     Case: 11-10254     Document: 00511587509         Page: 1     Date Filed: 08/30/2011




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

                                                                            FILED
                                                                          August 30, 2011

                                     No. 11-10254                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILLA M. BELLARD,

                                                  Plaintiff - Appellant
v.

JPS HEALTH NETWORK,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-693


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant, Willa Bellard, appeals the district court’s decision to
grant JPS Health Network’s motion for summary judgment on her age
discrimination claim. We AFFIRM.
                I. FACTUAL & PROCEDURAL BACKGROUND
        Willa Bellard was employed by JPS Health Network (“JPS”) as a Licensed
Vocational Nurse (“LVN”) at its South Campus Health Clinic (“South Campus”).


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Bellard worked on a three-person medical team that assisted Dr. Isaac
Watemberg.     While Bellard was on medical leave, Dr. Watemberg was
transferred to a different medical clinic, and he was not replaced. On January
20, 2009, approximately three weeks after returning from medical leave, Bellard
was informed that her LVN position with Dr. Watemberg had been eliminated
because of his transfer. Bellard was temporarily assigned to a “floating” LVN
position—which meant she was not assigned to a specific physician or
clinic—with the same salary and benefits for thirty days.          Bellard was
encouraged to apply for other permanent LVN positions at JPS, including the
floating LVN position. She was also offered a severance package if she did not
apply for a permanent position with JPS before February 23, 2009. Bellard did
not apply for any positions with JPS, and, on February 16, 2009, she resigned.
      After filing a complaint with the EEOC and receiving a right-to-sue letter,
Bellard commenced this lawsuit against JPS in federal district court. In her
complaint, Bellard alleged that JPS forced her to resign because of her age in
violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623
(“ADEA”). JPS moved for summary judgment on her claim, which the district
court granted. Bellard appealed.
                        II. STANDARD OF REVIEW
      This court “review[s] the grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party.” Cerda v. 2004-
EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper
“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).




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                                   No. 11-10254

                               III. DISCUSSION
        Under the ADEA, it is unlawful for an employer to “discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff bringing an ADEA claim
“must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged employer
decision.” Gross v. FBL Fin. Servs., Inc., — U.S. —, 129 S. Ct. 2343, 2351 (2009).
On appeal, Bellard claims that she was discriminated against on the basis of her
age because she was forced to reapply for a position with JPS, rather than being
automatically transferred to a permanent LVN position after her position on Dr.
Watemburg’s team was eliminated. Bellard supports this claim with direct and
circumstantial evidence.
A.      Direct Evidence of Age Discrimination
        Bellard argues that comments made by the manager of South Campus,
Jodi Outland, serve as direct evidence of age discrimination. For an “age-based
comment to be probative of an employer’s discriminatory intent, it must be direct
and unambiguous, allowing a reasonable jury to conclude without any inferences
or presumptions that age was an impermissible factor in the decision to
terminate the employee.” Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5th
Cir. 2010) (citation and internal quotation marks omitted).
        Bellard first alleges that, at a staff meeting approximately ten to eleven
months before she resigned, Outland made comments about the length of some
employees’ tenure at South Campus and said that would change. For example,
a co-worker, who was present at the meeting, testified that Outland stated that


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“all the old people had to go.” Outland’s comment was not proximate in time to
the alleged age-based discrimination, was not directed specifically at Bellard,
and was not made in the context of the decision to require Bellard to apply for
LVN positions with JPS. Therefore, this comment “cannot qualify as direct
evidence.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377, 380 (5th
Cir. 2010) (comment made approximately one year prior to termination was not
direct evidence of discrimination because it was not proximate in time and was
unrelated to the termination); see also Berquist v. Wash. Mut. Bank, 500 F.3d
344, 352 (5th Cir. 2007) (comment made six months prior to termination was not
probative of discriminatory intent because it was “remote in time from
[plaintiff’s] firing” and was a “broad statement not directed to any particular
employee”).
      As further direct evidence of discrimination, Bellard alleges that Outland
repeatedly told other employees at South Campus that they could not talk to her
in a certain way or tell her how to manage South Campus “just because they
were older.” These comments fall far short of direct evidence of discrimination.
They were not made to Bellard and were not made in the context of an
employment decision involving Bellard or any other employee. In short, a jury
could not, based on these comments, “conclude without any inferences or
presumptions that age was an impermissible factor in the decision to terminate
[Bellard].”   Moss, 610 F.3d at 929 (citation and internal quotation marks
omitted).     Therefore, Outland’s comments are not direct evidence of
discrimination, and Bellard must prove her claim through circumstantial
evidence.




