     Case: 09-20411   Document: 00511039668   Page: 1   Date Filed: 03/02/2010




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

                                                FILED
                                                                March 2, 2010

                                  No. 09-20411              Charles R. Fulbruge III
                                                                    Clerk

L. WAYNE JACKSON,

                                     Plaintiff–Appellant,
v.

CAL-WESTERN PACKAGING CORPORATION,

                                     Defendant–Appellee.




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before SMITH, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
        Wayne Jackson appeals the district court’s grant of summary judgment on
his age discrimination claims under the Age Discrimination in Employment Act,
29 U.S.C. §§ 621-634. For the following reasons, we affirm.


                                        I
        Jackson was employed by Cal-Western Packaging Corporation in various
managerial positions from 1999 until June 2007. In May 2007, one of Jackson’s
coworkers, Karen Hopper, emailed her supervisor, Cal-Western Controller
James Rosetti, asserting that Jackson had been engaging in behavior that made
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                                 No. 09-20411

her “uncomfortable.”    She explained that Jackson had asked to see her
“[breasts]” and had commented that her boyfriend must like “big boobs.” She
stated that Jackson had “on many occasions” made inappropriate statements or
comments in front of her and her female coworkers. In addition, she told her
supervisor that every time she saw Jackson he tried to touch her and that he
had once cornered her and asked her to raise her shirt. Rosetti then informed
Chief Operating Officer Jimmy Phelps of Jackson’s behavior. Phelps began an
internal investigation and interviewed several employees who corroborated the
allegations. To confirm the findings, Phelps hired an attorney, Victoria Phipps,
to conduct an external investigation into Jackson’s behavior. Her interviews
with both male and female coworkers confirmed the harassment allegations.
And when Phipps interviewed Jackson, he admitted that he was “vindictive” and
would try “legally” to get back at those making allegations against him.
      In June 2007, Phelps terminated Jackson for his non-compliance with the
company’s sexual harassment policy, which Jackson had signed when he was
hired in 1999. Jackson was sixty-nine years old when he was terminated. He
was replaced by Monte Duke, who was forty-two at the time.
      Jackson brought suit against Cal-Western for age discrimination. His
claim primarily relied on a remark Phelps allegedly made to another coworker
in 2006 that Jackson was an “old, gray-haired fart” and that the coworker would
be in charge when Jackson retired. Cal-Western moved for summary judgment.
The district court ruled that Jackson had alleged a prima facie case of
discrimination   and   that   Cal-Western   had   offered   a   legitimate,   non-
discriminatory reason for firing him, but that Jackson had failed to show that
there was a fact issue as to whether Cal-Western’s reason for firing him was
pretextual. Jackson argues on appeal that the district court decided factual
issues at the summary judgment stage and improperly relied on incompetent
summary judgment evidence in its ruling.

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                                              II
      Jackson first challenges the district court’s reliance on several sworn,
notarized affidavits tendered by Cal-Western as summary judgment evidence.
Jackson argues that the affidavits are not competent summary judgment
evidence since they do not state that they were sworn to be “true and correct.”
      Jackson’s argument is without merit. The cases on which he relies all
relate to unsworn affidavits. None of the statements at issue in this case were
unsworn. Additionally, we have expressly held that “there is no requirement
that sworn affidavits have a statement that the contents are ‘true and correct.’”1
“Sworn affidavits . . . are certainly appropriate for review on a Rule 56 motion
for summary judgment.” 2 Accordingly, the district court properly relied on the
sworn affidavits.
                                              III
      We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.3 We view the evidence in the light most
favorable to the non-moving party and avoid credibility determinations and
weighing of the evidence.4           Summary judgment is appropriate when the
competent summary judgment evidence demonstrates that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter
of law.5 An issue of material fact is genuine if a reasonable jury could return a
verdict for the nonmovant.6


      1
          DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005).
      2
          E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007).
      3
          Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
      4
          Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002).
      5
          Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
      6
          Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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                                        No. 09-20411

       In employment discrimination cases, a plaintiff may rely on direct or
circumstantial evidence, or both.7 If a plaintiff relies on circumstantial evidence,
the burden-shifting test outlined in McDonnell Douglas v. Green 8 applies. But
if there is direct evidence of employment discrimination, the McDonnell Douglas
test is inapplicable.9 In such a case, the plaintiff must produce direct evidence
that “discriminatory animus played a role in the decision at issue.”10 Defendants
can rebut direct evidence “only by showing by a preponderance of the evidence
that they would have acted as they did without regard to the plaintiff’s [age].” 11
       Jackson argues that Phelps’s purported comment that he was an “old,
gray-haired fart” is direct evidence of age discrimination. But since Jackson did
not make this argument in his response to summary judgment before the district
court, he is precluded from raising it on appeal.12 Moreover, the comment is not
direct evidence of discrimination. As we will discuss further infra, Jackson has
not shown that the comment was proximate in time to the termination or related
to the employment decision, and thus the comment cannot qualify as direct
evidence.13 Accordingly, we will consider Jackson’s claim under the McDonnell
Douglas burden-shifting analysis.




