     Case: 12-30278     Document: 00511944729         Page: 1     Date Filed: 08/03/2012




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

                                                                            FILED
                                                                           August 3, 2012

                                     No. 12-30278                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TILDEN HOLLIDAY,

                                                  Plaintiff–Appellant
v.

COMMONWEALTH BRANDS, INCORPORATED,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-2785


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Tilden Holliday appeals the district court’s grant of
summary judgment to Defendant–Appellee Commonwealth Brands, Inc. (“CBI”)
on his claim under the Age Discrimination in Employment Act (“ADEA”).
Holliday claims that CBI terminated his employment because of his age and
hired someone younger to replace him. The district court determined that even
assuming Holliday had established a prima facie age discrimination claim, he


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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had not shown that CBI’s purported reason for terminating him—his poor
performance—was a pretext for unlawful discrimination. We affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In August 2001, CBI hired Holliday as a Key Account Manager, a position
in CBI’s sales team. Holliday was 48 years old at the time. His direct supervisor
at CBI was Regional Manager Loren Trauth. Trauth reported to Bob Miller, a
Sales Director, who in turn reported to Gary Ebert, Vice President of Sales. An
interoffice memo from Miller to Ebert with a copy to Trauth in June 2003 cited
Holliday’s “very slow” progress and proposed reassigning him to be a Territory
Manager.    The parties dispute whether this reassignment—which became
effective June 30, 2003—was a demotion; Holliday maintains that it was not a
demotion because his salary was not reduced, while CBI claims it was a
demotion based on his poor performance as a Key Account Manager. In any
event, the parties agree that in April 2004, Holliday was promoted to a District
Manager; his direct supervisor remained Trauth. He maintained that position
until he was terminated in April 2008.
      CBI proffers evidence that it claims shows that Holliday had performance
issues throughout his time at CBI. In January 2003, Miller sent Holliday a
letter criticizing him for having improperly reported his activities by indicating
on a log that a client had canceled an appointment when in fact no appointment
had ever been set. The letter stated that if Holliday mislead Miller or Trauth in
that way again it would “lead to further disciplinary action up to and including
termination.” In May 2005, Trauth sent a memo to Holliday, with a copy to
Miller, setting forth in writing guidelines for when and how Holliday was to have
contact with the Territory Managers he supervised. This memo was prompted
by complaints by Territory Managers that Holliday had been contacting them
for non-work-related reasons during business hours, at home, and on weekends.
In February 2006, Trauth sent a memo to Hoke Whitford, who was now

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responsible for supervising Trauth and Holliday, explaining how Holliday had
lied to her and Miller by claiming to have contacted another CBI District
Manager as he had been instructed, when in fact he had not. The memo also
stated that in May, October, and November 2005, Trauth had instructed
Holliday to demonstrate leadership skills to earn the respect of the Territory
Managers he supervised. In March 2006, Trauth sent a memo to Holliday
informing him that, as previously discussed verbally and in writing, his
performance had not been up to CBI’s standards in multiple areas. The memo
gave Holliday 30 days to make improvements in those areas, and stated that
“failure to improve your job performance will result in further disciplinary
action, up to and including termination of employment.”
      CBI performed annual performance appraisals of its District Managers,
which were completed by the supervising Regional Manager, subject to the Sales
Director’s approval. The form used to evaluate District Managers rated a
number of categories from one to five, with five as the highest score. Holliday’s
June 2006 annual review, completed by Trauth, awards Holliday threes in half
the categories and twos and ones in all the others. Holliday’s 2007 annual
review awarded him threes in one-quarter of the categories, twos in more than
half, and ones in the others.
      According to Holliday, these negative reviews and other incidents were
part of a plan developed by Trauth to get him fired and have him replaced with
someone younger. This plan, Holliday maintains, is evident from a number of
age-related comments Trauth made to Holliday and others beginning in early
2006. After Holliday had trouble with a computer program, for example, Trauth
said to him: “Why can’t you grasp this?”; “You don’t understand”; You just don’t
understand this, do you?”; and “Well, maybe you need to retire.” Holliday claims
that Trauth referred to him and a Territory Manager as “you two old men” in
late 2006, and described the Territory Manager to Holliday as “too old to grasp

