Case: 20-10322 Document: 00515663787 Page: 1 Date Filed: 12/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 7, 2020
No. 20-10322
Lyle W. Cayce
Clerk
Rosemary Salazar,
Plaintiff—Appellant,
versus
Lubbock County Hospital District, doing business as
University Medical Center,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CV-232
Before Clement, Ho, and Duncan, Circuit Judges.
Edith Brown Clement:
The question presented is whether Rosemary Salazar sufficiently
demonstrated that the reasons given by Lubbock County Hospital District,
d/b/a University Medical Center (“UMC”), for her termination were
merely pretexts for discrimination. The district court found that Salazar
failed to adduce enough evidence to create a genuine dispute. We agree and
affirm.
Case: 20-10322 Document: 00515663787 Page: 2 Date Filed: 12/07/2020
No. 20-10322
I.
Salazar was employed by UMC for twenty-seven years. She began as
a respiratory therapist in 1990 and transitioned to adult respiratory educator
in 2004. Although Salazar was the assistant director of the department from
2012 to 2014, she returned to her position as an educator in 2015 and
remained there until her termination in 2017—spending at least ten years as
an educator.
UMC contends that Salazar’s performance began to decline in 2016.
Its former director and assistant director—Robert Lopez and Anthony
Trantham, respectively—assert that they observed her struggle to
communicate and claim that her disorganization caused scheduling
confusion and frustration for many members of the staff. UMC alleges that,
as time passed, it made several attempts to convey to Salazar “the
importance [of] chang[ing] her current practices.” By contrast, Salazar
claims that she was never counseled or warned in any way that she was
performing poorly. Instead, she asserts that she was the recipient of several
merit raises, which were indicative of her satisfactory performance.
On March 13, 2017, UMC terminated Salazar. At the time she was
discharged, Salazar was 57 years old. Salazar brought this lawsuit, alleging age
discrimination under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et. seq. Her principal claim was that she and
several other elderly employees were fired and replaced by younger
respiratory therapists, whom UMC paid at a lower rate.
UMC filed a motion for summary judgment. Because Salazar and
UMC agreed that Salazar demonstrated a prima facie case of age
discrimination and that UMC articulated a legitimate, non-discriminatory
basis for her termination, the district court focused only on whether Salazar
adduced sufficient evidence to create a genuine dispute over the veracity of
2
Case: 20-10322 Document: 00515663787 Page: 3 Date Filed: 12/07/2020
No. 20-10322
UMC’s proffered reasons for her discharge.1 It found that she did not and
awarded judgment in favor of UMC; Salazar appealed.
II.
Salazar argues on appeal that the district court erred in granting
summary judgment to UMC because there existed a genuine dispute as to
whether UMC’s reasons for her termination were pretexts for
discrimination. “We review a grant of summary judgment de novo, applying
the same standard as the district court,” and take all inferences in the light
most favorable to Salazar. Machinchick v. PB Power, Inc., 398 F.3d 345, 349
(5th Cir. 2005).
“Under the ADEA, it is ‘unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against any
individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s age.’” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting
§ 623(a)(1)). When a plaintiff brings a cause of action under the ADEA, the
plaintiff has the burden of showing that her age was the but-for cause of her
employer’s adverse action, Jackson v. Cal-Western Packaging Corp., 602 F.3d
374, 377 (5th Cir. 2010), and she may satisfy this burden with circumstantial
evidence, Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
2002).
1
Neither party has contended on appeal that the McDonnell Douglas framework is
inapplicable to ADEA claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(delineating a burden-shifting test). Accordingly, as the Supreme Court has not spoken on
this issue either, we will follow circuit precedent applying the framework to age
discrimination cases. See, e.g., Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378
(5th Cir. 2010); Baker v. Am. Airlines, 430 F.3d 750, 753 (5th Cir. 2005); Patrick v. Ridge,
394 F.3d 311, 315 (5th Cir. 2004).
3
Case: 20-10322 Document: 00515663787 Page: 4 Date Filed: 12/07/2020
No. 20-10322
When she presents circumstantial evidence, the McDonnell Douglas
framework applies. Machinchick, 398 F.3d at 350. The McDonnell Douglas
framework first requires a plaintiff to establish a prima facie case of age
discrimination. Jackson, 602 F.3d at 378. The burden then shifts to the
employer to articulate a legitimate, non-discriminatory reason for the
plaintiff’s discharge. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254
(1981). As stated, the parties have agreed that these two steps have been
satisfied.
