Brummett v. Innovex America Holding Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 20, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20118
Summary Calendar
_____________________

GENEAL D. BRUMMETT,
Plaintiff - Appellant,

versus

INNOVEX AMERICA HOLDING COMPANY, doing business as Innovex Inc.,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. H-02-CV-4846
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

In this employment action, Geneal Brummett sued her former

employer, Innovex America Holding Company (“Innovex”), alleging age

discrimination under the Age Discrimination in Employment Act, 29

U.S.C. § 623(a) et seq., and intentional infliction of emotional

distress under Texas state law. Brummett filed this action after

being discharged from her position as a sales associate on May 30,

2002.

*
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this opinion should not be published and is not precedent except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.
 Innovex moved for summary judgment on both claims. With

respect to the age discrimination claim, Innovex contended that

Brummett had failed to raise a fact issue as to whether Innovex’s

proffered legitimate, nondiscriminatory reasons for discharging her

were pretextual. With respect to Brummett’s claim of intentional

infliction of emotional distress, Innovex argued that its conduct

was not “outrageous,” a necessary element in establishing liability

for this claim under Texas state law. See Texas Farm Bureau Mut.

Ins. Co. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002).

The district court granted Innovex’s motion and dismissed both

claims for the reasons urged. Brummett now appeals the dismissal

of the age discrimination claim to this court, contending that she

had produced evidence tending to show that Innovex’s proffered

legitimate, nondiscriminatory reason for her termination was

pretextual.1 We disagree.

1
It is unclear whether Brummett is also attempting to appeal
the district court’s dismissal of her state law intentional
infliction of emotional distress claim. She does devote a couple
of pages in the fact section of her brief to a description of the
emotional injuries ostensibly caused by Innovex’s alleged actions.
However, apart from this brief and ambiguous reference to these
injuries, she does not identify the district court’s dismissal of
the emotional distress claim as an issue for review, nor does she
make any effort to engage in a legal analysis by citing any
authorities in support of the proposition that the district court
erroneously dismissed this claim. Accordingly, we conclude that
she has waived her right to appeal this issue. See, e.g., Adams
v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir.
2004)(“Issues not raised or inadequately briefed on appeal are
waived.”); L & A Contracting Co. v. S. Concrete Servs., Inc., 17
F.3d 106, 113 (5th Cir.1994) (finding an issue was not adequately
briefed, and thus waived, where no authorities were cited in a one-

2
 In her exceedingly thorough opinion dismissing the age

discrimination claim, Judge Rosenthal correctly recognized that

because Brummett was relying solely on circumstantial evidence in

support of her claim, the burden-shifting approach of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802,(1973), must guide the

court’s inquiry. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d

893, 896 (5th Cir. 2002). Applying this framework, the district

court held that although Brummett had successfully made out a prima

facie case of age discrimination, thereby shifting the burden to

Innovex to produce a legitimate, nondiscriminatory reason for the

challenged employment decision, she had failed to present evidence

tending to show that reason proffered by Innovex was pretextual.

See id. at 897.

Specifically, the district court found that Innovex had

provided two legitimate reasons for terminating Brummett --

violations of company policy and poor job performance. However, it

concluded that Brummett was unable to produce any evidence that

would suggest either of these reasons was a mere pretext. The

district court noted that both of Innovex’s proffered explanations

were firmly supported by documentary and testimonial evidence. In

contrast, support for Brummett’s pretext argument relied solely

upon her own self-serving and conclusory assertions or the

testimony of others who lacked any established personal knowledge

of the disputed facts. The district court also observed that other

page argument in an appellant’s brief).
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evidence supported Innovex’s assertion that it had not

discriminated against Brummett, including the fact that Innovex had

fired a substantially younger employee at the same time for

violations of the same company policy. Finally, the district court

dismissed as “stray remarks” several age-related comments Innovex

employees allegedly made to Brummett, concluding that they were

either too ambiguous to be probative or had been made by

individuals without authority or influence over Innovex’s decision

to terminate Brummett’s employment. See, e.g, Wyvill v. United Co.

Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2002) (“In order for an

age-based comment to be probative of an employer’s discriminatory

intent, it must be direct and unambiguous . . . .”); Krystek v.

University of Southern Mississippi, 164 F.3d 251, 256 (5th Cir.

1999) (holding that a comment made by a person who played no role

in the employment decision was a “stray remark” that lacked any

probative value as a matter of law). Concluding that Brummett was

thus unable to provide evidence demonstrating the falsity of

Innovex’s proffered nondiscriminatory reasons for firing her, the

district court dismissed the claim.

We have examined the briefs, the record, and the district

court’s opinion, and we find no error in its legal analysis or its

application of this legal analysis to the facts of this case.

Thus, for the reasons indicated above, examined in much greater

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detail in the district court’s careful opinion, the district

court’s judgment is

AFFIRMED.

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