     Case: 15-10097      Document: 00513225093         Page: 1    Date Filed: 10/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10097                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARCELINO SALAZAR,                                                        October 8, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellant,                                              Clerk

v.

CARGILL MEAT SOLUTIONS CORPORATION,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:13-CV-204


Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit
Judges.
PER CURIAM:*
       Plaintiff–Appellant Marcelino Salazar alleges that his former employer,
Defendant–Appellee Cargill Meat Solutions Corporation (“Cargill”), violated
the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634,
when it terminated his employment. After more than twenty years at Cargill
with no disciplinary history, Salazar was summarily dismissed 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-10097
insubordination when he shrugged his shoulders to respond in the negative to
a routine question from a supervisor. According to Salazar, he was unable to
form a vocal response because his mouth was full of coffee, and nothing in his
considerable experience at Cargill indicated that such nonverbal communication
amounted to insubordination meriting immediate dismissal. Additionally, a
new, significantly younger employee appeared at Cargill on the day of Salazar’s
termination and took over Salazar’s responsibilities. The district court granted
summary judgment to Cargill, finding that Salazar had failed to present
competent evidence that the company’s proffered reason for terminating him
was a pretext for age discrimination. We disagree and reverse.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      Salazar worked at Cargill’s cattle feedlot in Lockney, Texas from the
mid-1980s until his termination in 2012. At the time of his termination,
Salazar was fifty-six years old and held the position of feeder-truck driver in
Cargill’s Feed Department—a position he had held since at least 2007 without
a single disciplinary incident. As a feeder-truck driver, Salazar delivered cattle
feed from Cargill’s mill to its feed bunk. He also maintained his feeder truck,
performing minor repairs and reporting on the vehicle’s condition to his
superior so that the company could arrange for substantial repairs when
necessary.
      In June 2012, Salazar’s supervisor in the Feed Department, Mike
Tonche, was replaced by interim supervisor Filiberto Polanco. Polanco also
served as the supervisor of Cargill’s Mill Department. In these dual roles,
Polanco had the authority to discipline Cargill staff. Both Tonche and Polanco
reported to Feedlot Area Manager Pat O’Connell.
      Tonche, then Polanco, held regular morning meetings with the Feed
Department staff. In these meetings, the supervisor would ask the feeder-truck
drivers how they were doing and whether they had encountered any problems
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with their feeder trucks or with the cattle. Cargill management viewed the
upkeep of the feeder trucks as “absolutely critical,” as each truck cost
approximately $200,000.
      On June 25, 2012, Polanco held a Feed Department morning meeting.
Salazar attended this meeting alongside several of his colleagues in the Feed
Department, as well as two new Cargill employees, 19-year-old Stephen
Gonzales and 29-year-old Justin Davis. According to Polanco, Gonzales and
Davis had been hired to work in the Mill Department, but Gonzales was
expected to drive a feeder truck “on occasion” to cover Tonche’s former shifts.
During the meeting, Polanco asked each of the feeder-truck drivers whether
they were having any problems with their vehicles. When Polanco posed the
question to Salazar, Salazar “was taking a drink of coffee and was not able to
answer out loud, so [he] shrugged [his] shoulders as a way of indicating ‘no’ to
the question.” Polanco “viewed [Salazar’s] refusal [to answer the question] as
insubordinate, and terminated [Salazar]” on the spot.
      During his twenty-plus years with Cargill, Salazar “ha[d] never seen or
been told about any [company] rule or policy . . . that employees could not
answer questions by nodding or shaking their heads, or by shrugging their
shoulders.” In Salazar’s experience, “it was permissible to answer [Polanco’s]
question in the manner that [he] did,” as he and other employees had “often
responded to questions” nonverbally without repercussions. Additionally,
Salazar was discharged with no prior notice, despite a provision in Cargill’s
disciplinary policy mandating a warning or formal write-up before
termination, absent “serious” circumstances. In fact, this was Salazar’s first
and only disciplinary action of any sort at Cargill.
      Following Salazar’s dismissal, Gonzales—who was thirty-seven years
Salazar’s junior and had no experience operating a feeder truck—assumed


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Salazar’s work duties. Polanco informed O’Connell of Salazar’s termination,
and O’Connell “did not disagree with [Polanco’s] decision.”
      In September 2013, following receipt of a right-to-sue letter from the
Equal Employment Opportunity Commission, Salazar sued Cargill in federal
court, asserting that his termination violated the ADEA. The district court
granted summary judgment for Cargill. The court concluded that although
Salazar had made out a prima facie case of age discrimination, Cargill had
articulated a non-discriminatory reason for its action—namely, Salazar’s
insubordination at the June 25 meeting—and Salazar had failed to raise a
genuine factual dispute as to whether Cargill’s stated explanation was a mere
pretext for discrimination. Salazar timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over Salazar’s ADEA claim pursuant
to 28 U.S.C. § 1331. This Court has jurisdiction to review the district court’s
final judgment under 28 U.S.C. § 1291.
      “We review the grant of summary judgment de novo, applying the same
standard as the district court.” Moss v. BMC Software, Inc., 610 F.3d 917, 922
(5th Cir. 2010). Summary judgment is appropriate “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). A dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party,” and a fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Like the district court, we construe all facts and evidence in the
light most favorable to the nonmovant, and we refrain from making credibility
determinations or weighing the evidence. Haverda v. Hays Cnty., 723 F.3d 586,
591 (5th Cir. 2013).


