     Case: 14-60745      Document: 00513150340         Page: 1    Date Filed: 08/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60745                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DEBBIE KOPSZYWA,                                                          August 11, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

HOME DEPOT USA, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               USDC 1:12-CV-394


Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Debbie Kopszywa (“Kopszywa”) filed this suit,
alleging that her former employer, Defendant-Appellee Home Depot USA,
Incorporated (“Home Depot”), subjected her to age discrimination, sex
discrimination, and retaliation in violation of Title VII and the Age
Discrimination in Employment Act (“ADEA”). Kopszywa appeals the district
court’s order granting summary judgment in Home Depot’s favor on all of her


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60745
claims. Because Kopszywa has not raised a genuine issue of material fact on
the issue of pretext, we affirm.


                                            I.
      Home Depot hired Kopszywa as a loss prevention manager at its
Gulfport, Mississippi location in 1999. Kopszywa rose through the ranks to
become the store manager at Home Depot’s location in Picayune, Mississippi
in 2010. With the exception of a single occasion where Home Depot gave
Kopszywa an adverse performance notice because her store failed to post a
promotional sign, Home Depot did not give Kopszywa any negative
employment evaluations or discipline/performance notices during the first
decade of her employment with the company.
      Just a few months after Kopszywa began managing the Picayune store,
Scott Murry (“Murry”) 1 transferred from a Home Depot district in Oregon to
become the manager of Kopszywa’s district in Mississippi. Murry is a male who
is approximately fifteen years younger than Kopszywa. Murry and Kopszywa
had no problems with each other at first, and Murry did not give Kopszywa
any adverse discipline/performance notices during the first few months of his
tenure in Mississippi. In March 2011, Murry gave Kopszywa a largely positive
performance review.
      However, in July 2011, Murry gave Kopszywa a written adverse
performance notice. Murry disciplined Kopszywa for failing to keep products
in stock. Kopszywa admits that her store did not keep enough tubs in stock,
but denies that her store had any of the other problems that Murry listed in




      1 The record is inconsistent with respect to whether Murry’s name is spelled “Murry”
or “Murray.” Following the district court’s lead, we will use “Murry.”
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                                      No. 14-60745
performance notice. Kopszywa also claims that it was impossible for her to
restock the tubs before Murry inspected her store.
       Murry gave Kopszywa a second written notice in August 2011. Kopszywa
had permitted an assistant store manager to stay at her apartment in
Picayune. Several employees had complained that this created an appearance
of favoritism in the store, and Murry agreed. Kopszywa claims that Home
Depot never told her that allowing employees to stay in her apartment would
violate company policy.
       A week later, Murry gave Kopszywa a verbal disciplinary notice for
smoking a cigarette in her work apron outside the store.
       Murry gave Kopszywa a third written notice in October 2011 and a
fourth notice in November 2011. Each notice cited a number of Home Depot
directives that Kopszywa had allegedly failed to implement. Kopszywa denies
committing some of the disciplinary violations listed in the October and
November notices.
       Around this time, Kopszywa contacted the district’s human resource
department “on a weekly basis about her concerns about [Murry’s] treatment
of [her].” Kopszywa’s affidavit states: “I told [the HR employee] I had realized
I was a target for termination and, on several occasions, told her I believed this
was because of my gender and my age.” 2 The HR department notified Murry
that Kopszywa had reported these concerns.
       Home Depot recommended Kopszywa for termination in December 2011.
Home Depot relied on the four written disciplinary notices that Murry gave
Kopszywa, as well as an assortment of other violations that Kopszywa
allegedly committed, when submitting her severance package request.


       2 Home Depot argues that the Court should disregard this statement in Kopszywa’s
affidavit. As explained below, Kopszywa has failed to demonstrate a genuine issue of material
fact even if we consider the affidavit.
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                                      No. 14-60745
Although Murry was the Home Depot employee who initiated the termination
process, several other employees – many of whom are female – also
participated in the decision.
       Home Depot ultimately terminated Kopszywa on January 6, 2012.
Kopszywa was fifty-eight years old at that time. Home Depot replaced
Kopszywa with a younger male employee. Kopszywa claims that Home Depot
unlawfully terminated her on the basis of age and sex, as well as in retaliation
for complaining to HR about Murry’s discriminatory treatment of her.
       After exhausting her administrative remedies, Kopszywa sued Home
Depot for (1) age discrimination under the ADEA; (2) sex discrimination under
Title VII; and (3) retaliatory discharge. 3 Importantly, Kopszywa alleges that
Murry is the only employee who discriminated against her at Home Depot.
       The district court granted summary judgment in Home Depot’s favor on
all of Kopszywa’s claims. The district court ruled that Kopszywa failed to raise
a genuine dispute of material fact on the issue of pretext with respect to any of
her claims. Kopszywa now appeals that judgment.


