     Case: 12-40424       Document: 00512322871         Page: 1     Date Filed: 07/26/2013




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

                                                                            FILED
                                                                            July 26, 2013

                                       No. 12-40424                        Lyle W. Cayce
                                                                                Clerk

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                  Plaintiff-Appellant
v.

DYNMCDERMOTT PETROLEUM OPERATIONS COMPANY,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No.1:10-CV-510


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is an appeal from the district court's grant of summary judgment for
DynMcDermott (DM) in an enforcement action brought by the Equal
Employment Opportunity Commission (EEOC) under Title I to the Americans
With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and Title I of the Civil
Rights Act of 1991. Because a genuine issue of material fact exists, we find that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40424

the district court erred in granting summary judgment for DM on the claims of
discrimination under the ADEA and the ADA. Therefore, we REVERSE.
                      FACTS AND PROCEDURAL HISTORY
      Phillip Michael Swafford worked for DynMcDermott1 (DM) as a
planner/scheduler for over two years between 1998 and 2000. The record
indicates that Swafford was a good, conscientious employee with an excellent
attendance record. Swafford was transferred to a higher-paying position in
December of 2000 and was laid off in 2003. Swafford’s wife was diagnosed with
an advanced stage of cancer in the fall of 2007. In 2008, Swafford, who was then
self-employed, was encouraged by former co-worker and then-current DM lead
scheduler June DuBois to apply for a vacant planner/scheduler position at DM’s
Big Hill2 field storage site in Winnie, Texas. DuBois contacted Swafford with the
approval of supervisor Ray Wood. Swafford, then 56 years old, applied for the
position. Wood emailed the DM recruiter on January 31, 2008, asking for
Swafford’s resume and saying, “I would like him to be the one we talk to. He has
been a scheduler here before and he knows the job[.]”
      Wood and DuBois identified Swafford as a good choice and the best
candidate, and Wood indicated his desire to hire Swafford for the position.
However, site director Tim Lewis, who had longstanding issues with Wood,
disagreed. Lewis repeatedly asserted, verbally and in email, that Swafford was
a poor choice because he was too old and his wife had cancer, which Lewis said
required a lot of Swafford’s time at home. Lewis further indicated that, because
of DM’s aging workforce problem, the position should be filled by someone
younger who did not have a disabled spouse.



      1
       New Orleans-based DynMcDermott contracts with the Department of Energy (DOE)
to manage the country’s strategic petroleum supply.
      2
          Big Hill is one of DM’s four crude oil petroleum storage sites.

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                                 No. 12-40424

     With regard to relevant emails, on February 4, 2008, Lewis sent a
confidential email to his supervisor, Deborah Hojem, the New Orleans-based
Director of Operations and Management for DM, saying:
     I may need to get Mike Swafford as a temp to help out until we get
     a new hire.

     Ray, June and Danelle wanted to hire him permanently. Mike had
     been previously trained to do this job since he was having problems
     doing his job as and [sic] I&C tech. I just put the nix to this for
     following reasons that I can only tell you.

     1.      He was riffed already
     2.      His wife has cancer and requires and [sic] lot of his time at
             home
     3.      He is at least 56 and has his own medical problems (he had
             bad attendance record when he was riffed)

     We have only had about two, maybe three other applications.
     Everyone seems to be at least in their 50's. Now I don’t have a
     problem with “young folks” but I need to have someone that will be
     here for a long, long time.

Lewis’ claim that Swafford had bad attendance when he was laid off is
unsupported by the record. Lewis testified at his deposition that Swafford did
not miss a lot of work while employed at DM. Also, others said that Swafford
actually had an excellent attendance record.
     Lewis     also   told   DuBois   and   Danelle   Houston,   another     DM
planner/scheduler, on February 4 that he was opposed to hiring Swafford
because of his age and because his wife had cancer.
     On February 6, 2008, Lewis sent an email to DM employee Chris Breaux,
with a copy to Hojem, which said:
     As you know, we lost one of our three schedulers a week or so ago.
     I stopped the hiring of a person who used to work here several years
     ago and who was riffed. He also had bad attendance record and a
     very ill spouse (cancer). However, he was trained in doing


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                                  No. 12-40424

      scheduling since he could not go out into the field to do his regular
      I&C (at that time) work.

