   Case: 09-10729       Document: 00511072211          Page: 1    Date Filed: 04/06/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 6, 2010
                                       No. 09-10729
                                                                            Lyle W. Cayce
                                                                                 Clerk



LORI A. DAVIS,

                                                   Plaintiff-Appellant,

versus

FARMERS INSURANCE EXCHANGE,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:08-CV-625




Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Lori Davis appeals the summary judgment on her sex discrimination, age
discrimination, and civil conspiracy claims. We affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10729    Document: 00511072211      Page: 2    Date Filed: 04/06/2010

                                  No. 09-10729

                                         I.
      Davis was an employee of Farmers Insurance Exchange (“Farmers”),
which received two anonymous letters indicating that some of its employees
might be violating company ethics rules by accepting gifts from vendors. In the
course of an internal investigation, Davis admitted that she had allowed Serv-
pro, one of Farmers’s vendors, to pay her entry fees for a golf outing and a fish-
ing tournament.
      One of Davis’s fellow employees, Steve Payne, was also investigated for po-
tential violations of the gift policy. Payne attended the golf outing and the fish-
ing tournament but maintained that he had paid his own entry fees. Despite
Davis’s claim that Payne accepted sponsorship, the investigation produced no
proof that he allowed vendors to pay for his participation.
      Three months after the anonymous letters, Davis was discharged from her
position as senior claims representative at the age of 46. In the termination
memo, Farmers stated that she was being discharged for accepting gifts. Payne,
who was 29, kept his job.
      Davis sued Farmers, alleging sex discrimination in violation of title VII of
the Civil Rights Act of 1964 (“title VII”), 42 U.S.C. § 2000e et seq., and age dis-
crimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq. She also claimed that Farmers had engaged
in a civil conspiracy with Servpro to violate those statutes.
      The district court granted Farmers’s motion for summary judgment, hold-
ing that Davis failed to make out a prima facie case of sex or age discrimination,
and, in the alternative, that Farmers had articulated a legitimate, nondiscrim-
inatory reason for its actions, and Davis failed to create a fact issue as to wheth-
er that reason was pretextual. The court also held that Davis had failed to dem-
onstrate a genuine issue of material fact on the civil conspiracy claim, because
Farmers was not liable for any underlying tort. Davis appeals, arguing that

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summary judgment was inappropriate, because she demonstrated material fact
issues on all claims.


                                               II.
       We review a summary judgment de novo, applying the same standard as
did the district court. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286,
292 (5th Cir. 1998). Summary judgment is proper “if the pleadings, the discov-
ery and disclosure materials on file, and any affidavits show that there is no gen-
uine issue as to any material fact and that the movant is entitled to judgment
as a matter of law.” F ED. R. C IV. P. 56(c). When considering a motion for sum-
mary judgment, the court should view all facts and evidence in the light most fa-
vorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc.,
453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient
to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.
1996). We may “affirm a grant of summary judgment on any grounds supported
by the record and presented to the court below.” Hernandez v. Velasquez, 522
F.3d 556, 560 (5th Cir. 2008).


                                              III.
       Davis claims that she demonstrated genuine issues of material fact on her
sex discrimination claim under title VII and her age discrimination claim under
the ADEA. We review those claims under the general burden-shifting frame-
work set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1 If a


       1
         In Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009), the Court held that the
title VII standard for so-called “mixed-motives” cases was not applicable to claims under the
ADEA. The Court, however, declined to decide whether the general evidentiary framework
of McDonnell Douglas utilized in title VII cases is appropriate in the ADEA context. Id. at
2349 n.2. We therefore remain bound by the burden-shifting framework for ADEA cases that
has been employed consistently in our circuit. See Sandstad v. CB Richard Ellis, Inc., 309
                                                                                   (continued...)

