     Case: 15-20082      Document: 00513210542         Page: 1    Date Filed: 09/28/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 15-20082                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ANGELA VANN,                                                            September 28, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellant,                                            Clerk

v.

MATTRESS FIRM, INCORPORATED,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3566


Before ELROD and HAYNES, Circuit Judges. *
PER CURIAM:**
       Angela Vann appeals the district court’s grant of summary judgment on
her age, race, and gender discrimination claims under Title VII of the Civil
Rights Act of 1991, Chapter 21 of the Texas Labor Code (formerly known as
the Texas Commission on Human Rights Act) and the Age Discrimination in
Employment Act. Because Vann has failed to raise a genuine issue of material



       * This matter is being decided by a quorum. 28 U.S.C. 46(d).
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20082
fact showing that the reasons Mattress Firm offers to explain her transfers and
subsequent termination are mere pretext, we AFFIRM.
                                       I.
      Angela Vann joined Mattress Firm as a manager-on-duty, which is an
entry level sales position, in July 2005. She was 47 years old when she was
hired. Over the next eighteen months, she was promoted to store manager at
her small store, then transferred to become store manager at a large, high
volume store located in Hedwig Village. At Hedwig Village, she continued to
record strong sales numbers but, according to Mattress Firm, her co-workers
had difficulty working with her. They claimed she would often assist customers
out of turn and take business from other associates in the store. Vann’s district
manager demoted her to assistant store manager in September 2008 and
moved her two months later, once again as store manager, to a new store with
lower sales volume. Once again she had consistently strong personal sales but
the overall store numbers of her location declined, and her associates
complained of problems with her teamwork. She was transferred, promoted,
and demoted a number of times until, at her request, she returned to the
Hedwig Village store as store manager in March 2010.
      Although Vann’s personal sales numbers remained exceptional, her new
district manager received more reports of problems with Vann’s management
and teamwork. Specifically, the reports alleged that Vann did not participate
in the training of new associates, did not assist in maintaining the appearance
of the store, and repeatedly took customers out of turn when they entered the
store instead of following Mattress Firm’s rules regarding the division of
customers among employees. In October 2010, the district manager demoted
Vann to assistant store manager. When complaints continued, the district
manager moved Vann to the Fry Road location as assistant store manager.
Vann was replaced by a white, twenty-four year old woman at the Hedwig
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                                 No. 15-20082
Village location. Mattress Firm asserts that the Fry Road location is
comparable to the Hedwig Village location (it is classified as a large store with
a clearance center) but the store was not performing as well as the Hedwig
location at the time of Vann’s transfer, and her sales volume fell 18% at the
new location.
      In November 2011, a new district manager took over Vann’s store. After
warning Vann and the store manager at Fry Road that they would be
transferred if their sales numbers did not improve, he moved both to smaller
stores. Vann was relocated to a medium store in Dairy Ashford as store
manager. Mattress Firm asserts that the Dairy Ashford store was
outperforming the Fry Road store at the time of the transfer, however, Vann’s
sales at Dairy Ashford were 40% lower than at Fry Road and 50% lower than
they had been at Hedwig Village. Vann and her manager were replaced at Fry
Road with two men (one white and one Hispanic), both under 40 years in age.
      On December 12, 2011, Vann was terminated pursuant to a customer
complaint about a transaction that had taken place on September 4, 2011, at
the Fry Road store. The customer complained that Vann altered her charge
after she had left the store to add an additional $79 delivery fee. The customer
discovered the fee when she went to a different location to attempt to pay her
remaining balance in early December 2011. Vann does not dispute that she
added the fee but asserts that the customer had verbally agreed to the fee and
that Vann had mistakenly left it off the customer’s bill. She defended her
addition of the charge as a correction rather than a surprise fee. When the
district manager learned of the incident, he spoke with Vann, who admitted to
altering the charge. He then fired Vann, without speaking to the other
associates who Vann claimed would corroborate her assertions that the
customer had verbally agreed to the delivery charge. Vann was replaced at the
Dairy Ashford store by a white woman under the age of forty.
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                                    No. 15-20082
      Vann filed a complaint with the Equal Employment Opportunity
Commission shortly after her termination. When the EEOC declined to pursue
her case, she filed this lawsuit against Mattress Firm. 1 The district court
granted summary judgment in favor of Mattress Firm. Vann v. Mattress Firm,
Inc., No. 4:21-cv-3566, 2014 WL 4677459 (S.D. Tx. Sept. 18, 2014). Vann
appeals.
                                           II.