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B.      Circumstantial Evidence of Age Discrimination
        Bellard also argues that, based on circumstantial evidence, Outland’s
decision to not transfer her automatically was discriminatory.                         Under the
burden-shifting framework that governs ADEA claims based on circumstantial
evidence, the plaintiff must first establish a prima facie case of age
discrimination,1 “at which point the burden shifts to the employer to provide a
legitimate, non-discriminatory reason for the employment decision.” Moss, 610
F.3d at 922 (citation and internal quotation marks omitted). “If the employer
articulates a legitimate, non-discriminatory reason for the employment decision,
the plaintiff must then be afforded an opportunity to rebut the employer’s
purported explanation.” Id. Assuming, arguendo, that Bellard has established
a prima facie case of age discrimination, she has not rebutted JPS’s legitimate,
non-discriminatory reason for the adverse employment action, i.e., that her LVN
position was eliminated and she was required to apply for another permanent
LVN position.
        As proof of discrimination, Bellard claims that Outland transferred
Angelica Mendez, a younger employee who also worked on Dr. Watemburg’s
team, to another doctor without requiring Mendez to apply for the position. A
plaintiff who attempts to prove discrimination through disparate treatment
“must show ‘nearly identical’ circumstances for employees to be considered
similarly situated.” Berquist, 500 F.3d at 353. Bellard’s circumstances were not



       1
         A prima facie case of age discrimination under the ADEA requires the plaintiff to
prove: (1) she is within the protected class; (2) she is qualified for her position; (3) she suffered
an adverse employment decision; and (4) she was “treated less favorably than similarly
situated younger employees (i.e., suffered from disparate treatment because of membership
in the protected class).” Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003).

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nearly identical to Mendez’s. The evidence in the record demonstrates that,
unlike Bellard, Mendez applied for her new position. Moreover, the record
shows that JPS employees were required to apply for transfers if the transfer
involved a change in position and cost center, and Outland transferred
employees without an application only if the “hours and stuff were the same.”
But Bellard desired a transfer involving a change in position, cost center, and
schedule. The schedule change would require Bellard to work significantly
longer shifts and work on Saturdays, a day on which she occasionally had
scheduling conflicts. Accordingly, Bellard may not rely on Mendez’s transfer to
another team as evidence of age discrimination. See Berquist, 500 F.3d at 353.
       Bellard also points to the fact that a younger employee, Amanda Davis,
was hired for a vacant LVN position at South Campus as evidence that JPS
discriminated against her because of her age. Bellard was aware that JPS was
seeking applications for that vacancy while she was working as a “floating” LVN
but did not check the posting or apply for the position. Davis did. Thus, the fact
that a younger employee was hired for the LVN position is not evidence of
discrimination based on age.2




       2
          Bellard alleges that three other positions held by employees over the age of forty-five
were “eliminated” over the course of an unspecified time period. But she does not argue that
this is additional evidence that her failure to be automatically transferred was discriminatory.
See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“It is not enough to merely
mention or allude to a legal theory.”). Nor is this allegation evidence of discrimination in this
case. One of the employees transferred from South Campus to another JPS facility. The only
competent summary judgment evidence in the record demonstrates that the other two
employees were terminated from South Campus for performance-related issues.

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                              No. 11-10254

                           IV. CONCLUSION
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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