     Case: 14-10258      Document: 00512890389         Page: 1    Date Filed: 01/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10258                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          January 6, 2015
HARVEY HOFFMAN,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

BAYLOR HEALTH CARE SYSTEM, doing business as Baylor Medical
Center at Waxahachie,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-cv-3781


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Appellant Harvey Hoffman (“Hoffman”) appeals the district court’s order
granting summary judgment on his disability- and age-discrimination claims
in favor of Appellee Baylor Health Care System, d/b/a Baylor Medical Center
at Waxahachie (“Baylor”). For the reasons below, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 14-10258    Document: 00512890389      Page: 2   Date Filed: 01/06/2015



                                  No. 14-10258
I.     BACKGROUND
      Baylor employed Hoffman as a Magnetic Resonance Imaging (“MRI”)
Technician from September of 2001 until his termination in November of 2011.
At the time of his termination and of the events described below, Hoffman was
70 years of age, with a slight tremor in his right hand. The facts are largely
undisputed, and differ only as to the protocols governing Baylor’s MRI
procedures.
      According to Baylor’s written job description of the position, an MRI
Technician’s duties included: “Review[ing] patient’s chart or orders to verify
the examination to be performed. Evaluat[ing] patient’s history and symptoms
for the procedures [sic] clinical criteria.” As part of its Magnetic Resonance
Department Safety Policies and Procedures, Baylor instituted a “Department
Specific Policy” for MRI screening of patients, designed to detect the presence
of “contraindicators” in patients which preclude performance of the MRI
procedure. In order to “determine any questionable issue related to the [two-
page Baylor] MR patient screening form” (“MRI Screening Form”), the policy
requires the MRI Technician to “discuss with the patient or family member the
possibility of any foreign electronic, mechanical or metallic objects within the
patient.” Additionally, the policy provides that, if a patient is
      “incoherent or unable to communicate with the technologist, a
      responsible person (i.e., family member or care giver) familiar with
      the patient’s medical history will need to provide the necessary
      clinical information to the satisfaction of the technologist as to
      prevent an unsafe interaction of foreign objects with the magnetic
      field and/or RF signal.”

The policy prohibits MRI procedures when a patient has not been cleared of
unsafe objects.
      For his part, Hoffman instead asserts that MRI procedures were
alternatively governed by “established practice” involving a series of multi-

                                        2
    Case: 14-10258         Document: 00512890389         Page: 3    Date Filed: 01/06/2015



                                       No. 14-10258
party protocols, stating in his declaration that he “noted a standardized and
routine procedure” for performing an MRI procedure by which the MRI
Technician and nursing staff would obtain, share, and review relevant
information through discussion and documentation. Hoffman provides no
other evidence of this procedure besides his declaration and, although we have
previously held that “self-serving allegations” in an affidavit, unsupported by
documentation or testimony of a third party, “are not the type of significant
probative evidence required to defeat summary judgment,” 1 we need not reach
that consideration here. This is because, even assuming the truth of Hoffman’s
assertions regarding procedures, they do not create a fact issue since Baylor
was not obligated, for disciplinary purposes, to adopt Hoffman’s subjective,
post-hoc understanding of the process, especially as it conflicted with Baylor’s
own safety protocols and job description, and Baylor’s failure to do so, standing
alone, is not probative of discriminatory intent.
      On October 28, 2011, an MRI procedure precipitated the adverse
employment action upon which Hoffman bases his claims. On that date, an
emergency-room patient (“Patient X”) was admitted without the ability to
communicate with hospital staff, and a physician ordered Patient X to undergo
an MRI. Staff nurse Danny Stokes (“Stokes”) filled out the first page of the
MRI Screening Form and, based on information in the patient’s chart, noted
that she had a pacemaker. Due to a shift change, Stokes passed along the
incomplete form, as well as the information about Patient X’s pacemaker, to
day nurse Paula Zavala (“Zavala”), who completed the form’s second page,
again noting the presence of the pacemaker. Additionally, Zavala noted the
presence of a pacemaker on the communication board in Patient X’s room.
Later, Hoffman called the unit clerk Debra Watkins (“Watkins”), who informed


      1   United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (quotations omitted).
                                               3
    Case: 14-10258    Document: 00512890389     Page: 4   Date Filed: 01/06/2015



