IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60677
Summary Calendar
_____________________
LOYD E CRIDDLE
Plaintiff-Appellant
v.
PIGGLY WIGGLY OF AMORY, INC
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
Docket No. 1:98-CV-271-JAD
_________________________________________________________________
March 23, 2000
Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Loyd Criddle (“Criddle”) appeals the
district court’s entry of summary judgment in favor of Defendant-
Appellee Piggly Wiggly of Amory, Inc. (“Piggly Wiggly”). We
AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I. BACKGROUND
Criddle is a former assistant-manager at a Piggly Wiggly
supermarket in New Hope, Mississippi. Criddle was fired from
this position on January 30, 1998. At the time of his
termination, Criddle was fifty-seven years old. Criddle claims
that he was fired because of his age. Piggly Wiggly contends
that Criddle was fired because he was causing morale problems
among store employees by undermining the store manager’s
authority, and by being overly critical of some store employees
while being “overly-friendly” with certain female employees.
After he was fired, Criddle filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”). The EEOC
investigated, but declined to prosecute Criddle’s claim, and it
issued him a right-to-sue letter. Criddle subsequently filed
suit in federal district court, alleging that his termination
violated the Age Discrimination in Employment Act (“ADEA”). See
29 U.S.C §§ 621-634. Piggly Wiggly subsequently moved for
summary judgment. It argued that Criddle failed to make out a
prima facie case of age discrimination and that, even if he could
make out a prima facie case, he could not show that Piggly
Wiggly’s proffered reasons for firing Criddle were pretext for
unlawful discrimination.
In considering Piggly Wiggly’s motion, the district court
assumed that Criddle had made out a prima facie case of
discrimination. However, the lower court agreed that Piggly
Wiggly had presented evidence of legitimate, nondiscriminatory
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reasons for firing Criddle, and that Criddle had failed to
present evidence that these reasons were mere pretext for
unlawful discrimination. Therefore, the district court entered
summary judgment in favor of Piggly Wiggly. Criddle timely
appeals.
II. DISCUSSION
We review a grant of summary judgment de novo, applying the
same standards as the court below. See Matagorda County v. Law,
19 F.3d 215, 217 (5th Cir. 1994). Summary judgment is proper
when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A
dispute regarding a material fact is “genuine” if the evidence is
such that a reasonable jury could find in favor of the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The ADEA makes it unlawful for an employer to discharge “or
otherwise discriminate” against an individual on the basis of
age. See 29 U.S.C. § 623(a)(1); Brown v. CSC Logic, Inc., 82
F.3d 651, 654 (5th Cir. 1996). In analyzing ADEA claims, we have
adopted the evidentiary procedure first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bodenheimer v.
PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Under this
standard, an ADEA plaintiff must first make out a prima facie
case of discrimination by demonstrating “that: (1) he was
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discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he
was either i) replaced by someone outside the protected class,
ii) replaced by someone younger, or iii) otherwise discharged
because of his age.” Id.; see also Price v. Marathon Cheese
Corp., 119 F.3d 330, 336-37 (5th Cir. 1997); Bienkowski v.
American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir. 1988).
If the plaintiff makes out a prima facie case, a presumption
of discrimination arises and the burden shifts to the employer to
rebut this presumption by setting forth legitimate,
nondiscriminatory reasons for discharging the employee. See
Bodenheimer, 5 F.3d at 957. If the employer meets this burden of
production, the burden shifts back to the employee to prove that
the employer’s proffered reasons are mere pretext for unlawful
age discrimination. See id.; St Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).
The district court assumed that Criddle had made out a prima
facie case of discrimination. On appeal, Piggly Wiggly attacks
this presumption and argues that Criddle failed to make out a
prima facie case. Because we find that Piggly Wiggly has
presented overwhelming evidence that it fired Criddle for
legitimate, nondiscriminatory reasons, and that Criddle has
failed to rebut this presumption, we decline to address Piggly
Wiggly’s challenges to Criddle’s prima facie case. We will
assume, without deciding, that Criddle has made out a prima facie
case of age discrimination.