      Long story short. In discussing this with June DuBois, (who by the
      way had ALREADY CALLED THIS PERSON), she said that it
      takes 1.5 YEARS to learn the job.

      I just decided not to say anything.

      How long do you feel it would take to train a newbe [sic] (someone
      out of high school and maybe wanting a career – maybe in mid-
      twenties or so)?

      My personal opinion (and that is all it is) is that a person could be
      pretty darn good within 6 months.
      Thanks.

      Tim

      On February 7, Lewis told Wood during a managers’ regular morning
meeting that he did not want Wood to hire Swafford because of Swafford’s age
and his wife’s illness. Wood replied that those requirements were in violation
of the law and said Lewis could do the hiring himself. Lewis testified during his
deposition that, when he told Wood at the meeting he was opposed to hiring
Swafford, “Ray literally kind of starting [sic] screaming, ‘Tim, you’re telling me
to – you’re telling me to commit a felony. Tim, you’re telling me to commit a
felony. Tim, you’re telling me to commit a felony.’” To which, Lewis responded,
“[l]ook, Mike is old.”
      Lewis later sent an email indicating that he would be on the hiring board
and drafted a Corrective Action Memo (CAM) against Wood for insubordination
based on his comments at the meeting. The CAM included the following
language: “Failure to follow these instructions will result in further disciplinary
action up to and including termination.” Lewis forwarded the CAM to Hojem




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                                   No. 12-40424

and Human Resources (HR) Director Dione Heusel for review and edit. Lewis
also met with Wood about the CAM.
       Shortly after the meeting on February 7, Bernadette Nelson, a DOE
employee based at Big Hill who attended the managers’ meeting, sent Lewis an
email containing a web link to the EEOC guidance on age discrimination in
response to his comments. Lewis responded, “[a]ctually, I know about this,”
offered an explanation as to the need for “folks who can be around a while and
continue to contribute” and further referenced the “aging workforce.” Lewis then
forwarded the EEOC link provided by Nelson to other employees with the
following statement: “This morning in reference to hiring a scheduler, I
mentioned an age. I have never, nor will I ever discriminate on age or any other
issue which is protected by law. Not because it is the law but because it is what
is fair.”
       Lewis later “informally” removed himself from the hiring board, but
proceeded with the CAM against Wood. On February 11, 2008, Lewis emailed
Hojem of his intention to give Wood the CAM along with a reminder and list of
expectations, which said in relevant part:
       You need to keep this as a reminder that you will be held
       accountable for your actions.

       1. Your insubordination on Feb. 7 had ZERO to do with any failure
       of mine to communicate with you. Your, “You have to communicate
       with me, Tim”, was a feeble attempt to shift blame to me and to try
       to justify your insubordination. The blame is 100% on you. You
       chose to believe June DuBois and you failed to communicate with
       me. Furthermore, spreading false rumors will definitely not be in
       your best interest (i.e., that Shelby and I can do the hiring since you
       also believed that Brigitte was in my office being assured she would
       get the scheduler position when I had no knowledge of it).
       ...
       4. Your insubordination (continued insubordination) will be
       properly annotated in the written portion of your performance
       evaluation to ensure this incident is not forgotten.