                                 No. 14-10258
him that Patient X had been cleared for an MRI. At that point, Hoffman and a
radiology file room clerk proceeded to Patient X’s room and there spoke with
Zavala, who did not verbally note Patient X’s pacemaker.
      Hoffman and the radiology clerk then transported Patient X, along with
her chart, to the MRI examination suite. Fifteen to thirty minutes later, Zavala
telephoned Patient X’s daughter regarding medication, and explained that
Patient X would be undergoing an MRI. The daughter advised that Patient X
should not undergo an MRI procedure due to her pacemaker, and Zavala
immediately called Hoffman to relay the information. At that point, however,
the MRI procedure had already been performed, fortunately without any
adverse consequences to Patient X.
      Ultimately, however, the procedure had adverse consequences for
Hoffman’s employment. Following the incident’s reporting to Ronny Rose
(“Rose”), Hoffman’s supervisor in the Magnetic Resonance Department,
Human Resources Manager Marcos Ramirez (“Ramirez”) performed an
investigation that resulted in two pertinent findings. First, Ramirez found that
Hoffman, as the MRI Technician, was responsible for checking the MRI
Screening Form for the presence of contraindicators. Second, Hoffman’s
personnel file included two prior incidents and attendant warnings to Hoffman
for failure to follow MRI protocols. The first incident, which occurred on April
21, 2008, involved Hoffman performing an MRI procedure on a patient with a
history of renal problems, in response to which Hoffman was warned to
“[r]eview contrast form for contraindications.” In the second incident, which
occurred on April 6, 2011, Hoffman performed an MRI procedure on a person
with a hearing aid, another contraindication; this event was followed by a
general admonishment by Rose that no MRI procedures should be performed
where the screening form reflects the presence of contraindicators, specifically


                                       4
      Case: 14-10258      Document: 00512890389          Page: 5     Date Filed: 01/06/2015



                                       No. 14-10258
hearing devices. On November 3, 2011, Rose and Ramirez terminated
Hoffman’s employment with Baylor.
       In November of 2012, Hoffman initiated this action, asserting that his
termination was the result of discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”) 2 and the Americans with
Disabilities Act (“ADA”). 3 The district court granted Baylor’s motion for
summary judgment on both claims, and Hoffman appealed.
II.     STANDARD OF REVIEW
       We review a grant of summary judgment de novo and apply the same
standards as the district court. 4 “A grant of summary judgment is proper when
there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law.” 5 In cases such as this, where employment
discrimination claims are based on circumstantial evidence, we apply the
burden-shifting framework established in McDonnell Douglas Corp. v. Green. 6
Under McDonnell Douglas, the analysis proceeds through three, burden-
shifting steps, whereby the plaintiff must first make a prima facie showing of
his claims, upon satisfaction of which “the employer must articulate a
legitimate, non-discriminatory reason for the adverse employment action.” 7
Then, if the employer satisfies its burden, the employee can yet prevail by
presenting evidence that the employer’s proffered reason is merely a pretext
for discrimination. 8 Finally, if the employee satisfies the third-step showing,
the employer may only prevail by proving it would have taken the adverse



       2 29 U.S.C. § 623(a)(1) (prohibiting employment discrimination due to age).
       3 42 U.S.C. § 12112 (prohibiting employment discrimination due to disability).
       4 See Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005) (citing Machinchick

v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).
       5 Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 257 (5th Cir. 2009).
       6 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
       7 Richardson v. Monitronics. Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).
       8 Id.

                                              5
       Case: 14-10258       Document: 00512890389           Page: 6      Date Filed: 01/06/2015



                                         No. 14-10258
employment action regardless of the discriminatory motivation; this showing
“is effectively that of proving an affirmative defense.” 9
III.     ANALYSIS
        As before the district court, it is undisputed on appeal that Hoffman
satisfied the first three prima facie elements of each of his claims. To support
his prima facie burden on his ADEA claim, Hoffman must show: (1) “[he] was
discharged”; (2) “qualified for the position”; (3) “within the protected age group
at the time of the discharge”; and (4) “either replaced by someone younger,
replaced by someone outside the protected class, or otherwise discharged
because of [his] age.” 10 Regarding his ADA claim, Hoffman must make the
prima facie showing that he “(1) suffers from a disability; (2) was qualified for
the job; (3) was subject to an adverse employment action, and (4) was replaced
by a non-disabled person or treated less favorably than non-disabled
employees.” 11
        Notwithstanding the different degree of proof required for showing
causation under the ADEA and ADA, 12 claims under both statutes allow a
showing of causation by disparate treatment, that is, by comparison with
employees outside the protected class. 13 In order for the disparate treatment
to be probative of discriminatory animus, however, the plaintiff must present