       7
           Sandstad, 309 F.3d at 896.
       8
           411 U.S. 792 (1973).
       9
           See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
       10
         Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (quoting Sandstad,
309 F.3d at 896).
       11
          Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990) (internal quotation marks and
citation omitted).
       12
            See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002).
       13
            See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003).

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       Under the McDonnell Douglas approach, a plaintiff must first demonstrate
a prima facie case of age discrimination.14 The defendant then has the burden
of articulating a legitimate, non-discriminatory reason for terminating the
plaintiff.15       If the defendant meets this burden, the presumption of
discrimination dissipates.16 Plaintiff then has the ultimate burden of proving
intentional discrimination.17 Thus on summary judgment, the plaintiff must
show that there is a genuine issue of material fact regarding either (1) whether
defendant’s reason was pretextual or (2) whether defendant’s reason was only
one reason for the conduct and another motivating factor was plaintiff’s
protected characteristic.18 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.’”19
       To establish a prima facie case of age discrimination, “a plaintiff must
show 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.” 20 The parties do not
dispute that Jackson has alleged a prima facie case of age discrimination since



       14
            Machinchick, 398 F.3d at 352.
       15
            Id.
       16
            Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       17
            Id.
       18
            Machinchick, 398 F.3d at 352.
       19
         Laxton, 333 F.3d at 578 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 US.
133, 143 (2000)).
       20
        Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (internal quotation
marks and citation omitted).

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                                         No. 09-20411

he was terminated, qualified, forty years or older (and thus within the class
protected by the ADEA),21 and replaced by someone substantially younger.22
       Nor do they dispute that Cal-Western has articulated a legitimate, non-
discriminatory reason for his termination with its explanation that Jackson was
fired for sexual harassment. The question is whether Jackson has shown that
there is a genuine issue of material fact as to whether this reason was pretextual
or whether age was otherwise a factor in Jackson’s termination.
       Jackson asserts that the evidence in the record creates a factual issue as
to whether Cal-Western’s proffered reason was pretextual. Specifically, he
points to: (1) his own statements that he had not made sexually harassing
comments; (2) Phelps’s purported statement that he was an “old, gray-haired
fart,” (3) evidence that Cal-Western did not discipline younger employees who
engaged in similar commentary and/or emails, and (4) a coworker’s statement
that she did not perceive his alleged comments as sexual harassment.
       Jackson’s self-serving statements that he did not commit sexual
harassment are insufficient to create a triable issue of fact as to whether Cal-
Western’s explanation is false. In cases in which an employer discharges an
employee based on the complaint of another employee, the issue is not the truth
or falsity of the allegation, but “whether the employer reasonably believed the
employee’s allegation and acted on it in good faith.” 23 Cal-Western was faced
with a multitude of evidence that Jackson was violating the company’s sexual
harassment policy. The evidence came from several employees, both male and
female, and stemmed from both an internal and external investigation of


       21
            See 29 U.S.C. § 631(a) (protecting individuals “who are at least 40 years of age”).
       22
         See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (explaining
that replacement by someone “substantially younger” can be an indicator of age
discrimination).
       23
            Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993).

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                                         No. 09-20411

Jackson’s behavior. Jackson has presented no evidence as to why the company’s
reliance on the evidence against him was in bad faith. His own conclusory
assertion that he did not behave inappropriately is irrelevant, since he has
provided no evidence to suggest that Cal-Western’s decision to trust the results
of the two investigations, rather than his self-serving denial of wrongdoing, was
unreasonable or in bad faith.24 Jackson’s assertion of innocence alone does not
create a factual issue as to the falsity of Cal-Western’s proffered reason for
terminating him.25
       Jackson’s assertions that Cal-Western did not discipline younger
employees who engaged in similar behavior and that Jackson’s coworker stated
that his behavior did not amount to sexual harassment cannot be used to
establish triable issues of fact since he did not make these assertions in the
district court or refer to any evidence to this effect.26 (Nor does he refer to any
evidence of this nature in his brief to this court.) We have explained that “Rule
56 does not impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment.” 27