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Lewis also indicated that Wood should have received a CAM for a prior incident
after a hurricane and that he already had a CAM for sexual harassment.
However, Hojem testified in her deposition that she did not know what Lewis
was talking about with regard to any CAM for sexual harassment.
      Although Lewis drafted the CAM for insubordination and met with Wood
about it, the CAM ultimately did not end up in Wood’s file. Lewis testified at his
deposition that he thought “it died a natural death” because Wood “decided he
was going to do the hiring.” Further, Lewis said, “Ray, at some point in time,
decided he was going to do it. So I didn’t pursue it.”
      On February 8, a DM recruiter forwarded the resume of Mark Thomas,
then 34 or 35, to Wood with a note saying, “[t]his resume may be a bit of a
stretch of what you are looking for.” On February 18, Wood emailed the
recruiter and said that only two applicants, Swafford and Raymond Kuykendall,
had planner/scheduler background. On February 20, the recruiter sent Wood
the resume of Stephen Sajewicz and Wood indicated an interest in interviewing
him. On February 25, the recruiter emailed Wood to tell him that she had
spoken to Kuykendall, but his salary requirements were too high. She further
said, “I got your voice message that you were going to speak with Stephen
Sajewicz today on the phone. I guess that leaves your only other candidate as
Phil Swafford.” Interviews were conducted on February 27, 2008, by Wood,
DuBois and Hojem. Swafford, who lived locally, was interviewed in person.
There is evidence in the record that Wood asked Swafford, during the interview,
if his wife’s cancer would interfere with his work attendance and that Swafford
indicated it would not. Sajewicz and Thomas, who had never been identified as
a qualified candidate, were interviewed over the telephone. Wood brought
Thomas in from Virginia for a face-to-face interview at DM’s expense while
DuBois was on leave and unable to participate. Hojem was also not present for



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                                       No. 12-40424

that interview. Wood made a decision to hire Thomas on March 11, 2008, which
was prior to Thomas’ in-person interview.
      On August 26, 2010, the EEOC filed an enforcement action under the
ADA, the ADEA, and the Civil Rights Act of 1991, asserting that DM failed to
hire Swafford because of his age and because of his association with a family
member with a disability. Thereafter, the district court granted DM’s motion for
summary judgment and the EEOC filed this appeal.
                              STANDARD OF REVIEW
      This Court reviews de novo a district court’s grant of summary judgment,
viewing all evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party's favor. Dediol v. Best Chevrolet,
655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper 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. Fed. R. Civ. P. 56(a). “A
genuine issue of material fact exists ‘if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.’” Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
                                      DISCUSSION
I.   Whether the district court erred in granting summary judgment
for DynMcDermott under the ADEA and the ADA.

II.   Whether the district court erred in holding that the evidence
would not support a finding that the proffered reasons for the failure
to hire were not worthy of credence.3

      The EEOC asserts that the district court erred in granting summary
judgment because there was ample evidence, whether direct or circumstantial,
to send the case to a jury. DM asserts that summary judgment was proper.

      3
          Because these issues are intertwined, they are combined for discussion.

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                                    No. 12-40424

      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).      A plaintiff has the
burden of proving by a preponderance of the evidence, direct or circumstantial,
that age was the “but-for” cause of the employer’s adverse action. Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).
Again, a discrimination case may be proved through either direct or
circumstantial evidence. Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d
325, 328 (5th Cir. 1994).
      Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 36 L.Ed. 2d 668 (1973), a plaintiff relying on circumstantial evidence must
establish a prima facie case of discrimination. Moss v. BMC Software, Inc., 610
F.3d 917, 922 (5th Cir. 2010). See also Jackson v. Cal-Western Packaging Corp.,
602 F.3d 374, 378 (5th Cir. 2010). The burden then shifts to the employer to
provide a legitimate, nondiscriminatory reason for the action. Moss, 610 F.3d
at 922. If the employer articulates a legitimate, nondiscriminatory reason for
the action, the plaintiff must then rebut the employer’s purported reason to show
that it is merely pretextual. Id.
            In determining whether the plaintiff’s rebuttal precludes
      summary judgment, the question is whether the plaintiff has shown
      that there is a genuine issue of material fact as to whether this
      reason was pretextual. 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. A showing
      that the unsuccessful employee was clearly better qualified (as
      opposed to merely better or as qualified) than the employees who
      are selected will be sufficient to prove that the employer’s proffered
      reasons are pretextual.
Id. (Internal marks and citations omitted).



