     Case: 12-50513      Document: 00512083083        Page: 1     Date Filed: 12/13/2012




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

                                                                          FILED
                                                                      December 13, 2012

                                    No. 12-50513                        Lyle W. Cayce
                                  Summary Calendar                           Clerk



STEVEN E. SWENSON,

                                                Plaintiff–Appellant
v.

SCHWAN’S CONSUMER BRANDS NORTH AMERICA, INC.,

                                                Defendant–Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-602


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
      Plaintiff–Appellant Steven E. Swenson (“Swenson”) appeals the district
court’s summary judgment for Defendant–Appellee Schwan’s Consumer Brands
North America, Inc. (“Schwan’s”) on Swenson’s age discrimination claim under
The Age Discrimination in Employment Act (ADEA) and The Texas Commission
on Human Rights Act (TCHRA). See 29 U.S.C. § 623(a)(1); Tex. Lab. Code Ann.
§ 21.051 (West 2006). For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                              I. BACKGROUND
      Swenson began working for Schwan’s in 1979 and, aside from a brief
period in 1988, worked there until his termination in 2010 at the age of 56.
During his time with Schwan’s, Swenson eventually became District Sales
Manager. In that role he reported to Regional Sales Manager William “Bill”
Dale. Schwan’s purportedly terminated Swenson for violating Schwan’s vacation
policy by awarding a subordinate, Charles Foster, vacation time for days on
which he was not scheduled to work. The parties dispute the facts surrounding
Foster’s work and vacation schedule and the propriety of Swenson’s actions.
When Dale recommended 56- year-old Swenson’s termination, Dale was 48 years
old. Swenson’s replacement was over the age of 40.
      Swenson filed suit in district court. After the district court entered
summary judgment, Swenson timely filed his Notice of Appeal, invoking our
jurisdiction pursuant to 28 U.S.C. § 1291.
                                II. STANDARD
      The review of a grant of a motion for summary judgment is de novo,
applying the same standard as the district court. Threadgill v. Prudential Sec.
Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998); Dameware Dev., L.L.C. v. Am. Gen.
Life Ins. Co., 688 F.3d 203, 206 (5th Cir. 2012). The moving party is entitled to
judgment as a matter of law if the evidence does not establish a genuine issue
of material fact. Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the
pleadings, the discovery, disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.       Keller Founds., Inc. v. Wausau
Underwriters Ins. Co., 626 F.3d 871, 873–74 (5th Cir. 2010).
      In employment discrimination cases, the plaintiff carries the initial burden
of establishing a prima facie case of discrimination. Patterson v. McLean Credit
Union, 491 U.S. 164, 186 (1989) (abrogated on other grounds as recognized by

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Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 594 (5th Cir. 1992).
To make a prima facie case of age discrimination, the plaintiff must show that
the plaintiff: (1) was discharged; (2) was qualified for the position; (3) was within
the protected age group at the time of the discharge; and (4) was replaced by
someone outside the protected class, replaced by someone younger, or otherwise
discharged because of age. See Purcell v. Seguin State Bank & Trust Co., 999
F.2d 950, 957 (5th Cir. 1993). If the plaintiff establishes these elements, the
burden shifts to the defendant to demonstrate that the discharge was based
upon legitimate and non-discriminatory reasons. See Patterson, 491 U.S. at 187.
Then, if the defendant can so demonstrate, the plaintiff must prove that the
reason articulated by the employer was merely a pretext for unlawful
discrimination. Id.
                                 III. ANALYSIS
      We affirm the district court’s finding that Swenson established a prima
facie case of age discrimination, which shifted the burden back to Schwan’s to
identify its legitimate, non-discriminatory reason for discharging Swenson.
Schwan’s provided evidence that it had discharged Swenson for his purported
failure to comply with Schwan’s vacation policy. Thus, the burden then shifted
back to Swenson to prove that Schwan’s stated reason is merely pretext, or that
Schwan’s had a mixed motive, with age discrimination being one of the
motivating factors. The district court held that Swenson could not create a fact
issue as to whether Schwan’s stated reason for discharging him was a pretext.
     On appeal, Swenson argues that the district court erred by discounting
Swenson’s evidence that Schwan’s stated reason was a pretext. Specifically,
Swenson raises five arguments: (1) the district court erred by not considering the
evidence as a whole; (2) the district court improperly analyzed evidence
indicating that Schwan’s stated reason for discharge was false; (3) the district
court erred by disregarding evidence of discriminatory animus; (4) the district