      We review a district court’s grant of summary judgment de novo. Jones
v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991–92 (5th Cir. 2005). Summary
judgment is proper when there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). This court must take all the facts and evidence in the light most
favorable to the non-moving party. Jackson v. Watkins, 619 F.3d 463 (5th Cir.
2010). A panel may “affirm summary judgment on any ground supported by
the record, even if it is different from that relied on by the district court.” Moss
v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (quoting Hortzclaw v.
DSC Comm’n Corp., 255 F.3d 254, 258 (5th Cir. 2001)).
                                           A.
      Vann brings age, sex, and race based discrimination claims against
Mattress Firm pursuant to three statutes: Title VII of the Civil Rights Act of
1991, 42 U.S.C. § 2000e et seq., the federal Age Discrimination in Employment
Act, 29 U.S.C. § 623 et seq., and Chapter 21 of the Texas Labor Code, Tex. Lab.
Code Ann. § 21. These statutes make it illegal to discriminate against an
employee or potential employee on the basis of race or sex, Tex. Code Ann. §


      1  Vann initially also brought claims under the Fair Labor Standards Act as well as
the ADEA, Title VII and Chapter 21 of the Texas Labor Code. She waived her FLSA claims
prior to the district court’s summary judgment ruling and does not attempt to revive them
on appeal.
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                                       No. 15-20082
21.051, 42 U.S.C. § 2000e, or age, Tex. Code Ann. § 21.051, 29 U.S.C. § 623
(a)(1). Vann’s race and sex based claims are adjudicated under the same
standard. 2
       A plaintiff may establish discrimination directly or indirectly. Where, as
here, the plaintiff brings only circumstantial evidence of discrimination, we
rely on the three step process articulated in McDonnell Douglas Corp. v. Green.
411 U.S. 792 (1973). First, the plaintiff must make a prima facie case “showing:
‘(1) the plaintiff is a member of a protected group; (2) the plaintiff was qualified
for the job that was held; (3) the plaintiff was discharged; and (4) after the
employer discharged the plaintiff, the employer filled the position with a
person who is not a member of a protected group.’” Black v. Pan Am. Labs.,
L.L.C., 646 F.3d 254, 259 (5th Cir. 2011) (quoting Valdez v. San Antonio
Chamber of Commerce, 974 F.2d 592, 596 (5th Cir. 1992)). Once the plaintiff
has established her prima facie case, the burden shifts to the employer to show
“a legitimate, nonretaliatory reason for the adverse employment action.” Black,
646 F.3d at 259. “The employer’s burden is one of production, not persuasion,
and does not involve a credibility assessment.” Id.
       “The burden then shifts back to the plaintiff to show either: ‘(1) that the
defendant’s reason is not true, but is instead a pretext for discrimination
(pretext alternative); or (2) that the defendant’s reason, while true, is only one
of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff’s
protected characteristic (mixed motive[s] alternative).” Id. (quoting Rachid v.



       2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing the
requirements to bring race based challenges under Title VII); Goudeau v. Nat’l Oilwell Varco,
L.P., 793 F.3d 470, 474 (5th Cir. 2015) (applying the McDonnell Douglas framework to
TCHRA claims); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex.
2012) (Chapter 21 is “effectively identical to Title VII, its federal equivalent …. Because one
of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the
Civil Rights Act of 1964, we have consistently held that those analogous federal statutes and
the cases interpreting them guide our reading of the TCHRA.”).
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                                       No. 15-20082
Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (alteration in original). 3
To satisfy step three under the pretext alternative, the plaintiff bears the
burden of proof to show that each nondiscriminatory reason proffered by the
employer is pretextual. Black, 646 F.3d at 259. The burden of proof remains
with the plaintiff at all times, who must raise a genuine dispute of material
fact that the nondiscriminatory reason is pretextual. Tex. Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bd. of Trustees v. Sweeney, 439
U.S. 24 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–
43 (2000).
                                                  B.
       Vann initially brought claims based on a series of adverse employment
actions taken against her between September 2008 and her eventual firing in
December 2011. She included as adverse employment actions each of her
transfers and demotions resulting in lowering earnings or longer commutes.
She filed her first complaint with the Equal Employment Opportunity
Commission on December 20, 2011. Her claims under both state and federal
law, however, are time barred if she has not filed within 300 days of the adverse
employment action. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d); Tex. Lab.
Code § 21.202 (allowing only a 180 day window to file). Vann’s transfer from
the Hedwig Village store to the Fry Road store in July of 2011 and her transfer
from Fry Road to the Dairy Ashford store fall within the 300 day window, as
does her termination. All of her other claims based on earlier transfers are time
barred. 4 She is, however, able to use these transfers “as background evidence



