     Case: 14-60629      Document: 00513118629         Page: 1    Date Filed: 07/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60629                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MILDRED FITZPATRICK; MARTHA J. FOSTER,                                      July 16, 2015
                                                                           Lyle W. Cayce
              Plaintiffs - Appellants                                           Clerk

v.

PONTOTOC COUNTY, MISSISSIPPI,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:12-CV-3049


Before KING, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Mildred Fitzpatrick and Martha Foster appeal the
district court’s grant of summary judgment in favor of Defendant–Appellee
Pontotoc County, Mississippi, on their federal age discrimination claims. For
the following reasons, we REVERSE and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 14-60629
                                        I.
      Gary Moorman was elected Chancery Clerk for Pontotoc County,
Mississippi, and began his term of office in January 2012. At that time, there
were five deputy clerks working in the Circuit Clerk’s office: Mildred
Fitzpatrick, Martha Foster, Anita Tutor, Carla Purdon, and Camille “Cami”
Lipsey. During his campaign, Moorman had stated that he planned on keeping
all five deputy clerks were he to take office.
      After he took office, however, Moorman claims that he began to
encounter problems with the staff. He purports that his primary concerns were
unsupportiveness and what he terms “disloyalty,” but he also claims he was
concerned with excessive use of office computers for personal purposes, rude
customer service, and tardiness. Moorman also encountered a specific problem
with Cami Lipsey.
      On the morning of September 5, 2012, Moorman received a call from the
court administrator’s office, informing Moorman that the clerk’s office had not
disposed of a court case dating from July 2011. Lipsey was responsible for
dealing with matters related to the courts. Moorman claims that when he went
to speak with Lipsey about the call, he noticed that there were numerous other
cases of which she had not disposed. Upset, Moorman called Lipsey into his
office to discuss her failure to handle the cases.
      Fitzpatrick entered Moorman’s office after he had spoken with Lipsey.
Moorman told Fitzpatrick that he had concerns with Lipsey’s performance and
that he was considering firing her. He asked Fitzpatrick whether she thought
that Lipsey was able to do her job, and Fitzpatrick responded that she could.
After discussing Lipsey, Moorman asked Fitzpatrick why she did not retire.
Fitzpatrick told Moorman that she had done a pre-application and that she
could not live on the pension that she would draw. Fitzpatrick mentioned that
one of her major concerns was health insurance.
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                                      No. 14-60629
       Moorman testified that, at the end of the day on September 5, he spoke
to the entire staff about some of his concerns with their performance.
Moorman purportedly told the staff that he was going to put in a time clock
because of tardiness, that he was going to have all computer games removed
from the office computers, that he wanted them to stop using their phones to
access social media websites, and that he wanted “all the gossiping” to stop.
       Moorman came in the next day and, before Fitzpatrick had arrived for
work, told Foster that he had worked up a retirement package for Fitzpatrick,
Foster, and Tutor. 1 Foster told Moorman that she did not want to retire and
did not want a retirement package.               When Fitzpatrick arrived, Moorman
explained to her that he and his wife had drawn up a plan for Fitzpatrick,
Foster, and Tutor to retire.        Moorman told her that she could retire, but
continue to do payroll work part-time (thereby maintaining her health
insurance coverage). Fitzpatrick became very upset and told Moorman that
she did not want to retire and could not afford to retire, and she began crying. 2
Fitzpatrick’s husband came in and spoke to Moorman, and Moorman agreed to
let the retirement plan drop and carry on as before. Fitzpatrick claims that
she was so upset, her blood pressure spiked and she went to the hospital.
       That weekend, Moorman claims he was told by Lisa Baggett that Foster
had remarked to another member of the community that Moorman was not a



       1 This contradicts Moorman’s account. He testified that he drew up a retirement plan
for Tutor only after he heard that she was upset that a plan had been offered to Fitzpatrick
and Foster but not her. Further, Moorman claims that he did not approach Foster about a
retirement package until after he had offered the package to Fitzpatrick.
       2 Moorman describes the conversation differently:

               Okay. While I was telling Mildred about this plan -- you know, I was
       really excited about it, and I was telling her about it, and Ms. Foster started
       saying, you just want to run us off. You just want to force us into retirement.
       You just want to -- you know, you just want us gone. Well, when she started
       saying that then Ms. Fitzpatrick started getting upset. And so it frustrated
       me, and so I said, well, you know, the deal is off the table. Just forget it.
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                                 No. 14-60629
man of his word and that he was incompetent. That Sunday, Moorman drew
up a document listing his concerns with the staff’s performance. The document
included a space for each deputy clerk to sign, indicating her acceptance of its
terms. Moorman claims that he intended to meet with the deputy clerks on
Monday morning and present them with the changes he wanted made. He
testified that he eventually decided it would be futile to do so because he could
not trust them.
      On Monday morning, Moorman met with all of the members of the
county board of supervisors, discussed the problems with his staff, and sought
approval to terminate the deputy clerks (though his mind was still, apparently,
not made up). Later Monday morning, Moorman met with all of the deputy
clerks present that day—Fitzpatrick was still out sick on the orders of her
physician—and fired them all. At the time of their firing, the ages of the
deputy clerks, with the approximate number of years each worked for the
chancery clerk’s office in parentheses, were as follows:
      (1) Fitzpatrick—51 years old (35 years)
      (2) Tutor—59 years old (18 years)
      (3) Foster—64 years old (10 years)
      (4) Lipsey—43 years old (16 years)
      (5) Purdon—39 years old (5 years)
      Fitzpatrick was replaced by Maggie Patrick, who was twenty-nine years
old at the time she was hired. Foster was replaced by Cathy Purdon, who was
forty-four years old at the time she was hired. The remaining new-hires were
aged forty-eight, forty-seven, and thirty-eight years.
      Fitzpatrick and Foster then filed suit against Pontotoc County in the
United States District Court for the Northern District of Mississippi, alleging
unlawful age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”). The district court granted summary judgment in
favor of Pontotoc County. Appellants timely appealed.

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                                 No. 14-60629
                                      II.
      A district court’s grant of summary judgment is reviewed de novo,
“construing all facts and evidence in the light most favorable to the non-moving
party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273
(5th Cir. 2015). Summary judgment is appropriate if “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion
for summary judgment, “[t]he Court must ‘draw all reasonable inferences in
favor of the nonmoving party’ and ‘refrain from making credibility
determinations or weighing the evidence.’” Celtic Marine Corp. v. James C.
Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). That said, “[a] party
cannot    ‘defeat    summary     judgment     with    conclusory    allegations,
unsubstantiated assertions, or “only a scintilla of evidence.”’” Id. (quoting
Turner, 476 F.3d at 343).
                                      III.
      “The ADEA broadly prohibits arbitrary discrimination in the workplace
based on age.” Lorillard v. Pons, 434 U.S. 575, 577 (1978). The ADEA makes
it unlawful for an employer “to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). “Congress’ promulgation of the ADEA
was prompted by its concern that older workers were being deprived of
employment on the basis of inaccurate and stigmatizing stereotypes,” namely,
the stereotype that “productivity and competence decline with old age.” Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).       Because of the ADEA’s
proscriptions, “[t]he employer cannot rely on age as a proxy for an employee’s


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                                       No. 14-60629
remaining characteristics, such as productivity, but must instead focus on
those factors directly.” Id. at 611.
       “To establish an ADEA claim, ‘[a] plaintiff must prove by a
preponderance of the evidence (which may be direct or circumstantial), that
age was the “but-for” cause of the challenged employer decision.’” Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (alteration in original)
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)). If the
plaintiff elects to make his ADEA case by the use of circumstantial evidence,
this court applies the burden-shifting framework in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Jackson v. Cal-Western Packaging Corp., 602
F.3d 374, 378 (5th Cir. 2010). Under the McDonnell Douglas framework, the
plaintiff “must first establish a prima facie case of age discrimination.”
Squyres v. Heico Cos., 782 F.3d 224, 231 (5th Cir. 2015). 3 If the plaintiff “meets
his initial burden, the burden of production shifts to his employer to articulate
a legitimate, nondiscriminatory reason for the challenged employment
decision.” Id. “At this stage, the employer’s burden is one of ‘production, not
persuasion,’ and ‘involve[s] no credibility assessment.’”                Id. (alteration in
original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000)).     If the employer meets this burden by articulating a non-
discriminatory justification, “the presumption raised by the prima facie case is
rebutted and drops from the case.” Id. (internal quotation marks omitted). The
burden then shifts back to the plaintiff to “rebut the employer’s purported