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                                   No. 12-40424

      To establish a prima facie case of age discrimination in this context, the
EEOC must show that (1) DM failed to hire Swafford; (2) he was qualified for the
position; (3) he was within the protected class (age 40 or over) at the time; and
(4) a younger person was hired. Jackson, 602 F.3d at 378; see also Haas v.
ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999).
      The ADA makes it unlawful for a covered employer to discriminate against
an individual because of his disability or because of his relationship or
association with an individual with a disability. 42 U.S.C. § 12112(a), (b)(4).
Under the ADA, the discrimination need not be the sole reason for the action,
but must play a role in the employer’s decision-making process and have a
determinative influence on the outcome. Pinkerton v. Spelling, 529 F.3d 513,
519 (5th Cir. 2008).
      This Court has said that, “[t]o qualify as direct evidence, a document [or
comments] must be (1) age related, (2) proximate in time to the [action], (3) made
by an individual with authority over the termination, and (4) related to the
employment decision.” Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th
Cir. 2003); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012).
      The district court found that the evidence referenced by the EEOC did not
constitute direct evidence because it required drawing certain inferences.
Specifically, the district court said:
      First, an inference must be made that despite being removed from
      the hiring process by Hojem, Lewis still played a role in the decision
      to not hire Swafford. And second, the fact-finder would have to infer
      that Wood was cowed by Lewis, even though Wood stood up to Lewis
      during the February 7 morning meeting, never received the
      threatened CAM, and was reassured by Hojem that no adverse
      consequences would arise from Lewis’s actions and statements.

The district court further found that, even if the evidence does not require the
fact finder to make inferences, Lewis’ statements and actions “amount to mere


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                                 No. 12-40424

stray remarks” because the EEOC cannot satisfy the element which requires the
comment-maker to be the one with authority over the hiring decision. We
disagree.
      Stray remarks are analyzed under Brown v. CSC Logic, Inc., 82 F.3d 651
(5th Cir. 1996), in direct evidence cases. This Court has said that, post-Reeves
v. Sanderson Plumbing Products, 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000), the stray remarks doctrine remains intact where the plaintiff has failed
to produce substantial evidence of pretext. Auguster v. Vermilion Parish School
Bd., 249 F.3d 400, 405 (5th Cir. 2001). See also Wallace v. Methodist Hosp.
System, 271 F.3d 212, 223 (5th Cir. 2001). Here, the district court applied the
stray remarks doctrine before determining whether the plaintiff had failed to
produce substantial evidence of pretext and then refused to consider those
remarks in determining pretext, which will be discussed later herein.
      Notwithstanding that the district court’s analysis appears to be flawed,
courts do not “blindly accept the titular decisionmaker as the true
decisionmaker.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.
2000). “Rather, the discriminatory animus of a manager can be imputed to the
ultimate decisionmaker if the decisionmaker ‘acted as a rubber stamp, or the
“cat's paw,” for the subordinate employee's prejudice.’” Laxton v. Gap Inc., 333
F.3d 572, 584 (5th Cir. 2003). The relevant inquiry this court has applied in a
circumstantial evidence case is whether Lewis had influence or leverage over
Wood’s decisionmaking. Id.
      The district court found that “Wood was not Lewis’s cat’s paw because
there is no evidence that Lewis had the requisite influence, control, or leverage
over Wood’s decision to not hire Swafford.” However, this finding is unsupported
by the record. There is no dispute that Lewis was Wood’s direct supervisor and
was responsible for Wood’s performance evaluations and implementation of
disciplinary actions, such as the CAM Lewis prepared after Wood spoke out