       3 Vann has not argued the mixed motives alternative, so we need not address it.
       4  Vann argues that the series of transfers she experienced over a number of years
should qualify under the “continuing violation theory” which “relieves a plaintiff of
establishing that all of the complained-of conduct occurred within the actionable period if the
plaintiff can show a series of related acts, one or more of which falls within the limitations
period.” Huckaby v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (quoting Messer v. Meno, 130
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                                      No. 15-20082
in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002).
                                             C.
       The district court determined that Vann established a prima facie case
on her race and sex based claims. Assuming without deciding that Vann met
her summary judgment burden on the prima facie case, Mattress Firm has met
its burden of production by producing evidence that Vann’s coworkers did not
consider her a good team player at the Hedwig Village and Fry Road locations
and that she neglected the non-sales duties of her management position.
Furthermore, Mattress Firm relies on the customer complaint and Vann’s
subsequent actions to defend Vann’s termination. Vann asserts that these
reasons are mere pretext, but has not met her burden of proof to do so, even
when taking her proffered evidence in the light most favorable to her claims.
       As evidence of pretext, Vann attempts to offer proof that similarly
situated Mattress Firm employees who were not members of the relevant
protected classes were treated favorably in comparison with her. See
McDonnell Douglas, 411 U.S. at 804 (“[R]espondent must … be offered a fair
opportunity to show that petitioner’s stated reason for respondent’s rejection
was in fact pretext. Especially relevant to such a showing would be evidence
that white employees involved in acts … of comparable seriousness … were
nevertheless retained.”). While Vann was consistently a top seller at her
various stores, Mattress Firm has asserted that part of her success resulted
from poaching the sales of other associates. Vann has not offered any
comparators with a similar history of poor teamwork and facility management



F.3d 130, 134 (5th Cir. 1997)). The district court determined the continuing violation theory
is not appropriate where, as here, each act is “the sort of discrete and salient event that
should put an employee on notice that a cause of action has accrued.” Huckaby, 142 F.3d at
240. We agree.
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                                 No. 15-20082
who were preferentially treated. In fact, most Mattress Firm employees were
subject to frequent transfers—an average employee in Vann’s area is
transferred seven or eight times in a three year period.
      As for her termination, Vann has offered evidence of other employees,
not members of protected classes, who sold used goods as new, were late or
absent from work, engaged in unprofessional conduct toward customers or
coworkers, and shared information with competitors. These individuals were
not terminated. Their activities, however, are insufficiently close to Vann’s to
create a genuine issue of material fact as to whether Mattress Firm’s
justifications are pretext. See Turner v. Kansas City S. Ry. Co., 675 F.3d 887,
895 (5th Cir. 2012) (“the employment actions being compared will be deemed
to have been taken under nearly identical circumstances when the employees
being compared held the same job, … shared the same supervisor … and have
essentially comparable violation histories.”).
      Vann also offers the example of salespeople reprimanded for poor
teamwork and other individuals reprimanded for incorrectly under billing
customers without making any effort to correct the charges. Vann has not
shown, however, that district managers wanted those individuals to correct the
under-billed charges without contacting the customers, nor has she shown that
the reprimanded individuals had an extensive history of teamwork problems.
Vann’s problems continued over a number of years in a number of locations
with various groups of coworkers. She has not offered any evidence of a
similarly situated individual. Nor has she presented any Mattress Firm
employee who added such a large charge to a customer account without
speaking with the customer leading to a customer complaint. Finally, she has
not produced an example of another employee who, as she did, attempted to
negotiate what the customer felt was an unethical solution to a problem after
that customer made a complaint. Accordingly, the district court determined
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                                No. 15-20082
that she has not presented evidence rebutting “each of the nondiscriminatory
reasons the employer articulate[d]” and therefore has failed to satisfy the
McDonnell Douglas test. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 200
(5th Cir. 2010). We agree.
                                      D.
      Vann’s age based claims are assessed under a modified version of the
McDonnell Douglas framework. The only difference occurs in the final stage of
the McDonnell Douglas analysis. Goudeau, 793 F.3d at 474. “Under the ADEA,
the employee must prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.” Squyres v. Heico Comp., 782 F.3d 224, 231 (5th
Cir. 2015). “The ADEA thus requires a showing of ‘but-for’ causation.”
Goudeau, 793 F.3d at 474. Merely showing that age was a motivating factor in
the decision to terminate or transfer an employee will not allow a claim to
succeed. As with her race and sex based claims, the burden of persuasion
remains with the plaintiff. Squyres, 782 F.3d at 231.
      As we did with her race and sex claims, we assume without deciding that
Vann has established her prima facie case. Mattress Firm has offered her poor
teamwork and leadership as reasons for her transfers and adds her alteration
of the customer bill to explain her termination. The comparators offered by
Vann to show pretext relating to her age based claims are the same as those
offered for her other claims. The district court found that Vann’s attempt to
prove Mattress Firm’s explanation of her transfers and termination were
pretextual did not create a genuine issue of material fact. We agree for the
same reasons we discussed above.
                                     III.
      Because Vann has not created a genuine issue of material fact suggesting
that Mattress Firm’s proffered reasons for her transfers and termination are
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                              No. 15-20082
pretextual, we AFFIRM the ruling of the district court granting summary
judgment.




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