        9Id. (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).
        10Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid v.
Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)).
       11 Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999).
       12 The ADEA does not authorize a mixed-motives claim of age discrimination, Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009), such that a plaintiff-employee must show
that age was the but-for cause of the alleged age discrimination. Reed v. Neopost USA, Inc.,
701 F.3d 434, 440 (5th Cir. 2012). In contrast, “[t]he proper causation standard under the
ADA is a ‘motivating factor’ test . . . . [i.e.,] ‘discrimination need not be the sole reason for the
adverse employment decision.’” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008)
(quoting Soledad v. U. S. Dep’t of Treasury, 304 F.3d 500, 503 (5th Cir. 2002)).
       13 See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (ADA); Berquist v.

Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (ADEA).
                                                 6
     Case: 14-10258         Document: 00512890389          Page: 7     Date Filed: 01/06/2015



                                         No. 14-10258
comparator employees of sufficient similitude. 14 As he does on appeal, Hoffman
relied solely on such comparator evidence of disparate treatment to satisfy both
his prima facie and pretext showings at the summary-judgment stage.
Specifically, though Hoffman concedes on appeal that he “clearly had
culpability in the breakdown of the MRI process—perhaps even the most
culpability,” Hoffman asserts he was treated differently than Zavala and
Watkins, both of whom Hoffman asserts were also culpable for the MRI
incident. At the time of Hoffman’s termination, Watkins was 54 or 55 years old
and Zavala was 49 years old, and neither individual had a history of
disabilities. Additionally, neither individual was disciplined as a result of the
Patient-X incident. Nevertheless, the district court found that Hoffman had
presented comparators that were too dissimilar and, as a result, had failed to
make his prima facie and pretext showings as to both claims.
       Centering on the evaluation of his evidence of disparate treatment,
Hoffman’s challenge on appeal is two-fold. First, Hoffman asserts that the
standard by which we evaluate comparators is inconsistent with the Supreme
Court’s direction, and that summary judgment was not supported under a
more lenient standard. Second, Hoffman argues that the district court did not
appropriately consider evidence about those comparators which he argues
supported his disparate-treatment argument. For the reasons below, neither
argument is meritorious.
       A. Comparator Standard
       When a plaintiff proffers similarly situated employees in support of an
employment discrimination claim, we require that the relevant employment




       14   See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000) (citations
omitted).
                                                 7
     Case: 14-10258       Document: 00512890389         Page: 8     Date Filed: 01/06/2015



                                       No. 14-10258
actions take place “under nearly identical circumstances.” 15 At the same time,
we have emphasized that “nearly identical is not synonymous with
identical.” 16
       Applied to the broader circumstances of a plaintiff’s employment
       and that of his proffered comparator, a requirement of complete or
       total identity rather than near identity would be essentially
       insurmountable, as it would only be in the rarest of circumstances
       that the situations of two employees would be totally identical. 17

       In practical effect, this standard renders employees not similarly
situated when, compared to the plaintiff, the employees have different work
responsibilities or different supervisors, or work in different company
divisions, or were subject to adverse employment actions too removed in time
or for violations too dissimilar in type. 18 Further, “[i]f the ‘difference between
the plaintiff’s conduct and that of those alleged to be similarly situated
accounts for the difference in treatment received from the employer,’ the
employees are not similarly situated for the purposes of an employment
discrimination analysis.” 19 Specifically regarding the disciplinary histories of
employees, we have expressly incorporated the guidance of the Supreme Court
in McDonald v. Santa Fe Trail Transportation Co.: “As the Supreme Court has
instructed, the similitude of employee violations may turn on the ‘comparable
seriousness’ of the offenses for which discipline was meted out and not