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Piggly Wiggly may produce proof of legitimate,
nondiscriminatory reasons for terminating Criddle by setting
forth evidence that, “if believed by the trier of fact would
support a finding that unlawful discrimination was not the cause
of the employment action.” Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 993 (5th Cir. 1999) (en banc). Piggly Wiggly has
produced affidavits from Larry Allgood (the meat department
manager at the New Hope Piggly Wiggly), Joe McGonagill (the store
manager of the Piggly Wiggly supermarket in Amory), and Bobby
McGonagill (the Vice President of Piggly Wiggly of Amory, Inc.).
Each of these affidavits sets forth legitimate, nondiscriminatory
reasons for terminating Criddle. The affidavits indicate that
Criddle engaged in inappropriate behavior with female employees,
was damaging the morale of other employees, and was undermining
the authority of his superiors.
Because Piggly Wiggly has set forth legitimate reasons for
terminating Criddle, the burden shifts back to Criddle to show
that these reasons are mere pretext for unlawful age
discrimination. See Price 119 F.3d at 337. To withstand summary
judgment, Criddle must point to a “genuine issue of material fact
concerning pretext.” Moore v. Eli Lilly & Co., 990 F.2d 812, 815
(5th Cir. 1993). This evidence must “consist of more than a mere
refutation of the employer’s legitimate nondiscriminatory
reason[s]”; it must offer “some proof that age motivated the
employer’s action.” Id. at 815-816 (citations omitted).
Criddle offers no evidence to indicate that Piggly Wiggly’s
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proffered reasons for terminating him are pretext for unlawful
age discrimination. In his deposition, Criddle merely stated
that he believed age was a motivating factor in his termination
because Piggly Wiggly refused to give him “another reason.”
Criddle also points out that Piggly Wiggly did not oppose his
application for unemployment benefits. By Criddle’s reasoning,
if he was not terminated because of his age, but because of his
conduct, Piggly Wiggly would have opposed his application for
unemployment benefits. This argument is unpersuasive.
Mississippi bars a worker from receiving unemployment
benefits if his employer demonstrates, through clear and
convincing evidence, that the employee was fired for misconduct.
Miss. Code Ann. § 71-5-513(A)(1)(b) (1999). For the purposes of
unemployment benefits, the Mississippi Supreme Court defines
“misconduct” as “conduct that reasonable and fair-minded external
observers would consider a wanton disregard of the employer’s
legitimate interests.” Mississippi Employment Sec. Comm’n v.
Phillips, 562 So.2d 115, 118 (Miss. 1990). Given that clear and
convincing evidence of “wanton” conduct is required to find that
an employee was terminated for misconduct, it follows that not
every termination for “cause” is necessarily for “misconduct”.
See, e.g., Mississippi Employment Sec. Comm’n v. McLane-Southern,
Inc., 583 So.2d 626, 628 (Miss. 1991) (finding that an “isolated”
fight in the workplace was not “misconduct” for the purposes of
determining eligibility for unemployment benefits). Piggly
Wiggly’s failure to challenge Criddle’s application for
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unemployment benefits, by itself, does not indicate that the
legitimate reasons proffered for terminating Criddle were pretext
for discrimination.
Neither Criddle’s subjective belief that age played a factor
in his termination nor Piggly Wiggly’s failure to object to
Criddle’s application for unemployment benefits constitutes
evidence that would lead a jury to conclude that Piggly Wiggly’s
proffered reasons were pretext for unlawful age discrimination.
See Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir.
1997) (finding that an employee’s subjective belief that he was
fired because of age was insufficient evidence to overcome the
employer’s proffered reasons for firing the employee).
In sum, we find that Piggly Wiggly has come forward with
evidence indicating that it fired Criddle because he was causing
substantial morale problems within the store. Criddle, however,
has presented absolutely no evidence indicating that Piggly
Wiggly’s reasons for firing him are mere pretext for unlawful age
discrimination. Therefore, the district court did not err in
granting Piggly Wiggly’s motion for summary judgment.
III. CONCLUSION
For the above stated reasons, we AFFIRM.
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