                                                      United States Court of Appeals
                                                               Fifth Circuit
                IN THE UNITED STATES COURT OF APPEALS F I L E D
                        FOR THE FIFTH CIRCUIT
                                                     January 11, 2007

                                                     Charles R. Fulbruge III
                             No. 06-60494                    Clerk
                           Summary Calendar


DANNY HOUK

                      Plaintiff - Appellant

     v.

PEOPLOUNGERS INC

                      Defendant - Appellee



             Appeal from the United States District Court
          for the Northern District of Mississippi, Aberdeen
                         USDC No. 1:04-CV-333


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Danny Houk appeals the district court’s

grant of summary judgment to defendant-appellee Peoploungers,

Inc. (“Peoploungers”), arguing that genuine issues of material

fact remain with regard to Houk’s claim of age discrimination

under the Age Discrimination in Employment Act of 1967 (“ADEA”),

29 U.S.C. §§ 621 et seq.1    Houk was fired by Peoploungers for

     *
        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this opinion should not be published and is not precedent except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.
     1
        Houk initially appealed the district court’s grant of
summary judgment to Peoploungers on his state law claim for

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leaving work early one day without permission, but contends that

he did have permission from a supervisor and that this factual

dispute--along with his replacement by a worker nine years

younger than him--forestalls summary judgment.

     We review a grant of summary judgment de novo, viewing all

evidence in the light most favorable to the nonmoving party and

drawing all reasonable inferences in that party’s favor.     See

Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.

2000).   “Summary judgment is proper when the evidence reflects no

genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.”   Id. (citing FED. R. CIV. P. 56(c)).

“A genuine issue of material fact exists ‘if the evidence is such

that a reasonable jury could return a verdict for the non-moving

party.’”   Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

     Under the burden-shifting framework for discrimination

claims established by McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973), Houk has the initial burden of establishing a

prima facie case of discrimination by showing that “(1) he was

discharged; (2) he was qualified for the position; (3) he was

within the protected class at the time of discharge; and (4) he

was either i) replaced by someone outside the protected class,

ii) replaced by someone younger, or iii) otherwise discharged



defamation, but Houk conceded this claim in his reply brief.

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because of his age.”    Bodenheimer v. PPG Indus., Inc., 5 F.3d

955, 957 (5th Cir. 1993).    If Houk meets these requirements, “a

presumption of discrimination arises which the defendant must

then rebut by articulating a legitimate, nondiscriminatory reason

for the discharge.”    Id.   If Peoploungers satisfies this burden,

“the presumption of age discrimination established by [Houk’s]

prima facie case dissolves,” id., and Houk must show either that

(1) Peoploungers’s reason is not true, but is instead a pretext

for age discrimination, or (2) Peoploungers’s reason, while true,

is only one reason for its actions, and Houk’s age was a

motivating factor for his discharge.     Rachid v. Jack in the Box,

Inc., 376 F.3d 305, 312 (5th Cir. 2004).

     Assuming arguendo that Houk established a prima facie case

of age discrimination, the district court properly recognized

that no genuine issue of material fact exists as to whether

Peoploungers’s given reason for the discharge was either

pretextual or accompanied by an age-based reason.    Although the

parties dispute whether and under what terms Houk’s direct

supervisor gave Houk permission to leave early, the only evidence

presented as to the managers who made the decision to fire Houk

indicates that they believed that Houk did not have permission to

leave.   Cf. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091

(5th Cir. 1995) (“The question is not whether an employer made an

erroneous decision; it is whether the decision was made with



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discriminatory motive.”).    And even if we were to infer, as Houk

urges, that Houk’s direct supervisor must have told the decision

makers that Houk had permission to leave, the evidence does not

show that Peoploungers’s given reason is a pretext for age

discrimination or that age was in any way a factor in Houk’s

termination.

       Houk points out that he was replaced with a worker who was

nine years younger than him.    Houk’s successor, however, was not

hired or promoted into the job, but was merely another worker

already in Houk’s department who was assigned to take over Houk’s

workload after the firing.    Further, Houk was fired at age 48,

only a year and a half after he was hired at age 46 by one of the

same managers ultimately involved in the decision to fire him,

making his claim of age discrimination even more tenuous.    Cf.

Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996)

(holding that the hiring and firing of an employee by the same

actor within a period of a few years “gives rise to an inference

that age discrimination was not the motive behind [the]

termination”).

       Finally, despite the importance that Houk places on the less

severe, 30-day probation given to the two younger workers that

left with Houk on the day in question, there is simply no

evidence indicating that the different treatment was based on

age.    One of the younger workers, Houk’s son, left with Houk

because Houk was his ride, and the other worker was Houk’s work

                                  4
partner, whose work would have been less efficient without Houk.

More significantly, neither of those workers had a history of

walking off the job without permission, whereas Houk admits that

he quit without notice and walked off the job without permission

in an earlier stint with Peoploungers in 2001, providing a

legitimate justification for punishing Houk more harshly this

time around.

     Because Houk points to no evidence that Peoploungers’s

reason for firing him is a pretext for age discrimination or that

age was a motivating factor in his discharge, the district court

properly granted summary judgment to Peoploungers.

     AFFIRMED.   Costs shall be borne by plaintiff-appellant.




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