     Case: 15-11191      Document: 00513519545         Page: 1    Date Filed: 05/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-11191                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            May 24, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
KATHLEEN REYNOLDS,

                                                 Plaintiff–Appellant,

versus

SOVRAN ACQUISITIONS, L.P.,
 Doing Business as Uncle Bob’s Self Storage, Incorporated,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-1879




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11191
      Kathleen Reynolds sued Sovran Acquisitions, L.P. (“Sovran”), alleging
sex and age discrimination in violation of, respectively, Title VII (42 U.S.C.
§ 2000e-2(a)(1)) and the Age Discrimination in Employment Act of 1967
(“ADEA”) (29 U.S.C. § 623(a)(1)). Concluding that a reasonable jury could not
find for Reynolds on either claim, the district court granted summary judgment
to Sovran. 1 Reynolds appeals, claiming there are genuine disputes as to mate-
rial facts and that the district court erred in various evidentiary decisions.
We affirm.

                                                 I.
      Reynolds began working as a store manager for Sovran in February
2009. 2 She was terminated on August 8, 2013, at the age of 53. According to
Sovran, her position was first offered to another female employee, who turned
it down. 3     Reynolds’s eventual replacement was a 27-year-old man, Chris
Atkinson.

       At the time of her termination, Reynolds’s immediate supervisor, Kevin
Bagwell, told Reynolds that her discharge was for customer-service issues. The
main incident that Sovran points to was some time in 2013, when a disgruntled
customer became upset with Reynolds—according to Reynolds about some-
thing she would not do because it was against company policy. Reynolds main-
tains that the customer asked for the phone number to Store 91, stating that
he knew “Brian,” the store manager there, but Sovran says the customer asked




      1 Reynolds v. Sovran Acquisitions, L.P., No. 3:14-CV-1879-D, 2015 WL 6501552 (N.D.
Tex. Oct. 27, 2015).
      2 On a motion for summary judgment, the court views the evidence in the light most
favorable to the nonmoving party, here Reynolds, and draws all reasonable inferences in her
favor. See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 762 (5th Cir. 2001).
      3   Reynolds did not object to this fact in the district court, but she disputes it on appeal.
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                                 No. 15-11191
for the number of Reynolds’s supervisor, i.e., Bagwell. Instead, Reynolds gave
the customer her own cell phone number.

      When the customer realized what had happened, he returned to the store
and again asked for Store 91’s phone number (according to Reynolds) or
Sovran’s phone number or Bagwell’s phone number (according to Sovran). This
time Reynolds provided the customer with the number to Store 91, where Rey-
nolds’s associate manager, Atkinson, was working that day. Reynolds then
called Atkinson and told him that a customer would be calling. Reynolds says
that she asked Atkinson to back her up on store policy, whereas Sovran main-
tains that Reynolds asked Atkinson to pretend that he was her supervisor so
that she would not get into trouble.

      Atkinson reported the incident to Bagwell first verbally, then in an email
dated July 24, 2013, and Bagwell forwarded the email to Human Resources
(“HR”). Sovran maintains that HR investigated the complaint by speaking
with Atkinson and having Bagwell speak to the customer and Reynolds,
whereas Reynolds asserts that there was no investigation and that HR merely
backed Bagwell’s decision to terminate her. Eventually, there was a conference
call between Bagwell and other Sovran employees over the incident; they
decided to terminate Reynolds. Reynolds filed charges with the Equal Employ-
ment Opportunity Commission, which issued a right-to-sue letter.

                                       II.
      Summary judgment is proper “if 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). Where, as here, the non-movant
ultimately bears the burden of proof at trial, Sovran is entitled to summary
judgment not only by producing evidence negating Reynolds’s claims but also


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                                  No. 15-11191
by pointing to the absence of admissible evidence supporting her claims. Celo-
tex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). If Sovran does that, Reynolds
must “go beyond the pleadings and designate specific facts showing that there
is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam).

