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

                                                 FILED
                                                                            April 17, 2009

                                     No. 08-50831                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CHARLES BRAYMILLER

                                                   Plaintiff-Appellant
v.

LOWE’S HOME CENTERS INC.

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:07-CV-196


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       Charles Braymiller appeals the district court’s order granting summary
judgment in favor of Lowe’s Home Centers on Braymiller’s claim of age
discrimination under the Texas Commission on Human Rights Act (“TCHRA”).
Finding no error, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-50831
                             I. BACKGROUND
      Braymiller began working for Lowe’s in August 2002 as an assistant store
manager at age 59.    He was promoted to store manager of a store in San
Antonio, Texas, in March 2004 by human resources director Terry Gillespie and
district manager Steve Jordan. Medina, in his 40s, replaced Jordan as district
manager in June 2005. Although Braymiller’s performance reviews improved
under Medina, Braymiller claimed that Medina began calling him “young man,”
“boy,” and “son” in front of Braymiller’s subordinates
      In December 2005, Braymiller brought his wife to look at items for their
new home and to take advantage of the 20 percent seasonal employee discount.
Braymiller’s wife picked out a dishwasher and an oven from the clearance isle.
The dishwasher was priced at $716 and the oven was priced at $636. Braymiller
spoke to the manager on duty and his subordinate, Scott Decker, about receiving
an additional discount. Decker quoted $400 for each item, a 50 percent discount.
Decker later testified that he would not have given this price to a customer and
that he believed this was the price Braymiller was expecting him to quote.
Decker processed the transaction using his manager override for the discount.
      Two days later, Braymiller asked administrative manager Chris Luke to
refund Braymiller an additional 20 percent as part of the seasonal employee
discount. To do this, Luke needed a manager override code. A transaction
report, signed off by Braymiller the next day, showed that the transaction was
completed under Braymiller’s login and with his scan card and override code.
This would mean that Braymiller was the customer, cashier, and manager for
this purchase. It is a violation of Lowe’s policy for an employee to use his own
scan card to unlock the price on his personal transaction.
      A store loss prevention manager looked into the purchase and discount a
few days later and reported the incident to his superior.     The district loss
prevention manager opened an investigation and gave the report to the regional


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loss prevention manager, James Rodriguez. Braymiller attempted to alter the
report, but after learning that he could not, Braymiller brought the situation to
Medina’s attention. In this conversation, Braymiller acknowledged that his scan
card had been used but stated that he had either been in front of the register or
in his office at the time.
      Braymiller then asked Decker to prepare a statement about the incident.
Braymiller admitted that he may have told Decker to keep the statement short
and to write that Braymiller did not influence him. The statement from Decker
asserted that the price quoted to Braymiller would have been given to a
customer and that Braymiller did not pressure him. Later, in his deposition
given under oath, Decker indicated neither statement was true.
      Braymiller was told that he was under investigation. In response, he
prepared a statement that said that he had been in his office when Luke
processed the refund. Medina, Gillespie, and Rodriguez viewed a closed circuit
video of the transactions. Based on the evidence in the video, Medina believed
that Braymiller had not been truthful.      During his deposition, Braymiller
admitted he was present when the refund was processed but claimed this was
an honest error of recollection. Both Braymiller and Decker were brought in to
discuss the situation with Medina, Gillespie, and regional vice president Don
Stallings. After the interview, these men decided to terminate Braymiller. No
one made age-related comments during the interviews.
      Gillespie prepared the paperwork for Braymiller’s termination, listing the
reason for the termination as “Violation of Lowe’s Code of Ethics: personal
conduct, to avoid transactions and situations in which your interests conflict or
could be viewed as conflicting with those of Lowe’s.” Braymiller was informed
on January 20, 2006. Gillespie testified that he terminated Braymiller because
he used his position to obtain an improper discount, involved subordinates in the
transaction, and showed poor judgment during the investigation.          Medina


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testified that the basis for termination was that Braymiller rang up his own
merchandise and that it was not a price available to customers. Medina also
agreed with the termination because he felt that Braymiller had been dishonest
about what happened during the refund transaction.
      Braymiller brought the current action based on diversity jurisdiction
alleging age discrimination under the TCHRA. He appeals from the district
court’s adverse summary judgment.
                               II. DISCUSSION
      This court reviews a district court’s grant of summary judgment de novo.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is
proper “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)
(quoting Fed. R. Civ. P. 56(c)).
      Braymiller’s claims were brought solely under the TCHRA. The TCHRA
requires Braymiller to demonstrate that “age . . . was a motivating factor for an
employment practice, even if other factors also motivated the practice.” Tex.
Lab. Code § 21.125(a). Because one of TCHRA’s purposes was to “provide for the
execution of the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments,” Tex. Lab. Code § 21.001(1), Texas courts have looked
to “analogous federal statutes and the cases interpreting them guide [their]
reading of the TCHRA.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476
(Tex. 2001).   The resulting analysis has been indistinguishable from the
McDonnell Douglas burden-shifting framework, as modified in light of Desert
Palace. See id. at 476–477.
      A prima facie claim for age discrimination requires proof 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,

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       ii) replaced by someone younger, or iii) otherwise discharged
       because of his age.

Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (quoting
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)).                  Once
Braymiller establishes a prima facie case, the burden of production shifts to
Lowe’s to proffer a legitimate nondiscriminatory reason for its employment
action. Both parties agreed below that Braymiller had established a prima facie
case and that Lowe’s provided a non-discriminatory reason for his termination.1
       Braymiller then had the burden to produce evidence “tending to show that
the reason offered by the defendant is pretext for discrimination.” Machinchick,
398 F.3d at 350. The Texas Supreme Court has held that “the discrimination
need only be ‘a motivating factor’ in the adverse employment decision to
establish liability” in TCHRA unlawful employment practice claims. Pineda v.
UPS, 360 F.3d 483, 488 (5th Cir. 2004) (quoting Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 476 (Tex. 2001)).
       The district court found that Braymiller did not provide sufficient evidence
to rebut Lowe’s articulated reasons for termination. Because Braymiller also
provided no evidence that Medina treated him differently than others outside
the protected class or that Medina’s “stray remarks” were in any way related to
his discharge, the district court granted Lowe’s motion for summary judgment.
       On appeal, Braymiller argues that Lowe’s justifications are inconsistent
and baseless. Braymiller points to two allegedly different justifications stated
in his termination paperwork: Lowe’s stated that Braymiller was fired for
“violation of company policy” in one document and “code of ethics” in a different
document. Braymiller also contends that Lowe’s briefing on summary judgment


       1
         Braymiller argues that he “did nothing of the sort,” but “merely stated what Lowe’s
had claimed to be such a reason.” Because Braymiller does not argue that this reason in and
of itself was discriminatory, we assume that Braymiller has acknowledged that this
articulated reason was not discriminatory.

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in the district court shifted between its first brief, which centered around the
refund transaction as the cause of his being fired, and its reply brief, which
centered around his conduct during the investigation. Finally, Braymiller agues
that the district court erred by requiring him to provide evidence of age animus
in addition to his strong prima facie case and the evidence of pretext.
       These arguments are unconvincing.               The justification from Lowe’s
employees has always concerned the same events. The supposed inconsistencies
to which Braymiller refers are at best a change in emphasis regarding which
violation of company policy they believed was more important in the final
decision to discharge him.            Varying explanations are not necessarily
inconsistent. The motivating factor here was Braymiller’s purchase of two items
at a heavily discounted price and his actions during the resulting investigation.
At no point has Braymiller produced evidence that would tend to show that
these events were a pretext for age-related discrimination.1
       Braymiller is also unable to cite analogous case law. Braymiller relies
heavily on Taylor v. County Bancshares, Inc., 325 F. Supp. 2d 755 (E.D. Tex.
2004). In Taylor, the court found that an employer’s termination justifications
were self-contradictory.       One decision maker testified that the plaintiff’s
department had been eliminated because it was unprofitable. A second decision
maker testified that this was not the reason he had eliminated the department.
We have no directly contradictory statements here.               Instead, Gillespie and
Medina agreed that Braymiller’s termination stemmed from these events; they
differed only in emphasis as to which policy violation was more important.
       Braymiller argues that Lowe’s explanation is subjective and does not
qualify as a nondiscriminatory reason. See Patrick v. Ridge, 394 F.3d 311, 316



       1
        We agree with the district court’s conclusion that Medina’s stray remarks referring
to subordinates (often in Spanish) as “boy” or “son” are not probative of age discriminatory
animus here.

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(5th Cir. 2004). Lowe’s asserts that Braymiller’s improper purchase and conduct
during the resulting investigation showed a lack of ethics. Braymiller criticizes
this as a “content-less and non-specific statement, such as the candidate is not
‘sufficiently suited’ for the position [that] is not specific enough to meet
defendant employer’s burden.” Id. at 317. On the contrary, Lowe’s conclusion
stems from specific misconduct and violations of the ethics code.
      Braymiller provides several record citations in an attempt to prove that
Lowe’s was incorrect about whether his actions violated company policy
concerning available discounts. This court, however, does not try “the validity
of good faith beliefs as to an employee’s competence.” Little v. Republic Refining
Co., 924 F.2d 93, 97 (5th Cir. 1991). Further, this court “cannot protect older
employees from erroneous or even arbitrary personnel decisions, but only from
decisions which are unlawfully motivated.” Bienkowski v. Am. Airlines Inc.,
851 F.2d 1503, 1508 (5th Cir. 1988). Thus, as the district court noted, even if
factual disputes surrounding the amount of the discounts are resolved in
appellant’s favor, and in the unlikely event that Lowe’s management erred in
concluding that Braymiller’s conduct violated company ethics standards, no
evidence supports a conclusion that these management mistakes were
pretextual.
                             III. CONCLUSION
      Because there is no evidence that Lowe’s proffered explanations were
pretextual, and offered in an effort to obscure an age-motivated decision, the
judgment of the district court granting summary judgment to Lowe’s is
AFFIRMED.




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