     Case: 19-60925      Document: 00515444806         Page: 1    Date Filed: 06/08/2020




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

                                    No. 19-60925
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                            June 8, 2020
                                                                            Lyle W. Cayce
CHRISTINE D. TINGLE,                                                             Clerk


              Plaintiff - Appellant

v.

MERCHANTS & MARINE BANK,

              Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:18-CV-149


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In this age discrimination case, Christine Tingle—a former employee of
defendant Merchants & Marine Bank—appeals the district court’s well-
reasoned grant of summary judgment. 1 The sole issue presented on appeal is
whether Tingle has shown that there is a genuine issue of material fact as to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 “This court reviews de novo the district court’s grant of summary judgment,
employing the same criteria used in that court.” E.E.O.C. v. Tex. Instruments Inc., 100 F.3d
1173, 1179 (5th Cir. 1996).
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                                      No. 19-60925
whether the defendant’s asserted basis for terminating her—falsifying a time
card—was pretext for age discrimination.                 Cf. Jackson v. Cal-Western
Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010). 2
       Tingle raises two principal arguments in support of her claim of pretext.
First, she contends that she was disparately treated in that a younger
employee, Lakelia Jones (age 39), also falsified timesheets but was not fired.
Second, Tingle argues that her supervisor, Lisa Adams, and the human
resources director who made the termination decision, Sheryl Wolfe,
intentionally refrained from alerting her about the timekeeping issue until it
was too late to fix it, all in an effort to replace Tingle with a younger employee.
Both of these arguments are unavailing.
       As to Tingle’s first contention, Lakelia Jones is not a proper comparator
for the purpose of establishing disparate treatment. See Little v. Republic Ref.
Co., 924 F.2d 93, 97 (5th Cir. 1991) (“To establish a claim of disparate
treatment, [the plaintiff] must show that [the defendant] gave preferential
treatment to a younger employee under ‘nearly identical’ circumstances.”
(quoting Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990))).
Whereas Tingle was terminated for intentionally remaining on the clock
despite not working and despite being expressly told to clock out, no record
evidence establishes that Jones was trying to obtain pay for unearned,
unworked time. Jones merely clocked out for her lunch break in the afternoon
rather than during the lunch period. Although Jones’s conduct did not align
with company policy, Jones never sought compensation for time she did not
work. The same cannot be said for Tingle, who indicated to Wolfe that she




       It is undisputed that Tingle has established a prima facie case of age discrimination
       2

and that the defendant provided a legitimate, nondiscriminatory reason for Tingle’s
termination.
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                                      No. 19-60925
delayed clocking out after being instructed to for the purpose of “g[etting] [her]
hours in.”
       Tingle disputes the record evidence and claims that Wolfe must have
known Jones was falsifying timesheets because Wolfe had been on lunch
breaks with Jones that lasted longer than the allotted hour. But, as Wolfe
explained in her affidavit, she could not recall every occasion when she and
Jones went to lunch together or the length of those lunches. Wolfe also had no
reason to believe that Jones was not clocking out when they went to lunch. The
allegations of improper timekeeping lodged against Jones were limited to two
specific days. And the records available for those two days do not indicate that
Jones was “on-the-clock without permission for a longer period than she
actually worked, nor did such records indicate that Jones was paid for more
time than she had worked.”
       Again, such was not the case for Tingle, whose timekeeping error, from
the defendant’s perspective, was intentional and done for the purpose of
obtaining pay for unworked time. Cf. Bryant v. Compass Grp. USA Inc.,
413 F.3d 471, 478 (5th Cir. 2005) (“Management does not have to make proper
decisions, only non-discriminatory ones.”). Because Tingle and Jones engaged
in markedly different conduct, 3 Tingle cannot rely on a theory of disparate
treatment to prove pretext. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212,
221 (5th Cir. 2001) (“[T]he conduct at issue is not nearly identical when the
difference between the plaintiff’s conduct and that of those alleged to be




       3 Tingle and Jones also reacted very differently when confronted with their mistakes.
Tingle acknowledged that she was supposed to clock out at 4:00 p.m. on September 7, and
admitted that, instead of following Adams’s clear instructions, she “just got [her] hours in”
and clocked out at 4:30 p.m. In contrast, Jones expressed a misunderstanding about when
she was supposed to clock out, explaining that she was clocking out in the afternoon, during
what was supposed to be paid time, to cover her lunch hour so that she would not go over
time or receive any extra paid time for each day.
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                                  No. 19-60925
similarly situated accounts for the difference in treatment received from the
employer.”).
      No evidence corroborates Tingle’s second argument—that both Adams
and Wolfe intentionally withheld information about Tingle’s timekeeping error
to create an opportunity to replace Tingle with a younger employee. First of
all, neither Adams nor Wolfe had an obligation under company policy to notify
Tingle of her mistake. Indeed, Tingle concedes it was her responsibility to
initiate the process for submitting a time exception form and correcting issues
with her time report.
      Adams, moreover, did not make the decision to fire Tingle; Wolfe did.
Tingle acknowledges this but contends that Merchants & Marine Bank can
nonetheless be held liable for Adams’s conduct through a “cat’s paw” theory.
Such a theory requires proof that Adams harbored a discriminatory animus
and “possessed leverage, or exerted influence, over the titular decisionmaker.”
Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (quoting
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000)). Tingle’s
proffered evidence is insufficient to substantiate a “cat’s paw” theory. She
suggests that ageism is demonstrated by the fact that Adams reported Tingle’s
timekeeping error to Wolfe and then later hired a twenty-year old woman to
replace Tingle. Adams, however, stated in her affidavit that she reported
Tingle because Tingle disobeyed her direct order and remained on the clock
despite not working. Tingle’s subjective belief to the contrary is insufficient to
rebut that sworn statement. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d
144, 153 (5th Cir. 1995) (subjective belief of age discrimination is insufficient
to establish pretext). Further, both Adams and Wolfe confirmed that Adams
had no input or involvement in the discharge decision. Wolfe unilaterally made
the call. Tingle’s “cat’s paw” theory thus fails.


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                                 No. 19-60925
      Her argument concerning Wolfe fares no better. Tingle asserts that
Wolfe held onto Adams’s complaint until after the pay period ended to ensure
that Tingle could not fix her mistake.     The record tells a different story.
Tingle’s timekeeping error occurred on Thursday, September 7.            As an
employee, she had an obligation to submit a time exception form to correct any
inaccurate timekeeping. She failed to do so. Moreover, Tingle did not return
to work until the next Monday, September 11, after the pay period had ended.
Wolfe confronted Tingle that Monday, the first business day she could do so.
Additionally, before confronting Tingle, Wolfe called Adams and the payroll
department to ask whether Tingle had submitted a time exception form,
demonstrating that she was not trying to “set up” Tingle for termination. Wolfe
also went into the meeting with Tingle having prepared both a final warning
and a termination memo because she wanted to hear Tingle’s side of the story
before deciding which disciplinary measure to take. Even disregarding all of
that, there is no evidence that Wolfe’s decision was driven by an ageist animus.
Tingle posits that ageism is demonstrated by Wolfe “covering” for her younger
subordinate, Jones, who was likewise falsifying her time. But, for reasons
already explained, Jones’s situation is not comparable to Tingle’s; she was not
falsifying her time report in an effort to receive compensation for time not
worked.
      Because Tingle has failed to carry her burden of showing a genuine
dispute of material fact as to whether the defendant’s legitimate,
nondiscriminatory reason for Tingle’s discharge was pretextual, the district
court was correct to grant the defendant’s motion for summary judgment.
      AFFIRM.




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