     Case: 14-20616      Document: 00513032144         Page: 1    Date Filed: 05/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20616                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JAMES HINGA,                                                                 May 6, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

MIC GROUP, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CV-414


Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       James Hinga appeals the district court’s grant of summary judgment in
favor of his former employer, MIC Group, LLC (“MIC”) on his Age
Discrimination in Employment Act (“ADEA”) claim brought after his
employment was terminated. Because Hinga has not established a prima facie
case of discrimination by identifying similarly situated, younger employees
who were not discharged, we AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                      I. FACTS AND PROCEEDINGS
A. Factual Background
      Hinga began working as a machinist for MIC’s predecessor in 2003. MIC
assembles and sells actuators—industrial units used to control the flow of
liquids and gasses. The specific product forming the basis for this lawsuit is
the NEMA 7 actuator. A NEMA 7 actuator complies with National Electrical
Manufacturers Association (“NEMA”) standards, making it appropriate for use
in hazardous conditions. One NEMA standard requires the portion of the top
casing that meets the bottom to be “lapped,” or flattened, to within .001 inches
of level, and the corresponding portion of the bottom casing must be lapped to
within .002 inches of level. This standard limits the size of a seam through
which a spark may escape and ignite volatile gas in the surrounding
environment.
      In October 2010, a distributor of MIC’s NEMA 7 actuators informed MIC
that a batch of actuators had failed an inspection of the lapping tolerances.
After an investigation, MIC recalled 662 actuators, including all those
produced between June 1, 2010 and October 7, 2010. MIC employees inspected
hundreds of actuators that were returned to MIC and found lapping violations
in all of them. MIC estimated the cost of the recall to be at least $194,000.
      MIC’s subsequent investigation identified two individuals responsible
for the recall: Hinga, for lapping the defective parts and not discovering that
they failed the lapping tolerances, and Joel Watts, an employee in the Final
Assembly department, for failing to properly inspect the parts. Hinga and
Watts were given the option of resigning instead of being terminated, an option
both accepted. Hinga was 76 years-old at the time of the events at issue.
      MIC’s investigation resulted in an Improvement Action Report. The
Report determined that the root cause of the recall was that the lapping
machine was not properly maintained and had no preventative maintenance
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schedule or surface quality inspection schedule. The investigation found that
a contributing factor was Hinga’s failure to inspect parts for flatness despite
representing that he had performed the inspections. Watts’s failure to inspect
and his representation that he had inspected also contributed to the recall. As
a result of the recall and investigation, MIC implemented a formal inspection
procedure—which made clear that machinists were responsible for inspecting
a sample of each lot—and outsourced its lapping department.
B. Proceedings
      On February 15, 2013, Hinga filed a complaint in the United States
District Court for the Southern District of Texas claiming age discrimination
under the ADEA and race and national origin discrimination under Title VII.
On June 13, 2013, the district court granted MIC’s motion to dismiss Hinga’s
race and national origin discrimination claim—because Hinga had not
exhausted administrative remedies—and dismissed his claim for exemplary
damages under the ADEA. 1 On August 29, 2014, the district court granted
MIC’s motion for summary judgment on the ADEA claim. The district court
found that Hinga had not set forth a prima facie case of age discrimination
because he had not produced evidence that younger employees who were not
discharged were similarly situated.               The district court also found,
alternatively, that Hinga did not demonstrate a genuine dispute that MIC’s
proffered reason for his termination was pretextual. Hinga timely appealed.
                                   II. DISCUSSION
A. Standard of Review
      We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).             Summary judgment is


