     Case: 18-50040      Document: 00514586941         Page: 1    Date Filed: 08/06/2018




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

                                    No. 18-50040                                  FILED
                                  Summary Calendar                           August 6, 2018
                                                                             Lyle W. Cayce
                                                                                  Clerk
VICKI-LOU GRACE NOVAK,

                                                 Plaintiff - Appellant
v.

CHICAGO TITLE OF TEXAS, L.L.C.,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-939


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Vicki-Lou Grace Novak sued her previous employer
Defendant–Appellee Chicago Title of Texas, L.L.C., for age discrimination in
violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623.
Chicago Title filed a motion for summary judgment, which the district court
granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 18-50040
                                       I.
      Chicago Title employed Vicki-Lou Grace Novak as an escrow officer for
17 years. Novak primarily closed real estate transactions and was required to
follow all federal and state laws regarding such transactions, including
regulations issued by the U.S. Department of Housing and Urban Development
(“HUD”). Under HUD rules, Novak was required to obtain lender approval of
HUD settlement statements prior to closing. After attending a training session
in 2010, she knew that such a statement had to “match[] the financial terms of
the contract or the checks that were being issued.” She also understood that
her job “would be in jeopardy” if she did not comply with HUD rules and
company policy pertaining to settlement statements.
      In 2013, Novak closed a transaction even though she knew she “had an
incorrect HUD statement,” resulting from an error in pro-rating some
homeowners’ dues. On May 3, 2013, Novak met with Todd Rasco, supervisor of
the office, and Bill Lester, Director of Residential Marketing. Rasco became
aware of Novak’s error through another employee, and at that meeting, Novak
admitted to the error. Rasco stated that he did not want such an error to occur
again and that Novak needed to slow down and pay more attention to the
details. After the meeting, Rasco sent an email to Chris Hodges, the human
resources administrator, documenting what had occurred, and Novak
contacted the lender to correct the error.
      Three days later, Novak met with Rasco and Hodges. Rasco said to
Novak that “he had given the situation some thought over the weekend and he
thought it best [he and Novak] go [their] separate ways.” At that meeting,
Novak was terminated. Subsequently, in September 2016, Novak sued Chicago
Title for age discrimination in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”). Chicago Title filed a motion for summary
judgment, which the district court granted. Novak appealed.
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                                 No. 18-50040
                                       II.
      We review de novo a district court’s grant of summary judgment. Reed v.
Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is
proper if “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. The movant is
entitled to summary judgment if “the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
      “Under the ADEA, it is unlawful for an employer ‘to fail or refuse to hire
or 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.’” Machinchick v. PB Power, Inc.,
398 F.3d 345, 349–50 (5th Cir. 2005) (quoting 29 U.S.C. § 623(a)(1)). A plaintiff
establishes a prima facie case of age discrimination by showing that (1) she
was discharged; (2) she was qualified for the position; (3) she was within the
protected class at the time of discharge; and (4) she was either (i) replaced by
someone younger or outside the protected class or (ii) treated less favorably
than similarly situated younger employees. Goudeau v. Nat’l Oilwell Varco,
L.P., 793 F.3d 470, 474 (5th Cir. 2015); Smith v. City of Jackson, 351 F.3d 183,
196 (5th Cir. 2003), aff’d on other grounds, 544 U.S. 228 (2005).
      “If the plaintiff successfully makes out a prima facie case, the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason for
the termination.” Goudeau, 793 F.3d at 474. The plaintiff must then “prove by
a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” Id.
(quoting Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015)). “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
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                                      No. 18-50040
credence.”’” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378–79 (5th Cir.
2010) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
       Chicago Title contends that, assuming arguendo Novak can meet her
burden to establish a prima facie case, it has articulated a legitimate, non-
discriminatory reason for the discharge: Novak closed a real estate transaction,
knowing that the accompanying HUD settlement statement was incorrect. 1
According to Chicago Title, her actions amounted to a violation of company
policy. Novak admitted to this error in her deposition. She stated that she knew
she was not following proper closing procedures. She recognized that, once she
had discovered the miscalculation, she was supposed to “stop the closing and
get the lender to approve” a corrected statement before moving forward.
       Novak argues that there is a genuine dispute of material fact as to
whether Chicago Title’s proffered reason for termination is pretextual. As
evidence of pretext, she points out that similarly situated employees were not
discharged, Rasco’s initial response to her error was not termination, and her
employment history indicates age discrimination. Her contention is
unavailing. First, although Rasco explained in his deposition that other escrow
officers had made mistakes without being terminated, he distinguished
Novak’s incident as “intentional,” as she knew the HUD statement was
incorrect and proceeded to close anyway. See Lee v. Kan. City S. Ry. Co., 574
F.3d 253, 260 (5th Cir. 2009) (“If 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.” (quoting



       1 The parties dispute whether Novak has established a prima facie case of age
discrimination. As we may “affirm summary judgment on any ground supported by the
record,” we do not need to address those contentions. Reed, 701 F.3d at 438 (quoting Moss v.
BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010)).
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                                 No. 18-50040
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001))). Moreover,
he stated that he knew of no other escrow officers that took the same actions
as Novak. Next, Rasco did not initially discharge her, but this does not prove
pretext as he made no comments in the second meeting (or the first one) that
indicated Novak’s age was an issue. Finally, Novak’s work history does not
support her claim of pretext. Besides a couple of questions about when she
would retire—neither by Rasco—she stated in her deposition that there were
no other age-related comments.
      In sum, without more, we cannot conclude that there is a triable issue of
fact as to whether Chicago Title’s reason for termination was pretextual. See
Jackson, 602 F.3d at 380; Ray v. Tandem Computs., Inc., 63 F.3d 429, 435 (5th
Cir. 1995); E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir.
1995).
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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