                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                        July 23, 2007
                               FOR THE FIFTH CIRCUIT
                                _____________________
                                                                                  Charles R. Fulbruge III
                                                                                          Clerk
                                        No. 07-40002
                                      Summary Calendar
                                   _____________________

BARBARA MERCER,

                                                                    Plaintiff - Appellant,

                                                v.

CAPITOL MANAGEMENT AND REALTY, INC,

                                                         Defendant-Appellee.
                 __________________________________________________

                        Appeals from the United States District Court
                           for the Eastern District of Texas, Tyler
                                  USDC No. 6:05-CV-404
                 __________________________________________________

Before REAVLEY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

       In this age discrimination case, plaintiff-appellant Barbara Mercer (“Mercer”) appeals the

district court’s grant of summary judgment in favor of her former employer, Capital Management

and Realty, Inc. (“Capital”). We review de novo and affirm for the following reasons:

       1.             Mercer failed to establish a prima facie case of age discrimination under the

              McDonnell Douglas burden-shifting test because she did not show that she was

              replaced by someone substantially younger than herself. See O’Connor v. Consol.



       *
         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should not be published and is not precedent except under the limited circumstances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.
     Coin Caterers Corp., 517 U.S. 308, 313, 116 S. Ct. 1307, 1310 (1996);

     McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817

     (1973). Mercer contends that she witnessed two younger employees take over her

     duties at the storage facility for a number of weeks. But Capital adduced evidence

     that the two younger employees were merely temporary and that Mercer’s

     permanent replacements were approximately the same age as Mercer. Under the

     McDonnell Douglas framework, the plaintiff bears the burden of establishing a

     prima facie case. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.

     Mercer has offered no proof to rebut Capital’s assertion that the persons replacing

     her were not substantially younger than she was. Therefore, Mercer has not met

     her burden to establish a prima facie case of age discrimination.

2.          Even if Mercer had established a prima facie case, she failed to demonstrate

     that the legitimate, nondiscriminatory reasons that Capital offered for her

     termination were pretextual. Capital asserts that Mercer failed to implement

     directives, secretly recorded phone calls between herself and her managers, and

     criticized Capital to Equity Based Services, Inc. (“EBS”), the owner of the

     business by, among other things, sending a fax to EBS stating that Capital would

     “cost [EBS] severely if something is not done very soon.” These are legitimate

     reasons for termination.

            Mercer argues that these problems derived from chain-of-command issues

     between EBS and Capital; however, Mercer’s difficulties with the chain-of-

     command do not make it more likely that Capital discriminated against Mercer


                                       2
            because of her age. Mercer’s strongest evidence in favor of age discrimination is

            that one employee witnessed the hiring of many young workers and felt that

            Capital was threatened by older employees; and that another employee told Mercer

            he heard a supervisor say that “higher-ups” wanted younger people, although the

            “higher-ups” were not identified. But the vague feelings of one worker and a

            statement by a supervisor who did not identify the “higher-ups” who allegedly

            wanted younger employees (thus making it unclear whether the people to whom

            the supervisor referred were the same people who terminated Mercer) do not

            sufficiently prove that Capital’s proffered legitimate reasons for terminating

            Mercer were pretextual. Moreover, the district court did not err in holding that

            the “same actor inference” applies to Capital, weakening Mercer’s case. Capital

            interviewed and hired Mercer, thus lessening any possible inference that Capital

            later fired her because of her age. See Nieto v. L&H Packing Co., 108 F.3d 621,

            624 (5th Cir. 1997).

AFFIRMED.




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