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                                       No. 12-40424

against refusing to hire Swafford based on age and his wife’s disability and the
statements that Wood should have or did receive discipline regarding two earlier
incidents. Also, Wood’s pay and any raises were merit-based and dependent on
performance reviews done by Lewis. There is additional evidence of an ongoing
feud between Lewis and Wood, and that Lewis had refused to communicate with
Wood and removed some of his duties as a result of the feud. All of this indicates
that Lewis had influence or leverage over Wood’s decisionmaking. Id. Further,
the remarks would appear to meet the other requirements of direct evidence, as
set out above.4
       However, even if the remarks are only circumstantial evidence, the
McDonnell Douglas analysis would still weigh against DM. As stated previously,
under McDonnell Douglas, a plaintiff relying on circumstantial evidence must
establish a prima facie case of discrimination. Moss, 610 F.3d at 922.
       To establish a prima facie case of age discrimination, the EEOC must show
that (1) DM failed to hire Swafford; (2) he was qualified for the position; (3) he
was within the protected class (age 40 or over) at the time; and (4) a younger
person was hired. Jackson, 602 F.3d at 378. DM indeed failed to hire Swafford,
then 56, who was qualified for the position and instead hired Thomas, who was
more than 20 years younger. Thus, a prima facie case was established.5


       4
          DM asserts that the EEOC only argues on appeal that there was circumstantial or
indirect evidence and, thus, has now waived or abandoned any claim of direct evidence. We
disagree. While the EEOC did not strongly argue a claim of direct evidence, it did assert both
in its brief. However, even if the EEOC had abandoned a claim of direct evidence, the outcome
of the case would not be affected because we find that it would prevail on a circumstantial
evidence claim.
       5
         The district court found that DM “does not assert, and in fact assumes, that the EEOC
has presented a prima facie case of discrimination. Therefore, the Court will proceed to
determine whether [DM] has offered a legitimate, nondiscriminatory reason for its decision
to hire Thomas and not Swafford and whether the EEOC has shown that reason to be mere
pretext for discrimination.” On appeal, it also does not appear that DM is asserting that the
EEOC has failed to make a prima facie case under the ADEA, although the brief is not very
clear. DM does, however, mention a summary judgment claim that the EEOC failed to make

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      The burden then shifts to DM to provide a legitimate, nondiscriminatory
reason for the action. Moss, 610 F.3d at 922. DM asserts that Swafford was not
hired because Thomas was more qualified. As this would be a legitimate,
nondiscriminatory reason for the action, the EEOC must then rebut the
purported reason to show that it is merely pretextual. That is, the EEOC may
attempt to establish that Swafford was the victim of intentional discrimination
“by showing that the employer’s proffered explanation is unworthy of credence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S.
248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “Moreover, although the
presumption of discrimination ‘drops out of the picture’ once the defendant meets
its burden of production, the trier of fact may still consider the evidence
establishing the plaintiff’s prima facie case ‘and inferences properly drawn
therefrom . . .      on the issue of whether the defendant’s explanation is
pretextual.’” Reeves, 530 U.S. at 143.
      Here, the district court said that, because DM satisfied its burden of
producing a legitimate, nondiscriminatory reason for its decision, the “burden
shifts to the EEOC to show that the reasons given are false or that Swafford was
‘clearly better qualified’ for the scheduler position.” The district court then
addressed the EEOC’s assertions that the evidence raises a question of fact
about whether Lewis influenced Wood’s decision, the statements about Thomas’
qualifications and about Swafford’s previous performance, and the statements
by Lewis and other DM management about the “aging workforce.”
Influence
      The district court found that Lewis’ statements had no influence on Wood
because Hojem had assured Wood that there would be no retaliation from Lewis.



a prima facie case under the ADA.

