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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51168                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 10, 2015
ERICH KELLY,                                                               Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

COSTCO WHOLESALE CORPORATION,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-788


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s grant of summary judgment
in favor of Costco Wholesale Corporation (“Costco”) on Erich Kelly’s claim of
age discrimination. We AFFIRM the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                            FACTS AND PROCEEDINGS
      Erich Kelly was born on January 29, 1958, and worked for Costco
between December 2001 and May 2011. He worked as a meat manager from
June 2002 to July 2009, but he was demoted when an audit discovered that he
falsified paperwork about sanitation procedures. Even though Costco could
have terminated Kelly for this offense, instead it demoted him to cashier and
gave him a permanent counseling notice. Despite the offense, he was
eventually promoted to the position of meat lead, reporting to meat manager
Mark Crosson.
      About two weeks before Kelly’s termination, he asked Costco’s
Warehouse Manager Dave Romo if he could have help in the meat department
while some of his co-workers were out. Kelly claims the following exchange
occurred: Romo “[j]ust kind of chuckled. And he [said], ‘What, you can’t handle
it yourself.’ And [Kelly responded], ‘No I’m not capable man, I’m not no young
kid no more.’ And [Romo said], ‘Well, hell, if you can’t handle it, we’ll get some
young kids that can.’”
      Shortly before Kelly’s termination, on May 16, 2011, Costco’s Texas
Regional Vice President Richard Webb noticed that, while the “Texas Region
as a whole had increased its profit margins over the previous four reporting
periods, the meat department at the Northwest San Antonio warehouse had
lost significant ground during the same timeframe,” with a 35 percent decrease
in profitability. Therefore, on May 19, Costco’s Regional Meat Manager Art
Lozano performed an unannounced inspection of the meat department where
Kelly worked. “During the [inspection], he found numerous violations of Costco
policies and standards, including overproducing [meat], failing to use
production logs, failure to tenderize meat as required, and failing to trim




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salmon filets, among other things.” Kelly was not working on the day of this
inspection.
        Following the inspection, Romo and the Assistant Warehouse Manager
interviewed the meat department employees, including Kelly. Kelly denied
responsibility for the problems with both the meat-trimming and failing to
rewrap bloody packages by saying that “[he] wasn’t there,” because he was not
working the day of the inspection. Some of the meat labels, however, showed
that the meat had been cut on days that Kelly had worked. Furthermore, one
of Kelly’s co-workers told managers that he had seen Kelly fail to tenderize
meat.
        After all of the interviews were completed, Webb considered Kelly’s
responses as well as his previous demotion and decided to terminate him. Kelly
was 53 years old. Webb also terminated meat manager Crosson and two of
Kelly’s co-workers. Like Kelly, both of his terminated co-workers had suffered
prior disciplinary actions. One terminated co-worker was 36 years old. Another
co-worker, Art Diaz, was not terminated because “he did not have a prior record
of performance and/or disciplinary issues.” Diaz was 47 years old. Further,
Webb was 56 years old when he made the decision to terminate Kelly.
        In July 2012, Kelly and the other terminated employees filed a lawsuit
in Bexar County District Court. Costco removed the case to federal court on
the basis of complete diversity and filed a motion for summary judgment,
which the district court granted. Only Kelly has appealed.
                            STANDARD OF REVIEW
        “We review a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” Berquist v.
Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). A summary
judgment motion should be granted if the movant shows that there is “no


