facie case, albeit controverted by
deposition testimony of the defendants, of age discrimination
relative to her discharge from that position in September 1996: (1)
Gates was discharged; (2) she was qualified for the position; (3)
she was within the protected class at the time of discharge (over
40 years of age); and (4) she was replaced (i) by someone outside
the protected class and (ii) by someone who was younger. See
Stults, 76 F.3d at 656 n.2. However, we agree with the district
court that Gates has failed to produce sufficient evidence from
which a reasonable jury could conclude that appellees’ proffered
legitimate and nondiscriminatory reasons for the discharge (i.e.
that the replacement worker was more qualified by experience and by
education, would cost less money to employ, and was happy to work
summers) were mere pretext. In the record presented for summary
judgment purposes, Gates testified to a single statement made to
her by Pevsner to the effect that “you would make too much money if
I let you work twelve months.” Gates also testified to her own
conclusion that Pevsner “had hired someone younger at a lower
3
salary to replace me.”2 This evidence was not sufficient within
the context of this case to create a reasonable inference that age
was a determinative reason for the employment decision.3 Id. at
657 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th
Cir. 1996) (en banc)). For example, seven of nine Outreach
Coordinators employed by Forrest General at the time of the
employment action were within the protected class; Gates had been
offered other full-time and part-time employment opportunities;
and, Gates continued to work full-time through November 1996 and
part-time through June 1997. Moreover, employer decisions
predicated upon salary considerations are not indicative of age
discrimination. Armedariz v. Pinkerton Tobacco Co., 58 F.3d 144,
152 (5th Cir. 1995). Gates has failed to produce evidence from
which it may be reasonably inferred that the defendants’ proffered
reasons were mere pretext.
Regarding appellant’s First Amendment claim, we disagree with
the district court that Gates’s criticism of hospital co-employees
for patient abuse and sexual misbehavior was necessarily
2
Gates seeks to rely on her testimony quoted in her “record
excerpts” to show that Pevsner said she could “hire a younger
person for less money.” Gates’s testimony to this effect, however,
is not part of the summary judgment record.
3
This was the only evidence of age discrimination attributed
by Gates to Pevsner. Because age-related remarks are sufficient
evidence of age discrimination only if uttered by the individual
with authority over the employment decision at issue, See Brown v.
CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996), age-related
statements by co-employees other than Pevsner, the supervising
authority with control over personnel decisions such as hiring,
firing, transfers, etc., are not relevant.
4
unprotected because it had not been made publicly or to the news
media. However, even if it were assumed that her expressions were
protected, Gates must also produce reasonably probative evidence
that her speech caused the retaliatory employment decision about
which she complains. See Jones v. Collins, 132 F.3d 1048, 1053
(5th Cir. 1998). Gates failed in this respect. Given the temporal
remoteness of the “speech” (1994) from the “constructive discharge”
(June 1997), as well as the intervening superlative personnel
evaluations and offers of employment in various capacities, a
reasonable trier of fact could not find a causal link between the
two events. The same is true even if the May 1996 alleged
discharge as Education Coordinator or the September 1996 alleged
discharge as Outreach Coordinator are considered as the end points
for causation analysis purposes. The expression at issue was too
remote from the employment decisions complained of to support a
reasonable inference of causation.
For the foregoing reasons, the district court grant of summary
judgment in favor of appellees is AFFIRMED.
5