       24
          See id. at 1166. (explaining that, since bad faith is the issue, “[t]o the extent that
Waggoner’s summary judgment evidence relates to his innocence of the sexual harassment
charge, it is irrelevant”).
       25
          Cf. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (concluding that self-
serving statements were insufficient to overcome summary judgment, particularly when faced
with “overwhelming evidence” in opposition); United States v. Lawrence, 276 F.3d 193, 197
(5th Cir. 2001) (affirming summary judgment for the plaintiff when defendant’s only evidence
in opposition was his own “self-serving allegations”); BMG Music v. Martinez, 74 F.3d 87, 91
(5th Cir. 1996) (explaining that a “conclusory, self-serving statement” by defendant was
insufficient to create a triable issue of fact).
       26
           See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (stating that “[w]hen
evidence exists in the summary judgment record but the nonmovant fails even to refer to it
in the response to the motion for summary judgment, that evidence is not properly before the
district court”).
       27
            Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).

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Because Jackson did not identify any such evidence in his opposition to
summary judgment, we will not consider his argument in this regard.
       Finally, we turn to Phelps’s alleged comment. In his deposition, Jackson
stated that coworker Donnie Sheets “told me one day in his office that [Phelps]
had told him that he was going to be in charge of all the plants when that old,
gray-haired fart retired, meaning me.”28 Jackson said that Sheets made this
comment to him “a couple of times,” but he did not discuss whether Phelps made
the comment to Sheets on more than one occasion. The district court concluded
that Phelps’s statement was a “stray remark.”
       We have explained that comments are only evidence of discrimination if
they are “1) related to the protected class of persons of which the plaintiff is a
member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment decision
at issue; and 4) related to the employment decision at issue.” 29 Comments that
do not meet these criteria are considered “stray remarks,” 30 and standing alone,
are insufficient to defeat summary judgment.31




       28
         Phelps and Sheets have both denied that Phelps made such a comment, but since we
do not make credibility determinations at the summary judgment stage, their denials are
irrelevant.
       29
          Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000)
(internal brackets and quotation marks omitted).
       30
         We have explained that this circuit’s stray remarks doctrine survived the Supreme
Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). See
Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (noting that a post-
Reeves decision by which we are bound, Rubinstein, 218 F.3d 392 (5th Cir. 2000), interpreted
Reeves not to overrule the stray remarks doctrine); cf. Russell v. McKinney Hosp. Venture, 235
F.3d 219, 229 (5th Cir. 2000) (explaining that we should view the stray remarks doctrine
“cautiously” after Reeves).
       31
         Rubinstein, 218 F.3d at 401; see also Waggoner v. City of Garland, 987 F.2d 1160,
1166 (5th Cir. 1993) (“[A] mere ‘stray remark’ is insufficient to establish age discrimination.”).

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       While Phelps’s alleged comment meets the first and third criteria, Jackson
has provided no evidence that the comment was proximate in time to his firing
or related to the employment decision at issue. Jackson maintains that Sheets
told him of Phelps’s comment on a visit to Memphis in the summer of 2006, but
it is unclear when Phelps actually made the comment. Still, even assuming that
the comment was made soon before Sheets reported it to Jackson, it was made
about a year before Jackson’s June 2007 termination. The comment appears
wholly unrelated to Jackson’s termination, and Jackson has not presented any
evidence to show otherwise.
       This comment alone, or in combination with Jackson’s uncorroborated
denial of any sexual harassment, is insufficient to establish a triable issue of fact
as to pretext.32 The overwhelming evidence shows that Jackson was fired for
violation of Cal-Western’s sexual harassment policy, and Jackson’s only evidence
to the contrary comes from his own assertions. Without more, we simply cannot
conclude that there is a triable issue of fact as to whether Cal-Western
discriminated against Jackson based on age.


                                       *        *         *
       Because no genuine issue of material fact exists as to Jackson’s claim
under the ADEA, we AFFIRM the district court’s grant of summary judgment
for Cal-Western.


       32
          See Auguster, 249 F.3d at 405 (holding that a comment made nearly a year before the
adverse employment decision that appeared unrelated to the decision was a stray remark); see
also Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002) (holding that
a comment made two or more years before the employment decision at issue, that was
unrelated to the decision, was not evidence of discrimination); Wallace v. Methodist Hosp. Sys.,
271 F.3d 212, 222 (5th Cir. 2001) (stating that “where comments are vague and remote in time
they are insufficient to establish discrimination” (internal brackets and quotation marks
omitted)); Rubinstein, 218 F.3d at 401 (concluding that comments were stray remarks when
plaintiff had failed to offer evidence that they were proximate in time or related to his failure
to receive a raise or a promotion).

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