      1   Hinga has not appealed the dismissal.
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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 genuine dispute as to a material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Rogers, 755 F.3d at 350 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). In deciding whether a fact issue exists, courts must view the facts
and draw reasonable inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). “But [s]ummary judgment
may not be thwarted by conclusional allegations, unsupported assertions, or
presentation of only a scintilla of evidence.” Rogers, 755 F.3d at 350 (internal
quotation marks omitted).
      Hinga urges us to adopt a gloss on the summary judgment standard and
hold that “summary judgment should seldom be used in employment-
discrimination cases.” Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994),
abrogated by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011).
Hinga’s argument is meritless. As the Eighth Circuit recognized in overruling
its prior precedent, cases establishing a “different standard of review for
summary judgment in employment discrimination cases are contrary to
Supreme Court precedent.” Torgerson, 643 F.3d at 1043; see also Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (applying the traditional
summary judgment analysis to an ADEA claim).
B. ADEA Framework
      The ADEA makes it unlawful “to discharge any individual . . . because of
such individual’s age.” 29 U.S.C. § 623(a)(1). “Under the ADEA, 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-Western Packaging Corp., 602 F.3d
374, 377 (5th Cir. 2010) (internal quotation marks and citation omitted). A
plaintiff may use circumstantial evidence to show discrimination. See id. This
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court applies the familiar burden shifting framework to claims of age
discrimination based on circumstantial evidence. See id. (citing McDonnell
Douglas v. Green, 411 U.S. 792 (1973)). Hinga must first establish a prima
facie case of age discrimination by showing that he was (1) discharged; (2)
qualified for the position; (3) within the protected class at the time of discharge;
and (4) either (i) replaced by someone outside the protected class; (ii) replaced
by someone younger; or (iii) otherwise discharged because of his age. Id. at
378. If Hinga successfully sets forth a prima facie case, the burden shifts to
MIC to produce a legitimate, nondiscriminatory justification for the discharge.
See Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). If MIC
meets this burden, “the presumption of discrimination created by the plaintiff’s
prima facie case disappears and the plaintiff must meet its ultimate burden of
persuasion on the issue of intentional discrimination . . . by producing evidence
tending to show that the reason offered by the defendant is pretext for
discrimination.” Id. (citations omitted).
C. Prima Facie case
      The parties do not dispute that Hinga has shown the first three elements
of a prima facie case of age discrimination. Hinga was qualified for the position
and older than 40 when he was discharged. See Jackson, 602 F.3d at 378; 29
U.S.C. § 631(a). Hinga contends that he has satisfied the fourth prima facie
element—that he was “otherwise discharged because of his age”—because he
was treated less favorably than “nearly identical, similarly situated
individuals.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir.
2005).
      Hinga argues that three younger employees—Billy Ashorn, Kevin Glenz,
and Ronald Warzon—were similarly situated and committed similar
violations, yet were not discharged. The district court concluded that these
individuals were not proper comparators because they worked in different
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departments, had different responsibilities, and had better disciplinary
histories than Hinga. On appeal, Hinga argues that summary judgment on
this issue was improper and that the district court erred by failing to consider
other factors that he says support a finding that the comparators are similarly
situated.
      To qualify as “similarly situated,” the employees being compared
generally must (1) have had the same job responsibilities; (2) have shared the
same supervisor, or had their employment status determined by the same
person; and (3) have comparable violation histories. See Lee v. Kansas City S.
Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009). A plaintiff must also show that
“conduct that drew the adverse employment decision [was] ‘nearly identical’ to
that of the proffered comparator who allegedly drew dissimilar employment
decisions.” Id. at 260. A comparator need not be entirely identical because
this would impose a requirement that would be “essentially insurmountable.”
Id. But “[i]f the difference between the plaintiff’s conduct and that of those
alleged to be similarly situated accounts for the difference in treatment
received from the employer, the employees are not similarly situated for the
purposes of an employment discrimination analysis.” Id. (internal quotation
marks, citation, and alteration omitted).
      The evidence does not support Hinga’s claim that Ashorn, Glenz, and
Warzon were appropriate comparators. First, and most critical, they did not
have the same job responsibilities. MIC’s actuator production followed an
assembly line-type process. In the first step, Hinga, a machinist, lapped parts
used in the actuators. The comparators, who all worked in the Assembly
department, assembled the parts into actuators.       Hinga was directly and
primarily responsible for lapping the parts that were used in the actuators;
those parts were defective. Ashorn, Glenz, and Warzon were responsible for
assembling parts they retrieved from inventory; none had any responsibilities
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as a machinist to make parts, and the assemblies were not defective. 2 See
Rodriquez v. Wal-Mart Stores, Inc., 540 F. App'x 322, 326 (5th Cir. 2013)
(finding a manager and cashier not similarly situated because they had
different job responsibilities); Player v. Kansas City S. Ry. Co., 496 F. App'x
479, 482 (5th Cir. 2012) (finding a foreman dissimilar to a train engineer
because “they did not perform the same functions, have the same
responsibilities, or have comparable disciplinary histories”). The “striking
differences” between Hinga and the comparators “more than account for the
different treatment they received.” 3 Wyvill v. United Companies Life Ins. Co.,
212 F.3d 296, 305 (5th Cir. 2000).
       Neither did the comparators engage in “nearly identical” conduct. While
the parties contest the extent of his inspection responsibilities, it is undisputed
that Hinga, as a machinist, had at least some responsibility to check the
flatness of his parts. 4 The comparators, in contrast, had no responsibility to
inspect the parts for flatness. Because the parts were defectively lapped, not
defectively assembled, and Hinga lapped the parts, Hinga’s conduct leading to
his discharge was dissimilar from the comparators’ conduct. See Hoffman v.


