United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT
January 11, 2007
Charles R. Fulbruge III
No. 06-60494 Clerk
Summary Calendar
DANNY HOUK
Plaintiff - Appellant
v.
PEOPLOUNGERS INC
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi, Aberdeen
USDC No. 1:04-CV-333
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Danny Houk appeals the district court’s
grant of summary judgment to defendant-appellee Peoploungers,
Inc. (“Peoploungers”), arguing that genuine issues of material
fact remain with regard to Houk’s claim of age discrimination
under the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. §§ 621 et seq.1 Houk was fired by Peoploungers for
*
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this opinion should not be published and is not precedent except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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Houk initially appealed the district court’s grant of
summary judgment to Peoploungers on his state law claim for
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leaving work early one day without permission, but contends that
he did have permission from a supervisor and that this factual
dispute--along with his replacement by a worker nine years
younger than him--forestalls summary judgment.
We review a grant of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor. See
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.
2000). “Summary judgment is proper when the evidence reflects no
genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)).
“A genuine issue of material fact exists ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving
party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
Under the burden-shifting framework for discrimination
claims established by McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973), Houk has the initial burden of establishing a
prima facie case of discrimination by showing that “(1) he was
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
defamation, but Houk conceded this claim in his reply brief.
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because of his age.” Bodenheimer v. PPG Indus., Inc., 5 F.3d
955, 957 (5th Cir. 1993). If Houk meets these requirements, “a
presumption of discrimination arises which the defendant must
then rebut by articulating a legitimate, nondiscriminatory reason
for the discharge.” Id. If Peoploungers satisfies this burden,
“the presumption of age discrimination established by [Houk’s]
prima facie case dissolves,” id., and Houk must show either that
(1) Peoploungers’s reason is not true, but is instead a pretext
for age discrimination, or (2) Peoploungers’s reason, while true,
is only one reason for its actions, and Houk’s age was a
motivating factor for his discharge. Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004).
Assuming arguendo that Houk established a prima facie case
of age discrimination, the district court properly recognized
that no genuine issue of material fact exists as to whether
Peoploungers’s given reason for the discharge was either
pretextual or accompanied by an age-based reason. Although the
parties dispute whether and under what terms Houk’s direct
supervisor gave Houk permission to leave early, the only evidence
presented as to the managers who made the decision to fire Houk
indicates that they believed that Houk did not have permission to
leave. Cf. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995) (“The question is not whether an employer made an
erroneous decision; it is whether the decision was made with
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discriminatory motive.”). And even if we were to infer, as Houk
urges, that Houk’s direct supervisor must have told the decision
makers that Houk had permission to leave, the evidence does not
show that Peoploungers’s given reason is a pretext for age
discrimination or that age was in any way a factor in Houk’s
termination.
Houk points out that he was replaced with a worker who was
nine years younger than him. Houk’s successor, however, was not
hired or promoted into the job, but was merely another worker
already in Houk’s department who was assigned to take over Houk’s
workload after the firing. Further, Houk was fired at age 48,
only a year and a half after he was hired at age 46 by one of the
same managers ultimately involved in the decision to fire him,
making his claim of age discrimination even more tenuous. Cf.
Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996)
(holding that the hiring and firing of an employee by the same
actor within a period of a few years “gives rise to an inference
that age discrimination was not the motive behind [the]
termination”).
Finally, despite the importance that Houk places on the less
severe, 30-day probation given to the two younger workers that
left with Houk on the day in question, there is simply no
evidence indicating that the different treatment was based on
age. One of the younger workers, Houk’s son, left with Houk
because Houk was his ride, and the other worker was Houk’s work
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partner, whose work would have been less efficient without Houk.
More significantly, neither of those workers had a history of
walking off the job without permission, whereas Houk admits that
he quit without notice and walked off the job without permission
in an earlier stint with Peoploungers in 2001, providing a
legitimate justification for punishing Houk more harshly this
time around.
Because Houk points to no evidence that Peoploungers’s
reason for firing him is a pretext for age discrimination or that
age was a motivating factor in his discharge, the district court
properly granted summary judgment to Peoploungers.
AFFIRMED. Costs shall be borne by plaintiff-appellant.
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