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                              III. DISCUSSION
      The ADEA prohibits an employer from “discharg[ing] any individual or
otherwise discriminat[ing] against [him] . . . because of [his] age.” 29 U.S.C.
§ 623(a)(1). To establish a claim of age discrimination, “the plaintiff has the
burden of persuasion to show ‘that age was the ‘but-for’ cause of [his]
employer’s adverse action.’” Jackson v. Cal–W. Packaging Corp., 602 F.3d 374,
377 (5th Cir. 2010) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177
(2009)). Where, as here, the plaintiff relies on circumstantial evidence of
discrimination, the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), guides the court’s analysis. Sandstad v.
CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002).
      The plaintiff must first make out a prima facie case of discriminatory
treatment, which, in this context, entails a 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 because of his age.” Jackson, 602 F.3d at 378 (internal quotation
marks omitted). Once the plaintiff sets forth his prima facie case, “the burden
shifts to the employer to provide a legitimate, non-discriminatory reason for
the employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007). If the employer satisfies this obligation—characterized as a burden
of production, not one of persuasion, Sandstad, 309 F.3d at 897—the plaintiff
is “afforded an opportunity to rebut the employer’s purported explanation, to
show that the reason given is merely pretextual,” Moss, 610 F.3d at 922.
      In assessing whether the plaintiff’s rebuttal defeats summary judgment,
“the question is whether the plaintiff has shown that there is a genuine issue of
material fact as to whether [the employer’s expressed] reason was pretextual.”
Id. (alterations and internal quotation marks omitted). “A plaintiff may show
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pretext either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.” Id. (internal
quotation marks omitted). “Evidence demonstrating the falsity of the
defendant’s explanation, taken together with the [plaintiff’s] prima facie case, is
likely to support an inference of discrimination even without further evidence of
[the] defendant’s true motive.” Sandstad, 309 F.3d at 897. Correspondingly,
“the plaintiff can survive summary judgment by producing evidence that
creates a jury issue as to the employer’s discriminatory animus or the falsity
of the employer’s legitimate nondiscriminatory explanation.” Id. Evidence
supporting the plaintiff’s prima facie case, and inferences drawn therefrom,
properly may bear on the pretext inquiry. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 n.10 (1981)).
      The district court held that Salazar made out a prima facie case of age
discrimination, and we agree. Salazar presented evidence that (1) he was
discharged; (2) he was qualified for his position; (3) he was over forty years old;
and (4) he was replaced by someone younger—19-year-old Stephen Gonzales.
      Although Cargill contends that Salazar’s evidence fails to establish the
second and fourth elements of his prima facie case, its arguments are
unavailing.   This   Court   has    held       that   “a   plaintiff   challenging   his
termination . . . can ordinarily establish a prima facie case of age
discrimination by showing that he continued to possess the necessary
qualifications for his job at the time of the adverse action.” Bienkowski v. Am.
Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). “By this,” we explained, “we
mean that plaintiff had not suffered physical disability or loss of a necessary
professional license or some other occurrence that rendered him unfit for the
position for which he was hired.” Id. at 1506 n.3. We later held, as a corollary,
that an ADEA plaintiff “need not show that his performance met [his
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employer’s] expectations to establish a prima facie case”; evidence of employer
dissatisfaction “does not prove a lack of qualifications at the prima facie stage.”
Berquist, 500 F.3d at 350–51. Cargill’s suggestion that Salazar’s alleged
insubordination on June 25, 2012, rendered him unqualified for the feeder-
truck-driver position ignores the evidence to the contrary, such as Salazar’s
unblemished performance record dating back to at least 2007, and cannot be
reconciled with our reasoning in Bienkowski and Berquist.
      As for Salazar’s evidence of his replacement by a younger employee,
Cargill contests the veracity of Salazar’s statements in his deposition and
affidavit that Gonzales took his place. But these averments were founded on
Salazar’s personal knowledge and observations. This competent evidence,
contested by Cargill’s arguments and competing evidence, therefore highlights
the existence of a material factual dispute precluding summary judgment.
      The district court also held, and we again agree, that Cargill carried its
burden to introduce evidence that its decision to terminate Salazar had a
legitimate, nondiscriminatory basis—Salazar’s insubordination during the
June 25, 2012, morning meeting.
      The dispositive issue, therefore, is whether Salazar presented sufficient
evidence to create a genuine dispute of material fact on pretext. The district
court concluded that Salazar’s evidence would not preclude summary
judgment because, in essence, it only disputed Cargill’s characterization of the
events of June 25. “[T]he question here,” it observed, “is not why Salazar did
not answer Polanco’s question, or whether insubordination is a good reason to
fire someone, but whether Polanco truly fired Salazar because of his age”—an
issue on which Salazar was “unable to produce any evidence.”
      This reasoning misapprehends Salazar’s summary-judgment burden.
Salazar needed only to present “[e]vidence demonstrating the falsity of
[Cargill’s] explanation,” coupled with his prima facie case of age discrimination,
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to withstand summary judgment. Sandstad, 309 F.3d at 897. The evidence
before the district court, viewed in the light most favorable to Salazar, meets
this threshold. In addition to the evidence supporting his prima facie case,
Salazar produced sworn testimony that (1) he had worked for Cargill for more
than twenty years without a single disciplinary incident; (2) the conduct for
which he was terminated was routine and, in his experience, had never before
been met with sanction; (3) he was dismissed summarily, without a warning or
a write-up, contrary to Cargill’s ordinary procedures; and (4) the day of his
firing, two new, younger employees began work for Cargill, and one of those
employees assumed his work duties. Regardless of whether Salazar ultimately
will be able to carry his burden of persuasion on pretext, these sworn facts, and
the favorable inferences drawn therefrom, tend to show the falsity of Cargill’s
non-discriminatory explanation at this early stage of the litigation. Accordingly,
the district court erred in granting summary judgment to Cargill.
                              IV. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s judgment
and REMAND the case for further proceedings consistent with this opinion.




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