       3The prima facie case requires a plaintiff to show 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 because of his age.” Berquist v. Washington
Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (quoting Rachid v. Jack in the Box, Inc., 376
F.3d 305, 309 (5th Cir. 2004)).
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                                  No. 14-60629
explanation, to show that the reason given is merely pretextual.” Moss, 610
F.3d at 922.
      “A plaintiff may show pretext ‘either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is “false or
unworthy of credence.”’” Jackson, 602 F.3d at 378–79 (quoting Laxton v. Gap,
Inc., 333 F.3d 572, 578 (5th Cir. 2003)). Evidence that an employer’s proffered
non-discriminatory explanation is false is “circumstantial evidence that is
probative of intentional discrimination, and it may be quite persuasive.”
Reeves, 530 U.S. at 147.      “[A] plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully
discriminated.” Id. at 148. “In determining whether the plaintiff’s rebuttal
precludes summary judgment, ‘[t]he question is whether [the plaintiff] has
shown that there is a genuine issue of material fact as to whether this reason
was pretextual.’” Moss, 610 F.3d at 922 (quoting Jackson, 602 F.3d at 378).
      Pontotoc County does not dispute that Appellants have made a prima
facie case of age discrimination. Pontotoc County put forward Appellants’
purported disloyalty as its non-discriminatory justification for terminating
Appellants. Appellants therefore have the burden of establishing a genuine
dispute of material fact as to pretext. Given the record in this case, Appellants
have carried their burden, and the district court erred in granting summary
judgment.
      First, Pontotoc County’s evidence that Appellants were disloyal is weak.
Moorman pointed to Foster’s statements on the Friday before she was
terminated that Moorman was incompetent and not a man of his word. But
that is the only specific example of disloyalty that Moorman could put forward.
In his deposition, Moorman was asked specifically about issues with
Fitzpatrick’s loyalty:
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                                   No. 14-60629
             Q.    What did they do which led you to believe that they
       weren’t loyal?
             A.    Different people in the community would tell me
       things that were being said about my competency and my -- what’s
       the word? I hate to say that they just called me a liar, but my --
             Q.    Well, tell me specifically what those people told you.
       And give me the first person first.
             A.    The first person?
             Q.    Yes.
             A.    And we’re talking which employee?
             Q.    You’re talking -- we’re talking about Ms. Fitzpatrick
       right now.
             A.    Okay.
             Q.    Did anybody in the community say anything about her
       being disloyal or disrespectful about you?
             A.    No.
             Q.    Okay. So that’s only going to be Ms. Foster, is that
       correct?
             A.    Uh-huh (Indicating yes). Ms. Foster.
This   testimony     is    inconsistent   with    Moorman’s     non-discriminatory
justification of “disloyalty” as to Fitzpatrick. Another example Moorman gives
of purported disloyalty was that an elected official, Van McWhirter, told him
“just to be careful cause everybody wasn’t [Moorman’s] friend” and “[t]hat
everybody wasn’t on [Moorman’s] side.” McWhirter apparently did not specify
who wasn’t on Moorman’s “side.” Though Moorman, in his deposition, pointed
to further reasons he felt his staff was disloyal, his descriptions of the offending
behavior are general and devoid of particulars. Moorman admitted that the
only negative statement about him of which he was aware was Foster’s
comment to Lisa Baggett about his not being a man of his word and being
incompetent. The lack of specific examples of “disloyalty,” aside from the one
incident on the part of Foster, undermines Moorman’s purported non-
discriminatory justification, especially as to the other four deputy clerks.
       Those infirmities are compounded by the circumstances of Moorman’s
discussion of retirement with Appellants. Moorman suggested retirement to
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                                   No. 14-60629
Fitzpatrick and Foster before Foster made—and Moorman heard—the
comment about his not being a man of his word. 4 Given that this was the only
specific incident suggesting disloyalty that Moorman could point to on the part
of any of his clerks, a jury could potentially infer from this chronology that
Moorman wanted to get rid of Appellants before he was aware of this comment.
If Moorman had resolved to end Appellants’ employment before he had heard
about Foster’s statement, a jury could infer that his proffered non-
discriminatory justification was a mere post-hoc rationalization. Moorman
also stated in his affidavit that none of the retirement discussions “had
anything to do with my decision to terminate the employment of the deputy
clerks in my office.”     The suggestion that it is merely coincidental that
Moorman offered retirement to three deputy clerks four days before he fired
them could be taken by a jury to further erode Moorman’s veracity.
      Further, Lipsey’s deposition testimony lends some additional support to
Appellants’ showing of pretext. During Lipsey’s deposition, she testified as to
an exchange with Moorman:
             Q.     Did you ever hear Mr. Moorman make any comments
      about wanting to get rid of or replace the older employees and keep
      the younger ones there?
             A.     Yes.
             Q.     Tell me what you heard him say.
             A.     It was actually the day that Mr. Moorman called me in
      the office to fire me, just me, and he told me that I was actually his
      best employee, and he couldn’t understand why I wasn’t doing the
      job. And he said, what I want to do is keep you and Carla, but I
      would like to, you know, get my own people in here. And he said,
      keep you and Carla and get rid of the other ones.
             Q.     So he wanted to get rid of the three older ones?
             A.     Yes.