      Reynolds must do more than show “some metaphysical doubt as to the
material facts” or make “conclusory allegations” or “unsubstantiated asser-
tions,” or provide “only a ‘scintilla’ of evidence.” Id. Rather, she must “identify
specific evidence in the record” and “articulate the precise manner in which the
evidence supports . . . her claim[s].” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998). A fact is material only if it “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Reynolds’s failure to prove “an essential element” of her case
“necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

                                       III.
      In the absence of direct evidence of discrimination, the burden-shifting
test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
applies to both of Reynolds’s claims. Under this framework, Reynolds faces the
initial burden of establishing a prima facie case of discrimination. Id. at 802.
If she does that, the burden shifts to Sovran to “articulate some legitimate,
nondiscriminatory reason” for her termination. Id. At that point, the prima
facie case dissolves, and the burden shifts back to Reynolds. For her Title VII
claim, she must then show either “(1) that the employer’s proffered reason is
not true but is instead a pretext for discrimination; or (2) that the employer’s
reason, while true, is not the only reason for its conduct, and another ‘moti-
vating factor’ is the plaintiff’s protected characteristic.”    Alvarado v. Tex.
Rangers, 492 F.3d 605, 611.       For her ADEA claim, Reynolds’s burden is

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                                     No. 15-11191
somewhat different: She must show “either [1] that the employer’s proffered
reason was not true—but was instead a pretext for age discrimination—or [2]
that, even if the employer’s reason is true, [s]he was terminated because of
h[er] age.” Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013) (emphasis
added). 4

      For purposes of summary judgment, Sovran conceded that Reynolds
made out a prima facie case of discrimination, and Reynolds conceded that
Sovran had articulated a legitimate, nondiscriminatory reason for termination.
Sovran’s proffered nondiscriminatory reasons for terminating Reynolds are
that she had multiple customer service issues, she supplied a customer with
false information and falsified her supervisor’s telephone number, and she
deceived a customer who wanted to lodge a complaint against her. The court
granted summary judgment because it concluded that Reynolds failed to
provide sufficient evidence for a reasonable jury to find that Sovran’s non-
discriminatory reason was pretext and that discrimination was a motivating
factor in, or but-for cause of, her termination. On appeal, Reynolds avers that
summary judgment was improper because there are evidentiary problems with
facts on which the district court based its summary judgment and that there
are genuine disputes as to material facts.

                                            A.
      Reynolds maintains that Sovran failed to carry its burden under the
second stage of McDonnell Douglas because its nondiscriminatory reason was
not supported by evidence from a witness with personal knowledge. We decline



      4  The plaintiff’s burden of proof under the third stage of McDonnell Douglas is thus
higher for ADEA claims than for Title VII claims. For an ADEA claim, the plaintiff must
demonstrate that age was a but-for cause of the adverse employment action. For a Title VII
claim, in contrast, the plaintiff need demonstrate only that sex was a motivating factor.
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                                       No. 15-11191
to consider that objection, because it has been waived. In response to Sovran’s
motion for summary judgment, Reynolds explicitly conceded that Sovran
“‘articulated’ a legitimate business reason for her discharge.” Because “[a]
party’s concession of an issue means the issue is waived and may not be
revived,” Smith v. United States, 328 F.3d 760, 770 (5th Cir. 2003), Reynolds
cannot now attack Sovran’s proffered nondiscriminatory reason on the ground
that it was not supported by admissible evidence. 5

                                             B.
       Reynolds contends that Tammy Vega’s deposition raises a genuine issue
of material fact. There Vega, who was hired as Atkinson’s associate manager
after Atkinson became manager of Store 751, stated that Atkinson told her
that he had set Reynolds up to get fired, that he wanted Reynolds’s apartment
(which went along with the manager’s position), and that he and Bagwell were
trying to get Reynolds’s fired. Sovran objected to Atkinson’s alleged state-
ments as hearsay, but the court declined to rule on the evidentiary issue
because it concluded that, even assuming the statements were admissible, they
would not enable a reasonable jury to find discrimination based on sex or age.

       The district court was correct. Atkinson’s alleged statements do not
implicate sex or age. Consequently, they would not enable a reasonable jury
to find that Atkinson or Bagwell discriminated based on either of those pro-
tected characteristics or that Sovran was aware of their motives when it ter-
minated Reynolds on the basis that she engaged in deceptive conduct involving




       5 In the district court, Reynolds never objected to the evidentiary basis for Sovran’s
proffered nondiscriminatory reason, so her evidentiary challenge is barred unless its admis-
sion was a plain error affecting a substantial right. FED. R. EVID. 103(e). Reynolds, however,
makes no attempt to show plain error, and we find none.
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                                      No. 15-11191
a customer. Atkinson’s alleged statements raise a genuine dispute as to a fact
but not a genuine dispute as to a material fact.