Thus, to carry her burden, Salazar must prove by a preponderance of
the evidence that the legitimate reasons offered by UMC were not its true
reasons, but were pretexts for discrimination. Reeves, 530 F.3d at 143 (quoting
Burdine, 450 U.S. at 253). To do so, she must “show pretext ‘either through
evidence of disparate treatment or by showing that [UMC’s] proffered
explanation is false or unworthy of credence.’” Jackson, 602 F.3d at 378–79
(quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). The evidence
establishing Salazar’s prima facie case, and inferences properly drawn
therefrom, may be considered in determining whether Salazar carried her
burden. Burdine, 450 U.S. at 255 n.10.
UMC’s articulated reasons for Salazar’s termination were her poor
performance and demonstrated lack of effort to change her behavior.
Therefore, to prevail at this stage, Salazar must show that reasonable minds
could disagree that these were, indeed, the reasons for her discharge—either
by evidence of disparate treatment or inaccuracy of the reasons given—and
about whether her age was the actual reason. See Saint Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993) (“[A] reason cannot be proved to be
‘a pretext for discrimination’ unless it is shown both that the reason was
false, and that discrimination was the real reason.”).
4
Case: 20-10322 Document: 00515663787 Page: 5 Date Filed: 12/07/2020
No. 20-10322
In support of her contention that UMC’s proffered reasons for her
discharge were pretextual, Salazar attempts to show UMC’s reasons were
false. She specifically points to (1) her own statements that she performed
properly and well; (2) her receipt of merit raises; (3) her claims that UMC
also fired several other elderly employees who earned more than the younger
employees; and (4) evidence that UMC did not follow its typical policy or
disciplinary process in terminating her employment.
As an initial matter, Salazar’s self-serving statements that she was
performing adequately are insufficient to create a triable issue of fact as to
whether UMC fired her because of her age. Cf. Jackson, 602 F.3d at
379; United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (affirming
summary judgment for the plaintiff when defendant’s only evidence in
opposition was his own “self-serving allegations”); BMG Music v.
Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (explaining that a “conclusory, self-
serving statement” by defendant was insufficient to create a triable issue of
fact). Merely disputing UMC’s assessment of her performance does not
create an issue of fact. See Sandstad, 309 F.3d at 899. Therefore, these
statements need not be considered.
Salazar’s contention that she received merit raises similarly fails to
give rise to an inference of pretext. Evidence of a merit raise could call into
question the sincerity of an employer’s claim of an employee’s poor
performance, see Andrew J. Ruzicho, Louis A. Jacobs, & Andrew J. Ruzicho
II, Evaluations—Controlling Law, 1 Employment Practices Manual
§ 5:18 (2020) (explaining that too short a period between a good and bad
evaluation may impeach the credibility of the latter), but Salazar’s assertion
does not do so.
Although she claims she “received numerous merit raises for [her] job
performance,” she refers specifically to only one instance: a raise she
5
Case: 20-10322 Document: 00515663787 Page: 6 Date Filed: 12/07/2020
No. 20-10322
received in 2016 based upon her job performance in 2015. UMC contends
that Salazar’s performance began to decline in 2016. These positions are not
mutually exclusive. Furthermore, “prior good evaluations alone cannot
establish that later unsatisfactory evaluations are pretextual.” Billet v.
CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991) (citing Turner v. Schering-
Plough Corp., 901 F.2d 335, 343–44 (3d Cir. 1990)), overruled on other grounds
by Hicks, 509 U.S. 502; cf. Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d
1223, 1229 n.1 (11th Cir. 2002) (“Winning an award for one quarter of
performance, even if he did perform admirably during that quarter, does not
erase all previous negative evaluations of his work.”).