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The district court also dismissed evidence in Nelson’s deposition that Wood had
already decided to hire Swafford on February 7 as an “imprecise recollection”
and because interviews did not occur until February 27.
      While there is evidence that Hojem spoke to Lewis and Wood regarding
retaliation, the timing of these discussions does not alleviate a question of fact
regarding influence. Lewis’ remarks and resulting threats of retaliation against
Wood lasted several days, at least from February 7 until the 11th. The record
is not clear as to when Lewis decided not to pursue the CAM. However, the
record is clear that Wood had indicated his desire to hire Swafford repeatedly to
numerous people prior to receiving the CAM from Lewis on February 11.
      In fact, the whole incident at the meeting wherein Lewis accused Wood of
insubordination was because Lewis believed Wood “was just wanting to, say,
buck the system and try to get – try to get [Swafford] hired without going
through the application process.” Lewis said that Wood “had said words to the
effect of, ‘You know, I think Brenda, you know, we’ve had that slot empty for a
long time.   What about, you know, hiring Mike Swafford?’”            After Lewis
disagreed with Wood’s desire to hire Swafford, Wood repeatedly informed Lewis
that he was violating federal law because Lewis was discriminating based on age
and disability.
      Also, the record indicates that Hojem did not make any assurance to Wood
regarding retaliation until weeks later – after Wood had already decided to
interview Thomas, who he had previously not identified as a qualified applicant,
and after the CAM had “died a natural death” because Wood had agreed to do
the hiring. All of this corroborates the portion of Nelson’s deposition referenced
by the district court.
      For these reasons, the district court’s finding that there was no issue of
fact about whether Lewis influenced Wood is unsupported by the record.
Qualifications

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                                  No. 12-40424

      With regard to qualifications, the district court found that “Swafford’s
qualifications were not ‘of such a weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen [Thomas] over
[Swafford] for the job in question.’” (Quoting Celestine v. Petroleos de Venezuella
SA, 266 F.3d 343, 356-57 (5th Cir. 2001) (marks original). We note that this
high standard applies in cases where the plaintiff seeks to show that he was
“clearly better qualified” than the person selected for the position. See Celestine,
266 F.3d at 356; Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d
408, 412 (5th Cir. 2007). As we have noted, “[w]hile a showing that a plaintiff
is ‘clearly better qualified’ is one way of demonstrating that the employer’s
explanation is a pretext, it is not the only way.” Burrell, 482 F.3d at 412, n.11.
Pretext may also be shown by “any evidence which demonstrat[es] the
employer’s proffered reason is false” or “unworthy of credence.” Id. at 412 &
n.11. “An explanation is false or unworthy of credence if it is not the real reason
for the adverse employment action.” Laxton, 333 F.3d at 578. “Merely disputing
[the employer’s] assessment of [the employee’s] performance will not create an
issue of fact.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.
2002). Rather, the question is whether that assessment, “even if incorrect, was
the real reason for” the action. Id.
      As the district court states, Wood completed the evaluation form to hire
Thomas. That form provided for scores between zero and two in the categories
of education, experience, technical skills, communication skills, interpersonal
skills, and customer services skills. A zero indicated the candidate did not meet
the minimum requirements, a one indicated that the candidate met the
minimum requirements, and a two indicated that the candidate met both the
minimum and preferred requirements. Wood said that he and DuBois, in a
collaborative effort, compiled the scores. And that DuBois had her own sheet.



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                                 No. 12-40424

But DuBois contradicted that claim, saying that she had never seen the
candidate evaluation form and did not assist in its preparation.
      Swafford and Thomas both scored a two on all categories except education,
where Thomas scored a two and Swafford scored a one. The position does not
require a college degree. However, Swafford had an associate’s degree, whereas
Thomas’ resume indicated he had a bachelor’s degree. In reality, Thomas had
no college degree. While the district court cites cases for the propositions that
the employer has a right to rely on the representations made by an applicant
and has no duty to verify information, it is worth noting that Thomas was not
even asked about his education during the interview. The district court also
noted that Wood considered Thomas’ military training as part of his education
ranking, and that Wood ranked the third applicant a two based on his non-
college training. This does not support ranking Swafford lower as he also had
military training, spending six years in the Texas National Guard before being
honorably discharged.
      Moreover, the record establishes that only Swafford had experience with
the SAP program used by DM.         Further, although Swafford worked as a
planner/scheduler at DM for only two years, the record indicates that he used
the SAP program during his entire employment at DM from 1998-2003.
Swafford also worked in area refineries as an apprentice insulator and a
pipefitter/fabricator from 1973 until 1992.     Thomas had been a logistical
coordinator in the military, which included planning, but had no experience
working with the specific system used by DM. Thomas also testified in his
deposition that, during his interview, he did not recall anyone asking him about
the differences between the program he had used in the Army and the one used
by DM. The record also establishes that the program used by DM was unique,
which was a reason the position took so long to learn, and that using the
program was an essential duty of the scheduler position. Additionally, Lewis