                                            C.
       Reynolds maintains that the district court erred in concluding that
Bagwell’s intent to help Atkinson get a promotion could not result in illegal
discrimination against Reynolds. Helping Atkinson become a manager neces-
sarily required terminating someone in a managerial position, and Reynolds
contends that the jury could infer that Bagwell chose whom to terminate—
namely, Reynolds—based on sex or age. Reynolds also stresses the conse-
quences of Bagwell’s actions, namely, her termination, and she reasons, based
on Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Smith v. City of Jackson,
Mississippi, 544 U.S. 228 (2005), that there can be illegal discrimination even
without the intent to discriminate.

       We disagree. Standing alone, Bagwell’s intent to help Atkinson would
not permit a reasonable jury to conclude that Bagwell terminated Reynolds
based on sex or age. And Reynolds cannot prevail on her discrimination claims
in the absence of a finding of discriminatory intent. Her citations to Griggs
and Smith are inapposite, because both dealt with disparate-impact claims
rather than discriminatory targeting of a specific individual, and Reynolds
does not allege or offer any evidence that her termination was the result of
company policies that have a disparate impact based on sex or age. 6




       6 Griggs dealt with a Title VII disparate-impact claim pursuant to 42 U.S.C. § 2000e-
2(a)(2), Smith with an ADEA disparate-impact claim pursuant to 29 U.S.C.§ 623(a)(2).
Reynolds’s claims, in contrast, sound under 42 U.S.C. § 2000e-2(a)(1) and 29 U.S.C.
§ 623(a)(1).
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                                 No. 15-11191
                                      D.
      According to Reynolds, the record shows that Bagwell was given “unfet-
tered discretion that resulted in [her] firing.” This unfettered discretion, she
contends, raises a fact issue precluding summary judgment. In support of that
legal proposition, she points to Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972); Lindsey v. Prive, 987 F.2d 324 (5th Cir. 1993); and Medina v.
Ramsey Steel Co., 238 F.3d 674 (5th Cir. 2001).

      Reynolds’s theory is flawed. First, the record does not show that Bagwell
was given unfettered discretion in hiring and firing. Aside from Reynolds’s
conclusory assertions, no evidence supports the notion that Bagwell had sole
decisionmaking authority over whether to retain or fire Reynolds. Moreover,
even if he did, and other employees merely rubberstamped his decision to ter-
minate Reynolds, there is no evidence that Bagwell based or could have based
his decision on purely subjective factors, as was the case in Rowe, Lindsey, and
Medina. Instead, the record indicates that the decision to terminate Reynolds
rested on objective factors: customer complaints and suspicions that Reynolds
had acted deceptively.

      Second, all of the cases that Reynolds cites are inapposite. Rowe deals
with a disparate-impact claim under Title VII, and Lindsey and Medina con-
cern the use of subjective criteria in hiring and promotion.

                                       E.
      Reynolds criticizes the district court for failing to consider Bagwell’s
statements to Reynolds as “admissible and relevant in raising a fact issue
showing that he discriminated against her because of her sex or age.” Reynolds
testified that, twice when hiring an associate manager, Bagwell remarked that
it would be preferable to hire a man. She also stated that Bagwell told her she


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                                       No. 15-11191
should be more “friendly and bubbly” toward people and that she might be
happier doing something else and maybe did not like working for Sovran.

       The district court concluded that those alleged remarks failed to qualify
as circumstantial evidence of intentional discrimination. To demonstrate that
an employer’s proffered reason for termination is pretext or to serve as addi-
tional evidence of discrimination, a “remark must, first, demonstrate
discriminatory animus and, second, be made by a person primarily responsible
for the adverse employment action or by a person with influence or leverage
over the formal decisionmaker.” Laxton v. Gap, Inc., 333 F.3d 572, 583 (5th
Cir. 2003). Bagwell’s alleged statements satisfy the second requirement, given
that he was Reynolds’s direct supervisor and participated in the decision to
terminate her.        The district court concluded, however, that Bagwell’s
statements failed to satisfy the first requirement.

