     Case: 09-10556     Document: 00511049539          Page: 1    Date Filed: 03/12/2010




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

                                                  FILED
                                                                           March 12, 2010

                                     No. 09-10556                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JEFFREY KRETCHMER

                                                   Plaintiff - Appellant
v.

EVEDEN INC

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 07-CV-1068-D


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jeffrey Kretchmer appeals the district court’s grant of summary judgment
in favor of Eveden, Inc. (“Eveden”) dismissing his claims of religious and sex
discrimination under Title VII of the Civil Rights Act of 1964, age discrimination
under the Age Discrimination in Employment Act (“ADEA”), and violation of the
Fair Credit Reporting Act (“FCRA”). Kretchmer also appeals the district court’s




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10556    Document: 00511049539       Page: 2   Date Filed: 03/12/2010

                                   No. 09-10556

denial of his Rule 59(e) motion. For the foregoing reasons, we AFFIRM on all grounds.
      Kretchmer, a practicing Conservative Jew, was first hired as an account
executive for Revelation Bra Company, a women’s lingerie and swimwear
company, and continued his employment with Eveden after it acquired
Revelation. Kretchmer’s duties as account executive included representing and
selling Eveden products in his assigned sales territory. After approximately
eight years working as an account executive, four of which were for Eveden,
Eveden informed Kretchmer that he was being terminated. Kretchmer was 57
years old at the time of his termination. Leslie Kimball, Kretchmer’s supervisor,
and Jim West, Eveden’s director of marketing and support, told Kretchmer he
was being let go because Eveden had restructured its sales territory, and the two
major accounts in Kretchmer’s new territory, J.C. Penney and Neiman Marcus,
had made comments to Eveden management in the past that they did not want
to work with Kretchmer. Kimball and West also told Kretchmer that he had
failed to travel sufficiently within his previously assigned territory.
      Kretchmer filed a discrimination complaint with the Equal Employment
Opportunity Commission (“EEOC”), which issued a right-to-sue letter.
Kretchmer subsequently filed suit in the district court, alleging that Eveden had
terminated him based on his age, religion, and sex, and that Eveden had violated
the FCRA by failing to report to Kretchmer the statements that J.C. Penney and
Neiman Marcus allegedly made about him and on which Eveden relied in
deciding to terminate him.       Eveden moved for summary judgment on all
grounds, and the district court granted Eveden’s motion. Kretchmer filed a F ED.
R. C IV. P. 59(e) motion for rehearing, which the district court denied. Kretchmer
now appeals both of the district court’s decisions.
      We review a district court’s grant of summary judgment de novo.
Mackinchick v. P.B. Power, 398 F.3d 345, 349 (5th Cir. 2005). In reviewing a
motion for summary judgment, we must determine whether the evidence

                                         2
   Case: 09-10556    Document: 00511049539       Page: 3   Date Filed: 03/12/2010

                                   No. 09-10556

presented shows no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c); Berquist
v. Wash. Mut. Bank, 500 F.3d 344, 348–49 (5th Cir. 2007).
      Title VII makes it unlawful for an employee 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 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
Similarly, the ADEA makes it unlawful for an employer to discharge or
discriminate against an individual on the basis of age. 29 U.S.C. § 623(a)(1).
However, prior to bringing any employment discrimination claims in federal
court, Kretchmer must have exhausted his claims administratively before the
EEOC. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002).
      In his official charge form to the EEOC, Kretchmer only checked off the
boxes for “age” and “religion” as bases of discrimination; he made no mention of
sex discrimination. While mere failure to check a box does not necessarily
indicate a failure to exhaust, see Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir.
2006), a plaintiff can only pursue a lawsuit that can “reasonably be expected to
grow out of the charge of discrimination,” Young v. City of Houston, 906 F.2d
177, 179 (5th Cir. 1990). The factual allegations in Kretchmer’s EEOC’s charge
are directed towards claims of religious and age discrimination, not sex
discrimination. Merely stating that he “was ultimately replaced by a woman in
her 30’s” is insufficient to place Eveden on notice that Kretchmer would be
pursuing a sex discrimination claim, particularly when it would seem the
statement was made in support of Kretchmer’s age discrimination claim by
indicating the age of the woman in question. Accordingly, Kretchmer has not
exhausted his sex discrimination claim, and the district court did not err in
dismissing it.



                                         3
   Case: 09-10556       Document: 00511049539         Page: 4     Date Filed: 03/12/2010

                                       No. 09-10556

       As Kretchmer did not offer any direct evidence of religious or age
discrimination, we evaluate his claims under the McDonnell Douglas burden-
shifting framework. Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005).
Eveden does not dispute on appeal that Kretchmer established a prima facie
case for both charges of discrimination; namely, that he was a member of a
protected group, was qualified for the position held, was discharged from the
position, and was replaced by a person outside the protected group. Id.
       The    burden     then    shifts   to   Eveden     to    articulate   a   legitimate,
nondiscriminatory reason for terminating Kretchmer’s employment. Bauer v.
Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). This burden is one only of
production, not persuasion, involving no credibility assessments. Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Eveden presents four
reasons for terminating Kretchmer: (1) he failed to adequately travel throughout
his territory to visit customers and prospective customers; (2) he lacked the
requisite aggressiveness in his job performance; (3) he failed to satisfactorily
analyze the business of his major account; and (4) Eveden was realigning the
sales territory and recognized that Kretchmer would not be an effective sales
manager for two major accounts. These reasons for terminating Kretchmer are
legitimate and nondiscriminatory, in that none of them focuses on either
Kretchmer’s religion or age as a basis for his dismissal.
       Once Eveden has met its burden of production, the burden shifts back to
Kretchmer to show that Eveden’s reasons are not true, but are merely pretext
for discrimination.1 Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219–20 (5th
Cir. 2001).     Kretchmer “must put forward evidence rebutting each of the