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plaintiff makes out a prima facie case, a presumption of discrimination arises,
and the burden shifts to the defendant to articulate a legitimate, non-discrimina-
tory reason for its actions. Machinchick v. PB Power, Inc., 398 F.3d 345, 352
(5th Cir. 2005). If the defendant meets that burden, the presumption of discrim-
ination dissipates. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       Plaintiff then has the ultimate burden of proving intentional discrimina-
tion. Id. Under title VII, the plaintiff must prove that (1) the defendant’s reason
is not true, but is instead a pretext for discrimination (pretext alternative), or
(2) the defendant’s reason, though true, is only one of the reasons for its conduct,
and another motivating factor is the plaintiff’s protected characteristic (mixed-
motives alternative). Id.; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 94
(2003). The ADEA, however, does not authorize a mixed-motives age discrimina-
tion claim, and the plaintiff must prove that age was the “but-for” cause of the
challenged employment action. Gross, 129 S. Ct. at 2352.
       Even assuming that Davis stated a prima facie case of sex or age discrim-
ination, it is undisputed that Farmers articulated a legitimate, non-discrimina-
tory reason for terminating her employment. It has consistently stated that she
was fired for breaking the company’s gift policy, and violation of company policy
is undoubtedly a legitimate reason for discharge. See, e.g., Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995). After meeting its burden, any
presumption of discrimination dissipated, and Davis had to bring forth evidence
of pretext or a discriminatory motive capable of creating a genuine issue of mate-
rial fact.
       Davis’s self-serving and conclusory statements in the district court were


       1
         (...continued)
F.3d 893, 896 n.2 (5th Cir. 2002) (“This circuit applies the McDonnell Douglas rubric to both
Title VII and ADEA claims.”); see also United States v. Rodriguez-Jaimes, 481 F.3d 283, 288
(5th Cir. 2007) (“Absent an en banc or intervening Supreme Court decision, one panel of this
court may not overrule a prior panel’s decision.”).

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not sufficient for either her title VII claim or her ADEA claim to survive sum-
mary judgment. She offered no competent summary judgment evidence that
Farmers’s articulated reason was pretextual or that its decision was motivated
in any part by her sex or age.2
      Davis first attempted to demonstrate pretext by arguing that Payne com-
mitted the same violation of company policy for which she was terminated but
was allowed to keep his job. She argues that her statements are sufficient to cre-
ate a fact issue as to whether Farmers’s proffered reason for her termination was
false. Those self-serving statements, however, are not competent summary judg-
ment evidence and cannot create material issues of fact. An internal investi-
gation vindicated Payne, and Davis offers only her subjective beliefs in rebuttal.
Those beliefs are insufficient to show that Payne received favorable treatment
despite being similarly situated, and they cannot create a fact issue precluding
summary judgment.
      Davis also stated that she thought Servpro was a “preferred vendor,” so
she believed she was allowed to accept its sponsorship. In addition to being self-
serving, that contention is irrelevant. Her own mistaken belief has no bearing
on whether she presented competent evidence of pretext or discriminatory in-
tent. Similarly, her suggestion that neither her co-worker, Vikki Davis, nor the
owner of Servpro, Bryan Stone, thought that she was violating Farmers’s policy
is also irrelevant. The fact that other people may have also misunderstood the
gift policy does not create a fact issue as to whether Farmers fired her because
of sex or age.
      Finally, Davis produced emails suggesting that other employees accepted
free continuing education classes from Servpro, allegedly in violation of the gift


      2
        Davis also asserts that the district court improperly considered new arguments and
evidence presented in Farmers’s reply to her motion in opposition to summary judgment. The
record provides no evidence to support that assertion.

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policy. Accepting free classes on topics relevant to the company’s business is not
sufficiently similar to accepting payment of golf and fishing fees to support an
inference of discrimination, especially considering that Farmers specifically en-
couraged its employees to take those classes. More importantly, Davis does not
identify any employee who was found to have accepted golf or fishing sponsor-
ship but was not terminated. Her evidence of other instances in which the gift
policy was allegedly violated without repercussion does not support an inference
of discriminatory motive for her termination.
      Davis presented no competent summary judgement evidence to suggest
that her violation of company policy was a pretext or that a discriminatory mo-
tive played any role in her termination. Summary judgment on her title VII and
ADEA claims was therefore appropriate. And, because summary judgment on
those claims was proper, there was no violation of law on which to ground a civil
conspiracy claim.3
      AFFIRMED.




      3
        Because summary judgment was proper on the title VII and ADEA claims, it is not
necessary to address whether, under Texas law, a civil conspiracy claim can be grounded on
a statutory violation rather than a tort.

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