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genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Id. at 348-49. When considering whether there
is a genuine issue as to a material fact, all facts “must be reviewed in the light
most favorable to the nonmoving party.” Id. at 349. We may affirm summary
judgment on any ground supported by the record, even a ground that is distinct
from the one on which the district court relied. Id.; Lifecare Hosp., Inc. v.
Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).
                                  DISCUSSION
      The Texas Commission on Human Rights Act prohibits employment
discrimination against individuals “40 years of age or older.” TEX. LAB. CODE
ANN. § 21.101. By adopting the statute, the Legislature “intended to correlate
state law with federal law in employment discrimination cases.” AutoZone, Inc.
v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (quoting Ysleta Indep. Sch. Dist. v.
Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). The Texas Supreme Court thus
looks to federal law when interpreting the Act’s provisions. AutoZone, 272
S.W.3d at 592; see Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.
2003).
      A plaintiff can establish age discrimination through direct or
circumstantial evidence. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309
(5th Cir. 2004). If direct evidence of discrimination exists, no further evidence
is required. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22 (1985);
Berquist, 500 F.3d at 349. Kelly, however, has elected to rely on circumstantial
evidence. Therefore, we must consider the evidence using the test outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell
Douglas, a plaintiff must first demonstrate a prima facie case of age
discrimination. 411 U.S. at 802. Here, we assume without deciding that Kelly
meets his initial burden.


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       Once a prima facie case is raised, the burden shifts to Costco “to
articulate some legitimate, nondiscriminatory reason for the employee’s
[termination].” Id. at 802. This is a burden of production, not persuasion, and
it involves no credibility assessments. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 142 (2000). Here, Costco has satisfied its burden by
producing evidence that it fired Kelly because of problems in his department
and his disciplinary history. Therefore, the burden shifts back to Kelly, who
must show that Costco’s articulated reasons are pretext for age discrimination.
See McDonnell Douglas, 411 U.S. at 804.
       Kelly’s only evidence of pretext is that Romo, the Warehouse Manager,
once said that he would hire “young kids” if Kelly could not do his job. 1 Kelly
produced no evidence of disparate treatment.
       When allegedly discriminatory remarks are offered as circumstantial
evidence “alongside other alleged discriminatory conduct,” pretext is analyzed
using a two-part test. 2 Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir.
2012). Under this test, “[t]he remark must, first, demonstrate discriminatory
animus and, second, be made by a person primarily responsible for the adverse




       1  Because Romo was not Costco’s ultimate decision maker, it is unclear whether
Romo’s alleged discriminatory animus could be attributed to Costco. Typically, courts
attribute a subordinate’s alleged discriminatory animus to an employer through a so-called
“cat’s paw” analysis. In an unpublished opinion, we have expressed doubt as to whether cat’s
paw analysis applies to the Age Discrimination in Employment Act, Holliday v.
Commonwealth Brands, Inc., 483 F. App’x 917, 922 (5th Cir. 2012), the federal analogue to
the state law at issue here. But because we conclude that Kelly has failed to show that Romo
was motivated by discriminatory animus, we need not resolve whether cat’s paw analysis is
available here.
        2 Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 2003), abrogated on other

grounds by Reeves, 530 U.S. at 134, presents a four-part test for determining whether
remarks are sufficient to show age discrimination. But Brown’s four-part test applies only
when “a plaintiff offers remarks as direct evidence.” Reed v. Neopost USA, Inc., 701 F.3d 434
(5th Cir. 2012).

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employment action or by a person with influence or leverage over the formal
decision maker.” Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003).
      Kelly fails the Reed test at the outset because he has not identified any
alleged discriminatory conduct besides Romo’s comment about “young kids.”
Kelly produced no other evidence that he was discriminated against because of
his age; in fact, one meat-department employee who was only 36 years old was
also dismissed, while another who was 47 years old kept his job. The logical
inference is that age was not a factor. See Armendariz v. Pinkerton Tobacco
Co., 58 F.3d 144, 152 (5th Cir. 1995) (reversing ADEA plaintiff’s jury verdict
after considering, among other things, that an older employee was retained
while other employees under the age of 40 were terminated). Moreover, Webb,
the man who decided to terminate Kelly, was three years older than him at the
time. Webb’s membership in the same protected class as Kelly bolsters the
inference that age discrimination was not the reason for his termination. See
Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 2003), abrogated on other
grounds by Reeves, 530 U.S. at 134 (stating that, since the 58-year-old
employee was fired by his 60-year-old employer, there is an inference that “age
discrimination was not the motive”). Indeed, Kelly does not argue that he
produced any affirmative evidence of pretext other than Romo’s statement.
Moreover, the court has consistently found that stray remarks are not enough
to demonstrate discriminatory animus, and nothing indicates that Romo’s
comment was anything other than a stray remark. See Waggoner v. City of
Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (“[A]s we have held on
several occasions, a mere ‘stray remark’ is insufficient to establish age
discrimination[.]”); Cervantez v. KMGP Servs. Co. Inc., 349 F. App’x 4, 10-11
(5th Cir. 2009) (“[A] comment is not evidence of discrimination if it is the sole
proof of pretext[.]”).