Salazar further fails to note that this evaluation of her performance—
the same one that included the merit raise—also details several significant
shortcomings throughout the year. It unequivocally explains that Salazar
needed to make certain adjustments to her behavior and provides specific
examples of her impermissible conduct. Thus, Salazar’s claims of merit
raises do not controvert UMC’s allegations of her poor performance.
Salazar next alleges that she, and others, were terminated so that
UMC could enlist younger respiratory therapists to complete the same work
more cheaply. Yet she fails to offer any competent rebuttal evidence.
Salazar’s own statements are the only evidence on this point:
In addition to myself, at least three other long[-]time
employees of the respiratory therapy department, each of
whom was over sixty years of age, were fired by UMC. These
employees were Howard Wright, Ricky Jones and Mary Watts.
. . . These three employees, and myself, were all fired by Lopez,
the director of the respiratory therapy department, in 2017.
Salazar directs us to nothing else in the record in support of this assertion.
She does not attach declarations or affidavits by any of these three
individuals. She does not provide us with an interrogatory served upon UMC
6
Case: 20-10322 Document: 00515663787 Page: 7 Date Filed: 12/07/2020
No. 20-10322
corroborating any of this information. Without more, this allegation is
insufficient to create a genuine dispute of fact as to whether Salazar—and
company—were fired on the basis of age. See Ross v. Univ. of Texas at San
Antonio, 139 F.3d 521, 526 (5th Cir. 1998) (stating that an employee’s failure
to “refer the Court to any particularized evidence to support his subjective
view of the facts” undermined his ability to rebut his employer’s legitimate,
non-discriminatory reason for his termination); see also Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (stating that generalized
statements were insufficient to support an inference of discrimination).
Finally, we turn to Salazar’s claim that UMC did not follow its own
progressive discipline plan. Termination of an employee that does not
proceed pursuant to an employer’s progressive discipline policy may give rise
to an inference of pretext. Machinchick, 398 F.3d at 355. As the district court
acknowledged, this is Salazar’s “strongest argument” in support of her
ADEA claim; however, it, too, comes up short.
She asserts that the facts of her case align with those in Goudeau v.
National Oilwell Varco, L.P. See 793 F.3d 470, 477 (5th Cir. 2015) (“[W]hen
an employer opts to have a disciplinary system that involves warnings, failure
to follow that system may give rise to inferences of pretext.” (emphasis
added)). There, however, Goudeau claimed that he received a flurry of
written warnings on the day he was fired, even though they related to events
that occurred prior to that meeting. Id. at 476–77. Additionally, the employer
not only made ageist remarks but also claimed, after hearing their ages, that
he intended to fire two employees. Id. at 478. It was on the basis of these
assertions—“the doubts that Goudeau . . . raised about the warnings,
combined with the ageist comments that are potentially corroborated by
[Goudeau’s firing]”—that the court determined that a jury could conclude
that Goudeau’s age was the reason for his termination. Id. at 477.
7
Case: 20-10322 Document: 00515663787 Page: 8 Date Filed: 12/07/2020
No. 20-10322
The circumstances of Salazar’s termination are plainly different. She
makes no suggestion that UMC submitted tardy, post-hoc work reviews. Nor
does she claim that UMC attempted to paper her file. Salazar has also not
adduced evidence tending to show Lopez or Trantham made ageist remarks
in her workplace. Instead, she merely alleges that Lopez and Trantham are
lying but does not provide any evidence to support her allegation.
In contrast, UMC submitted orientee and preceptor evaluations. It
attached employee satisfaction surveys. Most of all, UMC included Salazar’s
performance evaluation for 2015, which was provided to her in March 2016
and clearly details areas of concern over her past performance as well as
directives for improvement in the future.