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the CBI hookup and too old to grasp to do a route list on his own. And it looks
like he might be getting Alzheimer’s.” Holliday further alleges that Trauth told
him he was “just getting too old for this job” twice, once after Holliday was
unable to move a fully-stocked soda machine and again after he asked Trauth
for a water break while “doing a reset,” which he claimed was a “very strenuous”
process. Finally, Trauth told Ray Ozmont, a Territory Manager supervised by
Holliday, on more than one occasion that Holliday was an old man and too old
for his job, and Trauth criticized Holliday’s preparation of a report reviewing
Ozmont’s performance, saying that Holliday was “not grasping this. You’re
getting old.”
      In December 2007, Ozmont heard from a coworker that Trauth had
promised Holliday’s job to Mina Hernandez.        Hernandez was a Territory
Manager supervised by Holliday, and Holliday alleges that Trauth and
Hernandez were very close. Also in December 2007, Hernandez submitted a
three-page, type-written complaint to Whitworth, detailing a history of trouble
getting along with Holliday, and claiming that Holliday had spread rumors that
she and Trauth were romantically involved. Hernandez’s complaint prompted
a January 2008 letter from Whitworth to Holliday that listed five “items of
concern”: (1) Holliday’s poor working relationship with Trauth; (2) Holliday’s
poor communication with the Territory Managers he supervised; (3) Holliday’s
unfair and inconsistent treatment of employees; (4) Holliday’s discussion of
personnel information about past employees; and (5) allegations that Holliday
had made “personal sexual comments” about CBI employees. Whitworth met
with Holliday to deliver the letter, and followed up with an email the next day
outlining further issues with Holliday’s job performance.
      In March 2008, Whitworth received from Trauth another report that
Holliday’s job performance had not improved, that his communication with
Trauth and his Territory Managers had not improved, that he was not effectively

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training his Territory Managers, and that he had discussed confidential
personnel information with one of his Territory Managers. In the middle of
April 2008, Holliday received a negative interim performance review from
Trauth. On April 21, 2008, Whitworth wrote a letter to Holliday detailing
Holliday’s lack of improvement on any of the “items of concern” outlined in
Whitworth’s January letter to Holliday. This April letter concluded: “It is my
determination that [Human Resources Manager] Bonita McIntyre and myself
terminate Mr. Holliday’s employment on 4-28-08.” Whitworth, McIntyre, and
Russ Mancuso—the new Vice President of Sales—met with Holliday on April 28
to inform him that he was being terminated based on his failure to improve his
job performance. CBI replaced Holliday with Ozment, who was 42 years old at
the time he was promoted.
       After receiving a right-to-sue letter from the Equal Employment
Opportunity Commission, Holliday brought suit against CBI in the United
States District Court for the Eastern District of Louisiana, alleging claims under
the ADEA and Louisiana state law. The district court granted CBI’s motion for
summary judgment on all of Holliday’s claims. Holliday timely appealed,1
raising only his claim under the ADEA.
             II. JURISDICTION AND STANDARD OF REVIEW
       We have jurisdiction under 28 U.S.C. § 1291. We review a grant of
summary judgment de novo, applying the same legal standard as the district
court. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011). “A

       1
         We disagree with CBI that Holliday’s appeal should be summarily rejected due to his
technically appealing from the district court’s order denying Holliday’s motion to alter or
amend the summary judgment. Although Holliday did not comply with Federal Rule of
Appellate Procedure 3(c), this court is lenient in interpreting notices of appeal, maintaining
“a policy of liberal construction . . . where the intent to appeal an unmentioned or mislabeled
ruling is apparent and there is no prejudice to the adverse party.” In re Blast Energy Servs.,
Inc., 593 F.3d 418, 424 n.3 (5th Cir. 2010) (internal quotation marks omitted). It is apparent
from the briefing that Holliday intended to appeal the entire case and that CBI has not
suffered prejudice.