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                                  No. 12-40424

acknowledged that DM had never hired anyone who had gained experience with
the SAP system anywhere else, further indicating the uniqueness of the
program.
      Swafford’s performance as a planner/scheduler was above expectations and
described as excellent and meticulous. Swafford had an excellent attendance
record. Lewis acknowledged that Swafford trained his replacement when he
transferred and that he had no performance issues.            Further, as stated
previously, Swafford’s performance and ability was at such a high level that
Lewis had sent an email on February 4 saying he may need to hire him
temporarily to help out until someone was hired.
      Accordingly, the district court’s finding that there was no issue of fact
regarding the statements about Thomas’ qualifications and Swafford’s previous
performance is unsupported by the record.
Aging Workforce
      The district court appears to dispute that any statements regarding DM’s
aging workforce were actually made, but then found that, “[a]ssuming all of
these statements were made, they do not raise an issue of pretext because they
do not ‘refer in any way to [Swafford’s] age, let alone the age of any applicant or
employee, or the employment decisions of which he complains.’” The district
court then said that many of Lewis’ statements about the “aging workforce” were
directly related to the hiring of a new planner/scheduler and that “Lewis was
concerned with being able to replace people who retired with others who would
work in the company for a long period of time.” The district court then found
that, “because he did not have any influence over the hiring decision, as the
Court has already found, his statements cannot raise a genuine issue of pretext.”
We disagree.
      Finally, the court found:



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                                  No. 12-40424

             None of the EEOC’s proffered circumstantial evidence raises
      a fact issue but-for Swafford’s age, [DM] would have hired him; nor
      does the evidence demonstrate that Swafford’s association with a
      person with a disability was either a but-for cause of [DM’s] decision
      or a motivating factor in its decision.
             The Court concludes that the EEOC has not presented
      sufficient direct or circumstantial evidence to overcome summary
      judgment. Thus, the EEOC has not met its burden under the but-
      for causation standard of the ADEA, or either the but-for or mixed
      motive standard of the ADA, whichever standard is applicable.

      Hojem admitted that DM site directors had met to discuss ways to deal
with its “aging workforce” problem, such as by creating a knowledge-retention
system to capture “knowledge association with a particular job that we could
transfer to the new person.” Hojem also admitted that Lewis told her that he
said during the February 7 meeting “that he did not want to hire Mr. Swafford
because of his age and the fact that his wife was ill, and it would cause him to
miss work.” Hojem said she told him that his action was highly inappropriate
and against the rules and regulations. However, she neither addressed the issue
in writing nor responded to Lewis’ various emails wherein he made statements
similar to what he had said during the meeting. Rather, she said she never
received the various emails. However, Heusel, who was copied on some of the
emails to Hojem, replied to at least one, thanked Lewis for keeping her in the
loop, and told him to “[p]lease let me know if/how we can support you.”
      Lewis acknowledged the trustworthiness of other employees who made
statements regarding his remarks and the events that occurred.           He also
admitted that he had made certain remarks at the meeting, but then attempted
to distinguish between “age” and “old,” saying: “I said, ‘Look, Mike is old.’
That’s what I said. The intent was absolutely nothing to do with don’t hire him,
because of age. I never mentioned age.” Lewis did not remember saying
anything about Swafford’s wife having cancer, but again acknowledged the