                                             II.
       “We review the grant of a motion for summary judgment de novo,
applying the same standard as the district court.” 4 “The court shall grant
summary judgment 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.” 5




       3  Kopszywa also raised a hostile work environment claim against Home Depot in the
district court, but she does not pursue that claim on appeal.
        4 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citing Threadgill v.

Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998)).
        5 FED. R. CIV. P. 56(a).

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                                      No. 14-60745
“When considering a motion for summary judgment, the court views all facts
and evidence in the light most favorable to the non-moving party.” 6


                                            III.
       We shall first consider Kopszywa’s discrimination claims. Kopszywa’s
age discrimination claim is based almost entirely on the same evidence as her
sex discrimination claim, so we will analyze those two claims simultaneously. 7
       Kopszywa relies solely on circumstantial evidence to support her
discrimination claims. As a result, the McDonnell Douglas 8 three-step burden-
shifting framework applies. First, Kopszywa must produce sufficient evidence
to support a prima facie case of discrimination. 9 If she does so, the burden then
shifts to Home Depot to “articulate a legitimate, nondiscriminatory reason” for
the adverse employment action. 10 Then, if Home Depot meets that burden,
Kopszywa must produce sufficient evidence that Home Depot’s proffered
reason for terminating her is a pretext for discrimination. 11
       Home Depot concedes for the purposes of this appeal that Kopszywa has
established a prima facie case for age and sex discrimination. Home Depot has
articulated    a   “legitimate,     nondiscriminatory       reason”    for   terminating
Kopszywa: poor work performance. Specifically, Home Depot contends that
Kopszywa repeatedly failed to abide by company policies and directives.




       6 Moss, 610 F.3d at 922 (citing United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d
283, 285 (5th Cir. 2006)).
       7 See Munoz v. Seton Healthcare, Inc., 557 F. App’x 314, 319-20 (5th Cir. 2014) (per

curiam) (“Because Munoz’s claims under Title VII [and] the ADEA . . . involve the same
conduct alleged above, we discuss them together.”).
       8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       9 Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (citing Burrell v. Dr.

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th Cir. 2007)).
       10 Id. (citing Burrell, 482 F.3d at 412).
       11 Id. (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

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                                        No. 14-60745
Therefore, the only question is whether Kopszywa has demonstrated a genuine
dispute of material fact on the issue of pretext.
       An employee creates a genuine dispute of material fact on the issue of
pretext if she produces sufficient evidence “that the legitimate reasons offered
by the defendant were not its true reasons.” 12 “An employee can show pretext
‘either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.’” 13
       Kopszywa first argues that the district court applied an incorrect legal
standard when evaluating her pretext evidence. According to Kopszywa, the
district court improperly required her to not only produce evidence that Home
Depot’s proffered reason was false, but also to produce evidence “that
discrimination was the real reason” for the adverse employment action.
Kopszywa claims that the district court’s statement of the law contradicts the
Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc. 14
       We find no fault with the district court’s recitation of the applicable legal
principles. Reeves merely holds that it is generally “permissible for the trier of
fact to infer the ultimate fact of discrimination from the falsity of the
employer's explanation.” 15 The Reeves court explicitly noted that evidence of
pretext will not always be sufficient to survive summary judgment. 16