       15Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v.
Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir.1991)).
      16 Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (internal quotation

marks omitted).
      17 Lee, 574 F.3d at 260.
      18 See id.
      19 Id. at 260 (quoting Wallace v. Methodist Hosp. Sys, 271 F.3d 212, 221 (5th Cir. 2001)

(emphasis added)).
                                              8
     Case: 14-10258      Document: 00512890389        Page: 9    Date Filed: 01/06/2015



                                     No. 14-10258
necessarily on how a company codes an infraction under its rules and
regulations.” 20
       B. Discussion
      Hoffman asserts that this approach does not comport with that of the
Supreme Court or those of other circuit courts. Hoffman first asserts that our
standard is inconsistent with the Supreme Court’s evaluation, within the
McDonnell Douglas rubric, of whether employees are similarly situated.
Specifically, Hoffman challenges this Court’s incorporation of the phrase
“nearly identical” as not originating in Supreme Court jurisprudence. On that
basis, Hoffman further argues that we should adopt a more lenient standard
applied by a district court in Coveney v. U.S. Bank National Ass’n, by which
comparators must have “(1) shared the same supervisor, (2) [been] subject to
the same standards, and (3) engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them for it.” 21
      As an initial matter, “[i]t is well-established that one panel of our court
will not overturn another absent an intervening precedent by our court sitting
en banc or a Supreme Court precedent.” 22 Beyond that principle, Hoffman’s
legal argument is unpersuasive, elevating superficial, verbal distinctions to the
neglect of substantive, practical commonalities, a point that is illustrated by
the factual contours of this case.
      Zavala and Watkins are excessively dissimilar under our precedent,
which applies the standard enumerated by the Supreme Court, and even under
the less-demanding Coveney standard upon which Hoffman relies. The record



      20  Id. at 261 (emphasis added) (quoting McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 283 n.11 (1976)) (emphasis added).
       21 No. 1:07-CV-706, 2008 WL 4332515, at *8 (S.D. Ohio Sept. 17, 2008).
       22 FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir. 1993).

                                            9
    Case: 14-10258      Document: 00512890389       Page: 10    Date Filed: 01/06/2015



                                    No. 14-10258
reveals that Zavala and Watkins did not share the same supervisor as
Hoffman, a differentiation which is perhaps due to their working in entirely
different departments of the hospital. Under our precedent, Hoffman’s
proffered comparators are insufficient for this reason alone. 23 Moreover, since
Hoffman is the only person of the three who was part of the Magnetic
Resonance Department, he alone was subject to the “Department Specific
Policy” with which he did not comply. It is further undisputed that neither
Zavala nor Watkins occupied positions as MRI Technicians, and thus were not
subject to the requirements of Hoffman’s job description.
      Beyond the policy and job requirements, Hoffman has provided no
evidence that Zavala and Watkins were “subject to the same standards” as
Hoffman, a requirement of the more lenient standard. 24 Finally, as the only
person from whom compliance was required, only Hoffman had a history of
reprimands for his noncompliance; in contrast to Hoffman’s two previous
reprimands, Zavala and Watkins had no such history. In light of this
disciplinary-history distinction, Zavala and Watkins are not valid comparators
under the precedent of this Court and the Supreme Court, because any
shortcoming by Zavala and Watkins was not of “comparable seriousness” to
Hoffman’s third failure to abide the safety protocols. 25 This distinction further
vitiates the disparate-treatment comparison under the standard promoted by
Hoffman, since the lack of previous failures is certainly a “differentiating or
mitigating circumstance[] that would distinguish [Zavala’s and Watkin’s]
conduct or [Baylor]’s treatment of them for it.” 26



      23  See Lee, 574 F.3d at 259.
      24  Coveney, 2008 WL 4332515, at *8.
       25 Lee, 574 F.3d at 261 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273, 283 n.11 (1976)).
       26 Coveney, 2008 WL 4332515, at *8 (quoting Ecergovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 352 (6th Cir. 1998).
                                          10
   Case: 14-10258     Document: 00512890389     Page: 11    Date Filed: 01/06/2015



                                 No. 14-10258
      C. Conclusion
      In sum, because we conclude that Hoffman’s proffered comparators are
insufficiently similar to constitute probative evidence of discriminatory
animus, the district court did not err in its consideration thereof.
      AFFIRMED.




                                       11