      4In fact, it was his suggestion of retirement that prompted Foster to make that
comment, given his campaign promise to retain all five deputy clerks.
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                                       No. 14-60629
Given the paucity of evidence supporting any sort of “disloyalty” on the part of
Purdon or Lipsey, a reasonable jury could potentially infer that they were fired
as a cover for unlawful age discrimination against Appellants. 5
       The evidence in this case is undoubtedly thin on both sides. Yet at the
summary judgment stage, the defendant has the burden of showing that there
is no genuine dispute of material fact, and all evidence is viewed in the light
most favorable to the non-moving party. Given the weaknesses in the evidence
supporting Pontotoc County’s purported non-discriminatory justification,
Appellants’ evidence suggesting pretext, combined with their prima facie case,
is sufficient to preclude summary judgment. Resolution of this case will largely
turn on credibility determinations, with regard to both Pontotoc County’s and
Appellants’ witnesses. The district court, in granting summary judgment,
appears to have drawn several of those conclusions as to credibility itself.
While a jury may ultimately reach those same conclusions, assessments of




       5 Pontotoc County also argues that the “same actor” inference should apply in its favor.
“The ‘same actor’ inference arises when the individual who allegedly discriminated against
the plaintiff was the same individual who hired the plaintiff and gives rise to an inference
that discrimination was not the motive behind plaintiff’s termination.” Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 228 n.16 (5th Cir. 2000). The inference arises because “[c]laims
that employer animus exists in termination but not in hiring seem irrational” as it “hardly
makes sense to hire workers from a group one dislikes . . . only to fire them once they are on
the job.” Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (alteration in original)
(quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)), abrogated on other grounds by
Reeves, 530 U.S. 133. The same actor inference likely does not apply on the facts of this case.
First, Pontotoc County cites no case in which the decision to retain an employee—rather than
a decision to hire him—is sufficient to trigger the inference. But cf. Sreeram v. La. State Med.
Ctr.-Shreveport, 188 F.3d 314, 321 (5th Cir. 1999) (applying the inference and affirming
summary judgment where a decision-maker rejected a committee’s recommendation that he
terminate the plaintiff). Second, there is a plausible explanation for the inconsistency that
the jury could accept, namely, Moorman’s campaign promise to retain and work with the
then-employed deputy clerks. See Russell, 235 F.3d at 228 n.16 (“Further, we also note that
the ‘same actor’ inference does ‘not rule out the possibility that an individual could prove a
case of discrimination.’” (quoting Brown, 82 F.3d at 658)).
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                                       No. 14-60629
credibility are not appropriately drawn by the court at the summary judgment
stage. 6
                                             IV.
       Accordingly, the judgment of the district court is REVERSED, and the
case is REMANDED to the district court.




       6  We of course express no view on the ultimate merits of this case once it is submitted
to a trier of fact.
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