Furthermore, although UMC did not follow its progressive discipline
policy, it didn’t have to. UMC’s policy specifically provides for the use of
discretion. Compare ECF TXND 5:18-CV-232, 20, p.12 (“[The levels of
discipline] are recommendations. Management reserves the right to impose
the level of discipline deemed appropriate for specific sets of
circumstances.”), and Taylor v. Peerless Indus., Inc., 322 F. App’x 355, 367
(5th Cir. 2009) (per curiam) (involving a policy that emphasized that
“disciplinary measures used in a particular case will be highly dependent on
the specific circumstances and . . . managers may employ some, all, or none
of the steps” (cleaned up)), with Machinchick, 398 F.3d at 355 n.29 (involving
an internal company policy that specifically stated it should be “followed in
most circumstances”). UMC’s digression from the terms of its policy is
therefore of little value to our analysis.
Despite viewing the evidence in the light most favorable to Salazar as
we must, our holding is inescapable. UMC proffered a legitimate, non-
8
Case: 20-10322 Document: 00515663787 Page: 9 Date Filed: 12/07/2020
No. 20-10322
discriminatory reason for Salazar’s discharge: her poor performance.2
Salazar failed to present sufficient evidence to create doubt as to whether this
reason was a mere pretext for discrimination.
AFFIRMED.
2
Salazar must demonstrate that each reason was a pretext for discrimination. See
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (“The plaintiff must put
forward evidence rebutting each of the non[-]discriminatory reasons the employer
articulates.”). Because she fails to create a genuine dispute as to whether UMC’s claim
that it fired her based upon her poor performance was pretextual, we need not address
UMC’s second proffered reason for her discharge.
9
Case: 20-10322 Document: 00515663787 Page: 10 Date Filed: 12/07/2020
No. 20-10322
James C. Ho, Circuit Judge, concurring:
I concur. I write separately simply to clarify one point. Summary
judgment is appropriate here, but not because Salazar presented “self-
serving” statements regarding her performance. Summary judgment is
appropriate because those statements are conclusory.
There is nothing inherently wrong with self-serving statements. See
Dall./Fort Worth Int’l Airport Bd. v. INet Airport Sys., Inc., 819 F.3d 245, 253
n.14 (5th Cir. 2016) (“Evidence proffered by one side to support or defeat a
motion for summary judgment will inevitably appear ‘self-serving.’”). We
fully expect litigants to present statements that serve their interests. Indeed,
our adversarial legal system is premised on that notion. The mere fact that a
statement is self-serving does not reduce its value or make it unworthy of
consideration. And in the summary judgment context, “[s]imply being ‘self-
serving’ . . . does not prevent a party’s assertions from creating a dispute of
fact.” Bargher v. White, 928 F.3d 439, 445 (5th Cir. 2019). See also Lester v.
Wells Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020) (“[M]erely
claiming that the evidence is self-serving does not mean we cannot consider
it or that it is insufficient.”) (citation omitted).
The problem arises when a statement is not just self-serving, but
conclusory. “[D]eclarations of parties that set forth only conclusory and
unsupported assertions are sometimes described disparagingly as ‘self-
serving’ . . . as if [its] ‘self-serving’ nature . . . renders it automatically
insufficient.” Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 441 n.7 (5th
Cir. 2013) (citation omitted). But it is the conclusory nature of a statement
that makes it inadequate. Whereas a self-serving statement (as the adjective
suggests) serves the party’s interests, a conclusory statement recites the
bottom-line legal standard but fails to present any factual detail or specifics
indicating what evidence will actually satisfy the requisite legal standard. See
10
Case: 20-10322 Document: 00515663787 Page: 11 Date Filed: 12/07/2020
No. 20-10322
Conclusory, Black’s Law Dictionary (11th ed. 2019) (“[e]xpressing a
factual inference without stating the underlying facts on which the inference
is based”). A party cannot rely on mere conclusory statements to create an
issue of fact and thereby defeat summary judgment. See, e.g., Lester, 805 F.
App’x at 291 (“Of course, when an affidavit is conclusory, it cannot preclude
summary judgment—whether it is self-serving or not.”) (citing DIRECTV,
Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005) (“attempt[ing] to create a
fact issue . . . by relying on a conclusory and self-serving [statement] is on
unsteady ground”); BMG Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996)
(explaining that a “conclusory, self-serving statement” by defendant was
insufficient to create a triable issue of fact)).
Because Salazar’s statements with respect to her job performance
were conclusory, summary judgment was proper. I concur.
11