       12  Squyres v. Heico Cos., 782 F.3d 224, 231 (5th Cir. 2015) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
        13 Id. (quoting Moss, 610 F.3d at 922).
        14 530 U.S. 133.
        15 Id. at 147 (emphasis in original).
        16 Id. at 148 (citations omitted) (“Certainly there will be instances where, although the

plaintiff has established a prima facie case and set forth sufficient evidence to reject the
defendant's explanation, no rational factfinder could conclude that the action was
discriminatory.”).
        “Although Reeves was based on a motion for judgment as a matter of law, the standard
is the same for summary judgment.” Price v. Fed. Express Corp., 283 F.3d 715, 720 n.1 (5th
Cir. 2002) (citing Pratt v. City of Hous., 247 F.3d 601, 607 n.3 (5th Cir. 2001)).
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                                       No. 14-60745
       After reviewing the parties’ arguments and the entirety of the summary
judgment record, we conclude that the district court did not reversibly err in
granting summary judgment to Home Depot on Kopszywa’s discrimination
claims. Kopszywa admits that she committed numerous disciplinary
violations. Those violations alone could form a lawful basis for her
termination. 17 Although Kopszywa denies that she committed some of the
other disciplinary violations that Home Depot cited in her severance package
request, “a fired employee’s actual innocence of h[er] employer’s proffered
accusation is irrelevant as long as the employer reasonably believed it and
acted on it in good faith.” 18 There is no evidence that Murry did not or could
not reasonably believe that Kopszywa committed the violations in question.
Kopszywa’s other categories of evidence are not probative of pretext either.


                                             IV.
       We now turn to Kopszywa’s retaliation claims. Kopszywa alleges that
Murry retaliated against her because she reported to Home Depot’s human
resource director “on a weekly basis about her belief that [Murry] was targeting
her for termination because of gender and/or age.” The summary judgment
record does not contain written records of Kopszywa’s complaints to HR, which
would have been discoverable if they existed. Nevertheless, Kopszywa’s
affidavit suggests that she spoke with an HR representative about Murry every
week of the “last six months of [her] employment with Home Depot,” which
would have been around the time that Murry gave her the second disciplinary
notice.


       17  See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (“Our
job as a reviewing court conducting a pretext analysis is not to engage in second-guessing of
an employer’s business decisions.” (citations omitted)).
        18 Cervantez v. KMGP Servs. Co., 349 F. App’x 4, 10 (5th Cir. 2009) (citing Waggoner

v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993)).
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                                        No. 14-60745
       The district court ruled that Kopszywa failed to produce sufficient
evidence that Home Depot would not have terminated her “but for” her
protected activities. For the following reasons, we agree. 19
       The McDonnell Douglas three-step burden-shifting framework governs
Kopszywa’s retaliation claims under Title VII and the ADEA just as it governs
her discrimination claims. 20 We will assume arguendo that Kopszywa has
established a prima facie case. Again, Home Depot has satisfied its burden to
articulate a legitimate, non-discriminatory reason for terminating Kopszywa:
poor work performance. “Therefore, the ultimate issue is whether [Home
Depot] unlawfully retaliated against [Kopszywa] for exercising protected
activity.” 21
       “In order to avoid summary judgment” on a retaliation claim, “the
plaintiff must show ‘a conflict in substantial evidence’ on the question of
whether the employer would not have taken” the challenged adverse
employment action “‘but for’ the protected activity.” 22 As a matter of law, “‘[b]ut
for’ causation . . . cannot be established by temporal proximity alone.” 23
Temporal proximity may only create a genuine dispute of material fact on the
issue of but-for causation if the employee also introduces other probative
evidence of pretext. 24



       19   Home Depot asks us to disregard Kopszywa’s affidavit when evaluating the
summary judgment evidence. Kopszywa’s retaliation claim fails even if we consider her
affidavit, so we need not reach this issue.
        20 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (Title VII); Sherrod

v. Am. Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998) (ADEA).
        21 Sherrod, 132 F.3d at 1122.
        22 Feist v. La. Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 454 (5th Cir.

2013) (quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)) (Title VII). See also
Sherrod, 132 F.3d at 1122 (ADEA).
        23 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir. 2012) (citing Strong

v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)).
        24 Id. (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408-09 (5th Cir.

1999)).
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                                         No. 14-60745
      On appeal, Kopszywa relies solely on temporal proximity to support her
retaliation claims. Thus, as a matter of law, she has not created a genuine
dispute of material fact on the issue of but-for causation. 25 Moreover, even if
we considered the pretext evidence that Kopszywa advanced to support her
discrimination claim, that evidence is insufficient to create a genuine dispute
of material fact. The district court therefore properly granted summary
judgment in Home Depot’s favor on her retaliation claims.
      AFFIRMED.




      25   See id. (citing Strong, 482 F.3d at 808).
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