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      Even assuming that we could find pretext based on remarks alone,
Romo’s statement fails Reed’s two-part test. Again, the remark by Kelly’s
supervisor, Romo, was: “if you can’t handle it, we’ll get some young kids that
can.” In context, this statement is not evidence of discriminatory animus. Romo
was responding in kind to a topic that Kelly himself brought up when he stated
that he was “no young kid anymore” and thus could not do the work. Romo can
hardly be taken to task for discussing age when Kelly himself raised it as an
excuse for his inability to perform his duties. Further, Romo made this remark
immediately after Kelly asked for increased staffing in the meat department
because of impending absences. It is equally likely that Romo meant that he
was going to bring in some younger employees to help, instead of replace, the
current employees. Cf. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897
(5th Cir. 2002) (finding that management’s goal to “identify ... younger
managers ... for promotion to senior management over the next 5+ years,
ultimately replacing senior management” was not direct evidence of
discrimination because it was not clear that senior managers would be fired to
make room for younger ones, given that senior managers could simply be
replaced as they retired). Also, Romo’s inclusion in the protected class, as a 51-
year-old man, weighs against a finding of discriminatory animus. See Brown,
82 F.3d at 658.
      Kelly also fails Reed’s second prong because he has not produced any
evidence that Romo had “influence or leverage over” Webb, the ultimate
decision-maker. Laxton, 333 F.3d at 583. The district court concluded that,
because Romo “participated in the interviews on which Webb largely based his
termination decisions, and Webb does not appear to have investigated the
reports independently, Romo’s potential age-based animus might be imputed
to Webb.” But, even though Romo was involved in interviewing Kelly, nothing


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indicates that Romo provided Webb with recommendations on whom to
terminate or that his report of Kelly’s interview was biased. Thus, Kelly has
not demonstrated that Romo had “influence or leverage” over Webb.
      Kelly also contends that Costco’s stated reasons for terminating him
were untrue. A plaintiff can survive summary judgment if he shows that his
employer’s reason for termination is “false or unworthy of credence.” Jackson
v. Cal-W. Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010) (quoting
Laxton, 333 F.3d at 578) (internal quotation marks omitted); see Reeves, 530
U.S. at 143. Kelly claims that, when he was demoted, he was told by an
unidentified person that “the notice [of his cause for termination] would only
be in his file for six months.” But Kelly’s counseling notice, which he signed,
indicated that it would be permanent. Regardless, even if the notice was
removed from his file, nothing prohibits an employer from considering previous
discipline or bad behavior in making termination decisions. Thus, Costco’s
consideration of the discipline is worthy of credence.
      Kelly also claims that his failure to deny the meat trimming and
package-rewrapping issues does not mean that he knew about or was
responsible for those issues. Kelly states that he did not deny the existence of
those issues because he was not working on the day of the inspection. But
simply because he was not working on that particular day does not mean that
he did not contribute to the poor presentation of the meat. As Kelly confirms
in his deposition, meat has a three-day shelf life. Some of the meat had labels
stating that it was cut before May 19, and Kelly worked on May 18. Basing the
termination decision in part on Kelly’s involvement in preparing that meat is
thus worthy of credence.
      Kelly critiques the fairness and correctness of the decision to terminate
him. But fairness and correctness do not bear on pretext. Anti-discrimination


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laws were not intended to permit the courts to re-examine employment
decisions. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988).
The laws “do not require an employer to make proper decisions, only non-
[discriminatory] ones.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383,
391 (5th Cir. 2007).
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.




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