       1
        Kretchmer states in his brief that he is proceeding under the pretext form of analysis
rather than the “mixed motives” form of analysis, which would require Kretchmer to concede
that, while Eveden’s reasons may be true, they are only some of the reasons for its conduct.
See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94–95 (2003).

                                               4
   Case: 09-10556   Document: 00511049539      Page: 5   Date Filed: 03/12/2010

                                  No. 09-10556

nondiscriminatory reasons” that Eveden articulates. Id. Kretchmer has not met
this burden. On appeal, Kretchmer argues primarily that Eveden’s alleged
realignment of its sales territory never actually happened. However, Kretchmer
points only to the fact that Eveden produced no documents referencing the
realignment plan or indicating that a Dallas Eveden sales representative
received any J.C. Penney orders. This evidence is insufficient to show that the
territory realignment did not occur, particularly in light of Kimball’s testimony
that Eveden had been talking about reorganizing its sales territory since her
arrival at the company, nearly a year prior to Kretchmer’s termination, and that
Kretchmer’s termination coincided with the implementation of the territory
realignment.
      Kretchmer also contends that any negative statements about him from the
two major accounts in Kretchmer’s newly assigned sales territory, J.C. Penney
and Neiman Marcus, were made by companies with no personal knowledge of
him. However, the burden that Eveden bears is merely one of production, not
persuasion.    Kretchmer bears the burden of rebutting Eveden’s proffered
legitimate, nondiscriminatory reasons for his termination, and Kretchmer has
not shown that any comments about his ineffectiveness as an Eveden sales
manager for major accounts were mere pretext.
      Kretchmer points to Decorte v. Jordan, 497 F.3d 433 (5th Cir. 2007) as
support for his argument that when a defendant has fired all of the protected
class, the jury may infer that any of the defendant’s reasons are mere pretexts.
However, in Decorte, the plaintiff presented additional evidence to prove pretext,
such as inconsistent testimony of the employer’s representatives regarding the
reasons for the employment decisions. Id. at 439. The instant situation is not
analogous, as Kretchmer has presented no additional evidence that rebuts
Eveden’s nondiscriminatory reasons for firing him.



                                        5
   Case: 09-10556    Document: 00511049539       Page: 6   Date Filed: 03/12/2010

                                   No. 09-10556

      Kretchmer has failed to rebut one of the legitimate, nondiscriminatory
reasons proffered by Eveden, namely, that Eveden was realigning the sales
territory and recognized that Kretchmer would not be an effective sales manager
for two major accounts. We need not address his arguments to rebut the other
reasons Eveden presented. See Wallace, 271 F.3d at 220 (“The plaintiff must put
forward evidence rebutting each of the nondiscriminatory reasons the employer
articulates.”). Thus, the district court did not err in dismissing Kretchmer’s
claims of age and religious discrimination against Eveden.
      Kretchmer also appeals the district court’s dismissal of his FCRA claim.
Kretchmer argues that Eveden violated the FCRA by failing to provide him with
a written report of the comments made by J.C. Penney and Neiman Marcus
concerning Kretchmer that allegedly contributed to Eveden’s decision to fire him.
The FCRA was enacted to combat abuses in the credit reporting industry by
protecting individuals from inaccurate or arbitrary information in a consumer
report. St. Paul Guardian Ins. Co. v. Johnson, 884 F.2d 881, 883 (5th Cir. 1989).
A consumer reporting agency is defined by the statute as “any person which . . .
regularly engages in whole or in part in the practice of assembling or evaluating
consumer credit information or other information on consumers for the purpose
of furnishing consumer reports to third parties . . . .” 15 U.S.C. § 1681a(f). Retail
stores, like J.C. Penney and Neiman Marcus, that “merely furnish information
to consumer reporting agencies based on their experience with consumers are
not consumer reporting agencies within the meaning of the FCRA.” DiGianni
v. Stern’s, 26 F.3d 346, 348 (2nd Cir. 1994). Thus, the district court correctly
found that Kretchmer’s FCRA claim fails as a matter of law.
      Finally, Kretchmer contends that the district court erred in denying his
F ED. R. C IV. P. 59(e) motion for rehearing. Kretchmer lists this argument as one
of the “issues presented for review” but does not make any argument specifically
tailored to this claim. Consequently, Kretchmer has waived his arguments on

                                         6
  Case: 09-10556    Document: 00511049539     Page: 7   Date Filed: 03/12/2010

                                 No. 09-10556

appeal regarding the dismissal of his Rule 59(e) motion. See Goodman v. Harris
County, 571 F.3d 388, 399 (5th Cir. 2009) (issues inadequately briefed on appeal
are waived).
      AFFIRMED.




                                       7