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summary judgment motion is properly granted only when, viewing the evidence
in the light most favorable to the nonmoving party, the record indicates that
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Barker v. Halliburton Co., 645 F.3d
297, 299 (5th Cir. 2011).
                              III. DISCUSSION
      Under the ADEA, “[i]t shall be unlawful for an employer to . . . discharge
any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). To
prevail, a plaintiff may use direct or circumstantial evidence to prove that “age
was the ‘but-for’ cause of the employer’s” discharge decision. Gross v. FBL
Financial Servs., Inc., 557 U.S. 167, 177 (2009). Where, as here, a plaintiff
provides no direct evidence of age discrimination, we apply the familiar
McDonnell Douglas burden-shifting framework. See Moss v. BMC Software,
Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)).
      Under that framework, a plaintiff must first establish a prima facie case
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 v. Cal-Western
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).         The only element of
Holliday’s prima facie case disputed by CBI is that Holliday was qualified for the
position. Because “a plaintiff challenging his termination or demotion 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. American Airlines, Inc., 851 F.2d 1503, 1506 (5th
Cir. 1988), and Holliday “had not suffered physical disability or loss of a
necessary professional license or some other occurrence that rendered him unfit

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for the position for which he was hired,” id. at 1506 n.3, we determine that
Holliday met his prima facie burden on this element.
       Once a plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for terminating
the plaintiff. See Moss, 610 F.3d at 922. Holliday does not dispute that CBI has
satisfied its burden; CBI maintains that it terminated Holliday because of “his
persistent unsatisfactory performance.”
       Once an employer articulates a legitimate, non-discriminatory reason, the
burden shifts back to the plaintiff to “rebut the employer’s purported
explanation, to show that the reason given is merely pretextual.” Id. “A plaintiff
may show 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). “But a reason cannot be proved to be a
‘pretext for discrimination’ unless it is shown both that the reason was false, and
that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993).
       Holliday’s only evidence that age discrimination was the real reason for
his termination are Trauth’s comments. Holliday concedes that Trauth did not
have actual authority over CBI’s decision to terminate him, but relies on
Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003), in arguing
that age-related remarks by someone other than the formal decision-maker are
probative of the employer’s discriminatory intent if that person is in a position
to influence the decision. Assuming that this “cat’s paw” theory of liability is
available under the ADEA,2 it is not appropriate here. Holliday has not offered


       2
         Although we have recognized this “cat’s paw” theory of liability under the ADEA, it
is entirely unclear whether our decisions remain good law in the wake of Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), and Staub v. Proctor Hospital, 131 S. Ct. 1186
(2011). Staub recognized “cat’s paw” liability under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”). 131 S. Ct. at 1194. In so holding, the Court construed

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any evidence showing that Trauth had “influence or leverage” over Whitworth,
McIntire, or Mancuso—the CBI employees who made the decision to terminate
Holliday. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.
2000). The record is unequivocal that Whitworth independently investigated
any complaints about Holliday’s performance and communicated directly with
Holliday about improving his performance. Whitworth only determined that
Holliday’s employment should be terminated after Holliday failed to improve his
performance in response to a letter from Whitworth.                        As Holliday has no
evidence that Whitworth possessed any discriminatory motive, nor any evidence
that Whitworth was influenced or leveraged by Trauth,3 he has failed to sustain
his burden of showing that CBI’s purported reason for terminating him was
pretextual. Thus, the district court appropriately granted CBI’s motion for
summary judgment.
                                     IV. CONCLUSION
       For the foregoing reasons, the district court’s summary judgment in favor
of CBI is affirmed.
       AFFIRMED.




the phrase “motivating factor in the employer’s action,” which is in the texts of USERRA and
Title VII. Id. at 1190–91. That phrase is not, however, in the text of the ADEA, and
specifically because the ADEA does not include that phrase, the Court in Gross held that
plaintiffs could not proceed under a “mixed motive” theory in ADEA cases. See 557 U.S. at
174–78. Because the “motivating factor” phrase is not in the ADEA, and because the Court
construed that phrase in recognizing “cat’s paw” liability under USERRA, and finally, because
the Court has focused closely on the text of the antidiscrmination statutes in authorizing
theories of liability, it could very well be that our prior recognition of “cat’s paw” liability under
the ADEA was incorrect.
       3
         Also unavailing is Holliday’s attempt to show pretext by arguing that CBI could not
have actually terminated him for poor performance because sales had increased during his
tenure as District Manager. The record is clear that CBI’s complaints about Holliday’s
performance were related to his unprofessional behavior and poor management, not his lack
of sales acumen.

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