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                                  No. 12-40424

trustworthiness of other employees who gave statements to the contrary. Lewis,
who denied knowing that DuBois wanted to hire Swafford, said that he went to
explain to DuBois and Houston what had happened at the meeting because “I
knew they wanted him in there.”
      The record also indicates that Hojem had approved the travel for Thomas’
call back interview by 7:10 a.m. on February 27, 2008, which was before any of
the interviews had been done. Also, as stated previously, the call back interview
for Thomas was merely a formality, as Wood made the decision to hire him on
March 11, 2008, which was prior to Thomas traveling from Virginia at DM’s
expense for the face-to-face interview. Wood testified that, despite the fact that
a “phone interview is quite hard to do” because “you can’t reach the personality
or any of that type stuff,” here “[t]he scoring was already done before [Thomas]
came. All I wanted to do is verify what he was telling me in the interview
process and get to meet him.”
      For these reasons, the district court’s finding that there was no issue of
fact about whether the aging workforce statements were pretextual is not
supported by the record.
      Because this case is here on summary judgment review, this Court views
the evidence in the light most favorable to the EEOC, taking the record evidence
and all reasonable inferences therefrom in its favor. According to the EEOC’s
version of the facts, which are supported by the record, Lewis’ remarks were not
an isolated incident. They continued for a number of days and were offered both
verbally and in emails. The remarks were never offered in conjunction with any
other potential reasons for not hiring Swafford. Lewis never said he was
opposed to Swafford because there was a more qualified candidate. Instead,
Lewis only offered Swafford’s age and wife’s illness as a basis for not hiring him.
Further, Swafford was rejected by Lewis before Thomas ever applied. Lewis’
supervisor, Hojem, and HR Director Heusel were copied on the exchanges

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                                 No. 12-40424

regarding Lewis’ opposition to Swafford because of his age and the fact that his
wife had cancer. Lewis further had sent earlier emails to Hojem indicating that
he had “put the nix” on Wood’s desire to hire Swafford permanently because of
his age and his wife’s health problems. Additionally, the entire matter was
brought to the attention of DM CEO Bob McGough and General Counsel John
Poindexter. However, there is no indication that they ever took any action.
Also, Wood repeatedly indicated his desire to hire Swafford until he was given
the CAM by Lewis.
      Based on all of that, the evidence is such that a reasonable jury could
return a verdict for the EEOC, finding that but for Swafford’s age and disabled
wife, DM would have hired him. Thus, a genuine issue of material fact exists
and the district court erred in granting summary judgment for DM on the claims
of discrimination under the ADEA and the ADA. Therefore, we reverse.


III. Whether the district court erred in granting summary judgment
on the Commission’s request for liquidated and/or punitive damages.

      The district court merely found that, because the “EEOC has not presented
sufficient direct or circumstantial evidence of intentional discrimination to
overcome summary judgment, the Court further concludes that summary
judgment is proper on the EEOC’s claims for liquidated and punitive damages.”
      Liquidated damages are available in cases of willful violations of the
ADEA. 29 U.S.C. § 626(b). A violation is willful if the employer knew or showed
reckless disregard of whether its conduct was prohibited by statute. Hazen
Paper Co. v. Biggins, 507 U.S. 604, 617, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993).
      Under the ADA, a complaining party may recover punitive damages if it
proves that the defendant engaged in “discriminatory practices with malice or
with reckless indifference to the federally protected rights of an aggrieved
individual.” 42 U.S.C. § 1981a(b)(1).

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                                 No. 12-40424

      Here, both Lewis and Wood repeatedly indicated, as set out previously
herein, that they knew discriminating against Swafford because of his age or his
wife’s disability was illegal.   Because the EEOC has presented sufficient
evidence to overcome summary judgment, we likewise reverse the district court’s
grant of summary judgment on the claims for liquidated and punitive damages.
                                 CONCLUSION
      For the reasons set out herein, the district court erred in granting
summary judgment to DM on the claims for discrimination under the ADEA and
the ADA, as well as the claims for liquidated and punitive damages. Therefore,
we REVERSE.




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