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

                                                 FILED
                                                                        September 17, 2009

                                       No. 08-60890                    Charles R. Fulbruge III
                                                                               Clerk



BOB PACOVSKY,

                                                   Plaintiff - Appellant
v.

CITY OF BOONEVILLE MISSISSIPPI; TIM FORTENBERRY, Chief of
Police,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
             for the Northern District of Mississippi, Eastern Division


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff Bob Pacovsky, 52, was fired from his position as a police officer
for the City of Booneville following his involvement in a car wreck. He sued the
city and its police chief (collectively, “Booneville”) under the Age Discrimination
in Employment Act (“ADEA”), alleging that the city fired him because of his age.
The district court granted the defendants’ motion for summary judgment and we
now 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 08-60890

      We review the district court’s grant of summary judgment de novo,
applying the same legal standards as the district court. The parties agree that
the McDonnell Douglas burden-shifting framework applies because the
plaintiff’s ADEA case is purely circumstantial. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). According to this framework:
      First, the plaintiff must prove a prima facie case of age
      discrimination. In this circuit, a prima facie case consists of evidence
      that a plaintiff: (1) was discharged; (2) was qualified for the position;
      (3) was within the protected class at the time of discharge; (4) was
      replaced by someone outside the protected class, or . . . by someone
      younger, or . . . show otherwise that his discharge was because of
      age. If the plaintiff succeeds, the burden of production shifts to the
      defendant to rebut the presumption of discrimination created by the
      prima facie case by articulating a legitimate, nondiscriminatory
      reason for its disparate treatment of the plaintiff. Finally, the
      plaintiff must prove that the defendant’s reasons are pretexts for
      unlawful discrimination either by showing that a discriminatory
      reason more likely motivated the defendant or by showing the
      defendant’s reason is unworthy of credence. The plaintiff retains the
      burden of persuading the fact finder that impermissible
      discrimination motivated the adverse employment decision.
Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir. 1988)
(citations and footnote omitted).
      The first three elements of Pacovsky’s prima facie case are undisputedly
met. Because the burden for establishing a prima facie case is “very minimal,”
we will assume that Pacovsky established the fourth element by showing that
younger officers involved in other car accidents were not terminated.             See
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).
      The burden of production then shifts to Booneville, which articulated
nondiscriminatory reasons for terminating Pacovsky. Pacovsky attempted to
rebut the city’s articulated reasons by showing that his misconduct was
essentially the same as that of the younger police officers who were involved in
car wrecks but were not fired. Pacovsky has conceded that if any of these

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situations are distinguishable from his own, his case fails for failing to show that
the city’s reasons were pretextual. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000).
        Based on our review of the record, Pacovsky has failed to adduce evidence
that rebuts Booneville’s stated reasons for his termination.           The record
demonstrates material differences between Pacovsky’s wreck and the wrecks of
the younger officers who were not terminated. First, Pacovsky violated a direct
order of a superior and multiple departmental policies, whereas one of the
younger officers had permission from the police chief to engage in the chase that
led to his accident. Second, Pacovsky created a danger that was severe and more
than merely negligent; he intentionally tried to stop a fleeing suspect going over
100 miles per hour by blocking the suspect’s path with his and another officer’s
cars.     Third, Pacovsky’s dangerous actions were not justified by the
circumstances. He became involved in a pursuit in which he knew other officers
were already engaged; further, he did not know what the suspect was accused
of when he attempted to stop him.
        For the reasons stated above, the judgment of the district court is
                                                                      AFFIRMED.




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