United States Court of Appeals,
Fifth Circuit.
No. 95-20143.
Robert D. HALL, Plaintiff-Appellant,
v.
GILLMAN INC.; Frank Gillman Pontiac Company, doing business as
Frank Gillman Pontiac/GMC, Defendant-Appellee.
April 18, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.
STEWART, Circuit Judge:
Robert D. Hall, who was 55 years old at the time, was
dismissed from his position as GMC Truck Sales manager at Frank
Gillman Pontiac Company ("Gillman Pontiac"). He sued, alleging
that age was a determinative factor in his dismissal. The trial
court granted summary judgment to Gillman Pontiac, and Hall
appeals. Finding that Hall had established the existence of a
genuine issue of fact as to whether the reasons given by Gillman
Pontiac for Hall's dismissal from employment were mere pretext, we
REVERSE and REMAND.
FACTS
Gillman is a franchised General Motors dealer of Pontiac cars
and GMC trucks. In 1984, Gillman Pontiac's president, Mr. Ramsey
Gillman, persuaded Hall to close his used car lot and to return to
*
Circuit Judge of the Eighth Circuit, sitting by
designation.
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work for Gillman Pontiac, where Hall had previously worked, off and
on, for a total of about 20 years. From 1984 until January 1990,
Hall was Gillman Pontiac's GMC Truck Sales Manager.
In October 1989, Mr. Gillman met with Hall and Ervin Hawkins,
Hall's counterpart in charge of Pontiac car sales. Mr. Gillman
informed Hall and Hawkins that sales of GMC's and Pontiacs were
down in 1989, and that he was dissatisfied with their performance.
Mr. Gillman advised them that changes would be made if they did not
improve in the next 90 days.
In January 1990, Mr. Gillman told Hall that Gillman Pontiac
was replacing him as GMC sales manager because his performance had
not improved. Mr. Gillman offered Hall a sales position, but Hall
declined and instead left Gillman Pontiac. Hawkins, who is two
years older than Hall, remained as Pontiac car sales manager for
another seventeen months because Mr. Gillman thought Hawkins'
performance had improved.
Hall filed a complaint with the EEOC alleging unlawful age
discrimination. The EEOC issued a no-violation determination, and
Hall then filed suit in Texas state court alleging claims under the
Texas Labor Code. When Hall amended his complaint to include ADEA
claims, the defendants removed the case to federal court. The
district court granted summary judgment for Gillman Pontiac in
February 1995, without opinion.
DISCUSSION
A district court's grant of summary judgment is reviewed de
novo. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th
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Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133 L.Ed.2d
660 (1996). Under Fed.R.Civ.P. 56(c), summary judgment is
appropriate when the evidence, viewed in the light most favorable
to the nonmovant, reflects no genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986).
In order to withstand a summary judgment challenge, an ADEA
plaintiff must first establish a prima facie case of age
discrimination, after which the defendant is given an opportunity
to articulate a legitimate, nondiscriminatory reason for its
disparate treatment of the plaintiff. Lindsey v. Prive Corp., 987
F.2d 324, 326 (5th Cir.1993) (citations omitted). If the defendant
successfully does so, the plaintiff bears the burden of
demonstrating that the reason was pretextual. Id. The ultimate
burden of persuasion remains with the plaintiff. Id.
The plaintiff can demonstrate that the reason was pretextual
in two ways, "either [1] directly by persuading the court that a
discriminatory reason more likely motivated the employer, or [2]
indirectly by showing that the employer's proffered explanation is
unworthy of credence." Thornbrough v. Columbus and Greenville R.
Co., 760 F.2d 633, 639 (5th Cir.1985) (citing Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct.
1089, 1094 n. 8, 67 L.Ed.2d 207 (1981)). Because we are reviewing
a summary judgment, we need not determine whether Hall actually
proved that Gillman's reasons were pretextual for age
discrimination, because in the context of a summary judgment
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proceeding, the question is not whether the plaintiff proves
pretext, but rather whether the plaintiff raises a genuine issue of
fact regarding pretext. Thornbrough, 760 F.2d at 646. Thus, as
restated recently by this court en banc, a plaintiff can avoid
summary judgment if the evidence taken as a whole, (1) creates a
fact issue as to whether each of the employer's stated reasons were
what actually motivated the employer, and (2) creates a reasonable
inference that age was a determinative factor in the actions of
which the plaintiff complains. Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 993 (5th Cir.1996) (en banc). The employer will be
entitled to summary judgment if the evidence taken as a whole would
not allow a jury to infer that the actual reason for the discharge
was discriminatory. Id. Conversely, an employee has created an
issue of fact and the employer is not entitled to summary judgment
if the evidence taken as a whole would allow a jury to infer that
the actual reason for the discharge was discriminatory. See
Thornbrough, 760 F.2d at 646. Hall argues that the evidence he
produced is sufficient for summary judgment purposes. We agree.
Gillman Pontiac concedes for purposes of appeal that Hall has
established a prima facie case of age discrimination, as delineated
by this court in Rhodes, 75 F.3d at 992. However, Gillman Pontiac
contends that it replaced Hall because of his poor sales
performance. Hall argues that Gillman Pontiac's claim is
unbelievable because he had won a major sales award only a few
months before the warning given by Mr. Gillman, and that Gillman
Pontiac ranked high in sales while he was there and has not held
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that rank since he left. He also presents the affidavits of other
employees attesting that he usually worked "bell-to-bell." All
parties admit that Gillman Pontiac was experiencing a slump in
sales at the time, and it is not clear from the record whether
Hall's sales had fallen off any more than anyone else's. Hall also
argues that direct evidence shows Gillman Pontiac was motivated by
a discriminatory reason to dismiss him. He presents the affidavits
of several employees and former employees attesting that Gillman
Pontiac's general sales manager and chief operating officer
repeatedly stated their intent was to get rid of the old salesmen
at the dealership.
We conclude from the summary judgment record that Hall has
created a genuine issue of fact as to whether Gillman Pontiac
dismissed him for poor performance or because of his age. In
Thornbrough, we reversed a summary judgment because we found that
the appellant had created a genuine issue of fact as to pretext.
Thornbrough, 760 F.2d at 647. We noted that through the dim mists
of the record as it stood at the time, we perceived a thin vapor.
Thornbrough, 760 F.2d at 648. As in Thornbrough, "whether this
vapor will precipitate into a victorious shower is a question for
the jury." Id. The trial court erred in granting summary judgment
under the facts and circumstances of record. We therefore REVERSE
and REMAND for further proceedings.
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