       The court was correct. Bagwell’s alleged remarks that Reynolds should
be more “friendly and bubbly,” that she might be happier doing something else,
and that she might not like working for Sovran implicate neither sex nor age,
nor do they demonstrate discriminatory animus on either basis. Reynolds’s
alleged statements regarding a man’s being a preferable hire, on the other
hand, do implicate sex but do not raise a genuine dispute concerning discrimin-
atory animus, because they were not “proximate in time to the [complained-of
adverse employment decision]” or “related to the employment decision at
issue.” 7 Bagwell’s alleged remarks expressing a preference for male hires
occurred in 2012 and were made with regard to the hiring of associate mana-
gers. They were thus remote in time and unrelated to Reynolds’s termination



       7 Jenkins v. Methodist Hosps. of Dall., Inc., 478 F.3d 255, 261 (5th Cir. 2007) (altera-
tion in original) (quoting Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 343–44
(5th Cir. 2002)).
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                                 No. 15-11191
in August 2013. Those alleged comments do not create a genuine dispute of
material fact.

                                         F.
      Reynolds claims that Sovran failed to follow its internal disciplinary
procedures, raising a fact issue as to whether Sovran’s nondiscriminatory
reason for her termination was mere pretext. The district court concluded
otherwise, because Reynolds “failed to point to summary judgment evidence
that would enable a reasonable jury to find that Sovran deviated from its for-
mal disciplinary practice.” Reynolds, 2015 WL 6501552, at *6. That analysis
is sound. Reynolds never introduced the relevant parts of Sovran’s employee
handbook into the summary judgment record. In support of her claims that
Sovran failed to comply with its disciplinary policy, she merely offered testi-
mony that she “believed” Sovran adopted a process similar to the one she
described. Her “unsubstantiated and subjective beliefs and opinions regarding
good employment practices are insufficient to create a genuine fact issue.” Id.
(citing Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002)). Thus Rey-
nolds has failed to show a genuine dispute as to a material fact.

                                       G.
      Reynolds posits that the district court erred in relying on Atkinson’s
statement that, after Reynolds’s termination, Sovran first offered her position
to another female employee, because, Reynolds claims, Atkinson’s statement
is hearsay. Reynolds did not object to the admissibility of that evidence in the
district court, so her challenge is barred unless its admission was a plain error
affecting a substantial right. FED. R. EVID. 103(e). Reynolds makes no attempt
to show plain error, and we find none.




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                                      No. 15-11191
                                             H.
       Reynolds objects to the district court’s conclusion that an employer’s
good-faith mistake in deciding to terminate does not raise a genuine fact issue
regarding pretext. Citing Waggoner v. City of Garland, Texas, 987 F.2d 1160
(5th Cir. 1993), Reynolds argues that the veracity of an accusation can create
a fact issue in situations other than where one employee accuses another
employee of engaging in some type of wrongdoing. But Reynolds’s narrow read-
ing of Waggoner is incorrect. “[E]ven an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, non-discriminatory rea-
son.” Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991). What
Reynolds must therefore prove to avoid summary judgment is not that she
really did not handle the customer complaint in a deceptive manner, but that
Sovran did not have a good-faith belief regarding the customer complaint.
Because she has failed to make this showing, there is no genuine dispute as to
a material fact.

                                             I.
       Reynolds asserts that the district court erred in concluding that
Atkinson would not have “set up” Reynolds for termination, in light of his
praise for her in his deposition. But the court never arrived at any such conclu-
sion. 8 The objection is thus meritless.

       The summary judgment is AFFIRMED.




       8 Reynolds cites the district court’s opinion, 2015 WL 6501552, at *9, which discusses
her theory that Bagwell (rather than Atkinson) tried to get Reynolds fired and Sovran’s
argument that it would be illogical for “the same employee, Bagwell, who gave [Reynolds]
high marks on store visits, would then turn around and discriminate against her based on
her age or her gender.” The district court declined to consider Sovran’s argument “because
this evidence, alone or in combination with the other three reasons [Reynolds offers], is
insufficient to raise a genuine fact issue.” Id.
                                             11
