   Case: 11-40013          Document: 00511743116             Page: 1      Date Filed: 01/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                      FILED
                                                                                   January 31, 2012
                                            No. 11-40013
                                                                                     Lyle W. Cayce
                                                                                          Clerk



BETTY B. FULLER,

                                                         Plaintiff-Appellee,

versus

SECRETARY OF DEFENSE LEON E. PANETTA,

                                                         Defendant-Appellant.




                     Appeal from the United States District Court
                           for the Eastern District of Texas
                                    No. 5:06-CV-91




Before SMITH, PRADO, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


        Betty Fuller was employed by the Department of Defense as a supply clerk
and, at about age 63, was passed over for a promotion to supply technician. She
sued under the Age Discrimination in Employment Act, claiming that she was


        *
          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 R. 47.5, the court has determined that this opinion should not be published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. 11-40013

denied promotion because of age. The district court found that age was a moti-
vating factor in the decision and awarded damages with interest. The Secretary
of Defense appeals, claiming (1) that the evidence was insufficient to find that
age was a motivating factor; (2) that the court erred by allowing Fuller to prevail
on a mixed-motives theory; and (3) that interest should not have been awarded.
We agree with the Secretary that there was insufficient evidence to find that age
was a motivating factor, so we reverse without reaching the Secretary’s other
arguments.
      Reon Hall, chief of the distribution-support division, interviewed Fuller for
the supply-technician position in 2004 and found her to be unfocused and to have
difficulty relating her experience to the job she was applying for. Midway
through the interview, Fuller even asked what exactly she was applying for.
Instead of Fuller, Hall chose Julie Metcalf, 38, who had been the backup to the
person who had previously held the job and had temporarily held the position
until it could be filled permanently.
      Doug Field, 58, supervised Fuller when she was a supply clerk but did not
have authority over hiring for the supply-technician position. Patsy Smith was
a coworker and friend of Field’s who often socialized with him outside of work.
At some point—it is not certain when—Field remarked to Fuller, after Smith’s
husband died, that Smith was “older” and should “go on home” to be with her
family. The court later found that that remark “reflect[ed] [Field’s] belief that
certain long-term employees who were older needed to ‘go on home.’” That is the
only evidence the court cites to support its finding that age was a motivating
factor in the employment decision. Because that evidence was insufficient for
a finding of liabilitySSeven on a mixed-motives theory—we reverse without
reaching the question whether a mixed-motives theory is ever appropriate in the
wake of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).
      To be probative of discrimination, a remark must be “(1) related [to the

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                                    No. 11-40013

protected class of persons of which the plaintiff is a member]; (2) proximate in
time to the [employment decision]; (3) made by an individual with authority over
the employment decision at issue; and (4) related to the employment decision at
issue.” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996). If a remark
does not meet all those criteria, it is considered a “stray remark” and cannot be
used to demonstrate discrimination. This remark fails under the third and
fourth prongs.
      Field’s statement was not made by an individual with authority over the
employment decision and was therefore a stray remark. Field was Fuller’s
supervisor, but the parties do not dispute that the employment decision was
entirely up to Hall. The court found the remark was nevertheless probative,
because it was reasonable to infer that a hiring official would have some contact
with an employee’s direct supervisor. Even if, however, Field and Hall had dis-
cussed Fuller’s qualifications, mere contact does not mean that the remark
becomes attributed to Hall. Nor does contact with the person who had authority
over the decision give Field authority over it. The remark was plainly not “made
by an individual with authority over the employment decision.” Id. (emphasis
added).
      Furthermore, the remark fails the fourth requirement of Brown, because
the context of the remark had nothing to do with this or any other employment
decision. Field’s statement was related to Field’s opinion about what would be
best for his friend’s family after her husband’s death. Because the observation
was not related to the employment decision, it was a stray remark and cannot
be evidence of discrimination as a matter of law. Id.
      Fuller cites Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000), for the proposition that a plaintiff may establish liability by showing that
a vacancy occurred for which the plaintiff was qualified, but the plaintiff was
passed over in favor of a younger person, combined with evidence casting doubt

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                                   No. 11-40013

on the veracity of the employer’s justification for the decision (pretext). That
argument fails, however, because the district court explicitly found that “Fuller
has not shown that the defendant’s reasons were pretextual.” Therefore, the evi-
dence is insufficient to find that Fuller’s age was a motivating factor.
      The judgment is REVERSED and RENDERED in favor of the Secretary.




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