     Case: 17-50562      Document: 00514306526         Page: 1    Date Filed: 01/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-50562
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       January 12, 2018
                                                                           Lyle W. Cayce
YOUNG H. KIM,                                                                   Clerk


       Plaintiff–Appellant,

v.

HOSPIRA, INCORPORATED,

       Defendant–Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-1088


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Young H. Kim was terminated from his employment at Hospira, Inc.
(Hospira). Kim sued Hospira for age- and national origin-based discrimination
under the Age Discrimination in Employment Act (ADEA) and Title VII of the
Civil Rights Act of 1964. The district court granted Hospira’s motion for
summary judgment on both 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 17-50562

                                              I
       Young Kim is a Korean-American who was employed as a Production
Operator at Hospira, a pharmaceutical and medical device company, from 1999
until his termination in 2015. While at Hospira, Kim was involved in the
production of plastic IV fluid bags. After he allegedly failed to discover a
number of defective bags over a four month period, Hospira terminated Kim’s
employment. He was 69 years old at the time of termination.
       Kim then brought this suit against Hospira, alleging unlawful age- and
national origin-based discrimination under the ADEA and Title VII,
respectively.     The district court granted summary judgment for Hospira,
finding that Kim had failed to establish a prima facie case for either form of
discrimination. This appeal followed.
                                             II
       We review a district court’s grant of summary judgment de novo. 1
“Summary judgment is required when ‘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.’” 2 “Where the non-movant bears the burden of proof at trial,
‘the movant may merely point to the absence of evidence and thereby shift to
the non-movant the burden of demonstrating . . . that there is an issue of
material fact warranting trial.’” 3 The non-movant must then “go beyond the
pleadings and . . . designate ‘specific facts showing that there is a genuine
issue for trial.’” 4 Mere “allegations or affidavit or deposition testimony setting
forth ultimate or conclusory facts and conclusions of law are insufficient to


       1 See, e.g., BP Oil Int’l., Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333,
336 (5th Cir. 2003).
       2 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)).
       3 Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)

(quoting Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995) (per curiam)).
       4 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED. R. CIV. P. 56(e)).




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                                         No. 17-50562

defeat a motion for summary judgment.” 5 We “view[] the evidence in the light
most favorable to the nonmoving party.” 6
                                               III
       The district court properly granted summary judgment on Kim’s ADEA
claim. Where, as here, an age discrimination claim relies on circumstantial
evidence, the plaintiff has the initial burden to establish a prima facie case of
discrimination. 7 To meet this burden, Kim must show: “(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.” 8 Kim may show that he was “otherwise discharged because
of his age” by establishing that a comparable employee benefited from
disparate treatment under “nearly identical” circumstances 9—that is, the two
employees “held the same job or responsibilities, shared the same
supervisor . . . and have essentially comparable violation histories.” 10
       Kim failed to make a prima facie case of age discrimination. In his
opposition to summary judgment in the district court, Kim did not allege that
he was replaced by a younger employee or someone outside his protected class.
He now claims that he was replaced by a younger worker but provides no
evidence to support this assertion. Such a bare allegation is insufficient to




       5 Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (citing Duffy
v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995)).
       6 Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
       7 Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)).
       8 Id. (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir.2004)).
       9 Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (quoting Perez v. Tex.

Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206, 213 (5th Cir. 2004)).
       10 Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (citing Little v. Republic

Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991) (dismissing an ADEA claim)).


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meet the summary judgment burden. 11 He has also failed to provide evidence
of employees with similar violation histories being treated differently than
him.        He has not established the fourth prong of a prima facie age
discrimination claim. 12        The district court correctly granted summary
judgment in favor of Hospira on this claim.
                                             IV
       The district court also properly granted summary judgment on Kim’s
Title VII claim. Kim is required to make a prima facie showing of national
origin discrimination by alleging that he was: “(1) a member of a protected
class; (2) qualified for the position held; (3) subject to an adverse employment
action; and (4) treated differently from others similarly situated.” 13 Much like
in his ADEA claim, Kim must show that a comparable employee was treated
differently under “nearly identical” circumstances. 14 Because he was unable
to establish that any comparable employees had similar disciplinary records,
Kim failed to meet the fourth prong of the prima facie standard for national
origin discrimination. Summary judgment for Hospira was appropriate on this
claim as well.
                                     *        *         *
       For these reasons, the judgment of the district court is AFFIRMED.




       11 See Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).
       12 See Lee, 574 F.3d at 260.
       13 Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (per curiam).
       14 Lee, 574 F.3d at 260.




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