       2 Joel Watts worked in the Final Assembly department, which is distinct from the
department where the comparators worked. Unlike the comparators, Watts had an explicit
responsibility to test for flatness, and his employment was also terminated.
       3 Hinga’s evidence does not create a genuine issue of material fact that the

comparators had the same job responsibilities. Hinga’s conclusory statement that the other
individuals “had similar duties and responsibilities” is not supported by the evidence. See
Rogers, 755 F.3d at 350 (holding that summary judgment cannot be defeated by conclusory
allegations). Hinga’s affidavit states that he frequently assisted his fellow “team members”
with various tasks, but asserts neither that he had the duty to assist the assembly workers,
nor that they assisted him in lapping parts. Similarly, Joel Watts, who worked in Final
Assembly, states in his affidavit, that he routinely assisted Ashorn, Glenz, and Warzon. But
Watts does not state that he helped Hinga or that Hinga helped him.
       4 Hinga presents evidence that there were no written inspection guidelines, that he

was not required to physically inspect every part, and that management approved his visual
inspections. Whether Hinga satisfied his inspection responsibilities is not relevant to
whether the comparators engaged in nearly identical conduct. What matters is that Hinga
had some responsibility to inspect the lapped parts, while the comparators had none.
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Baylor Health Care Sys., 597 F. App’x 231, 233, 236–37 (5th Cir. 2015) (finding
a nurse and a hospital’s unit clerk “excessively dissimilar” from an MRI
technician because they worked in different departments and the technician
was solely responsible for complying with safety standards); Martin v. Budget
Rent-A-Car Sys. Inc., 432 F. App'x 407, 410 (5th Cir. 2011) (“Martin’s argument
that [the comparators] are similarly situated simply because they are all
responsible for ‘providing a service to customers’ does not meet the nearly
identical standard. If it did, every employee of a company would be considered
to have the same job responsibilities simply by virtue of providing customer
service.”).
       Hinga and the comparators also have different violation histories. Hinga
has one prior reprimand for “skipping proper quality checks” and “not showing
[a trainee] how to properly check parts during large quantity runs.” He was
also told to “pay more attention to quality of the product” in a 2010 performance
evaluation. The record does not show that any of the comparators has any
history of reprimands. See Lee, 574 F.3d at 261 (holding that the infraction
record of employees must be “comparable” in order for them to be similarly
situated). 5
       Without evidence of the same job responsibilities, nearly identical
conduct, or similar violation histories, there is no prima facie case of
discrimination. 6 Because we hold that Hinga has not established a prima facie




       5  It is undisputed that Hinga and the comparators shared the same supervisor. This
is the only factor favoring Hinga.
        6 Hinga claims that the departments in which Hinga and the comparators worked

were under the same roof and in close proximity, that Hinga and each comparator worked a
similar shift each day, and that Hinga and each comparator previously worked at MIC’s
predecessor and moved to MIC when it was acquired. We can find no reason or caselaw why
these points are relevant to showing similarity for the purpose of establishing a prima facie
case.
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case of age discrimination, we need not address whether Hinga has shown that
MIC’s proffered reason for termination was pretextual.
                            III. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s judgment.




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