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court improperly disregarded evidence of disparate treatment of younger
employees; and (5) the district court erred by improperly disregarding Schwan’s
failure to give Swenson notice before firing him.
      None of Swenson’s five arguments is persuasive. First, we address his
argument that the district court erred by not considering the evidence as a
whole, as required. The district examined each of Swenson’s claims “in turn,”
which Swenson contends necessarily means the district court did not consider
the evidence as a whole, as though the two are mutually exclusive. Swenson’s
argument is without merit. The district court looked at each piece of evidence
in order to organize a multi-page opinion.           In fact, the district court
acknowledged that the evidence must be “taken as a whole.” Further, the
district court’s conclusion states that “Plaintiff has failed to produce evidence,
that, taken as a whole, creates a fact issue . . . .” The district court was clearly
aware that the evidence was to be considered as a whole, and we decline to view
the district court’s organized examination of the allegations as evidence that the
district court failed to consider the evidence “as a whole.”
      Swenson’s second argument on appeal is his strongest, although it is
ultimately not valid.     Swenson argues that Schwan’s stated reason for
discharging him is factually baseless and false. He argues that his actions in
granting Charles Foster’s vacation time were consistent with company policy
and thus, Schwan’s stated reason for firing him was false, suggesting that
discrimination must have been Schwan’s real motivation. Admittedly, the
parties dispute whether and to what extent Swenson violated Schwan’s vacation
policy. Swenson argues that demonstrating that Schwan’s was factually
incorrect in its determination that Swenson violated company policy is sufficient
to establish pretext. However, pretext is not established merely because the
company was mistaken in its belief, if honestly held.          Whether Schwan’s
conclusion was correct is irrelevant; if Schwan’s belief that Swenson violated

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company policy motivated its discharge decision, then it was not a pretext, and
Swenson cannot meet his evidentiary burden. See Waggoner v. City of Garland,
Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (“[The plaintiff] must, instead, produce
evidence demonstrating that [the defendant] did not in good faith believe the
allegations, but relied on them in a bad faith pretext to discriminate against him
on the basis of his age.”) Although Swenson presents evidence that tends to
demonstrate that his actions did not violate company policy, he presents no
evidence that Schwan’s beliefs, even if incorrect, were not honestly held. His
proffered evidence that he told Schwan’s of Foster’s vacation plans and that the
payroll department did not disapprove of his actions is insufficient.
      Third, Swenson argues that the district court did not consider his evidence
of discriminatory animus. Swenson raised several age-related comments made
by co-workers. The value of such stray remarks is “dependent upon the content
of the remarks and the speaker.” Russell v. McKinney Hosp. Venture, 235 F.3d
219, 225 (5th Cir. 2000). Age-related comments are to be taken into account if
the speaker is in a position to influence the employment decision. See id. at 229.
The comments at issue were made by a co-worker with no influence over the
discharge determination. Swenson argues that Dale’s failure to respond to the
age-related comments indicates his age-related bias. However, the law focuses
on the speaker’s authority, not that of those who decline to intervene.
      Fourth, Swenson argues that the district court disregarded evidence of
disparate treatment of younger employees. He provides the example of a
younger employee who was reprimanded but not terminated for sending
inappropriate e-mails to coworkers.         He also mentions a second younger
employee whose intoxicated comments at a company event became so
inappropriate that he was asked to leave the event. Dale did not reprimand or
terminate this employee. However, these examples are not probative. “[T]o
establish disparate treatment, a plaintiff must show that the employer gave

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preferential   treatment to another          employee under     ‘nearly identical’
circumstances; that is, that the misconduct for which the plaintiff was
discharged was nearly identical to that engaged in by other employees.” Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (internal
quotations and alternations omitted). The transgressions Swenson alleged other
employees committed were not similar, much less “nearly identical,” to his own
alleged vacation policy transgression. Swenson urges this court to instead adopt
a rule laid out in an Eighth Circuit case, which does away with the Fifth
Circuit’s “nearly identical” behavior requirement. See Lynn v. Deaconess Med.
Ctr.–W. Campus, 160 F.3d 484 (8th Cir. 1998). Lynn has never been cited by this
circuit, and we decline to stray from our well-settled precedent.
      Finally, Swenson argues that the district court erred by disregarding
Schwan’s failure to give Swenson a warning rather than discharging him upon
learning of his alleged policy violation. Swenson argues that his disputed action
did not merit immediate termination. As evidence that progressive discipline
rather than immediate discharge would have been appropriate, Swenson
provides an affidavit from a former Schwan’s employee who stated he thought
a lesser consequence should have been applied. However, Schwan’s Standards
of Conduct from its Company Employee Handbook specifically state that some
rule infractions can lead to immediate discharge. We decline to impose our
judgment concerning the proper consequence.
                              IV. CONCLUSION
      For the aforementioned reasons, the district court’s judgment is
AFFIRMED.




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