                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                                                July 29, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                              No. 02-10399


     CECIL LASSETTER

                            Plaintiff-Appellant-Cross-Appellee

     v.

     STRATEGIC MATERIALS INC

                            Defendant-Appellee-Cross-Appellant


          Appeal from the United States District Court
           for the Northern District of Texas, Dallas
                     USDC No. 3:98-CV-2889-M


Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Cecil Lassetter appeals the district

court’s order granting Defendant-Appellee Strategic Materials,

Inc.’s motion for judgment as a matter of law on Lassetter’s

claim under the Age Discrimination in Employment Act.       We affirm.

                  I.   FACTUAL AND PROCEDURAL HISTORY
     A.   Facts

     Plaintiff-Appellant Cecil Lassetter worked for Defendant-

Appellant Strategic Materials, Inc. (“Strategic”) as a plant

manager in a glass recycling plant in Midlothian, Texas.        After



     *
          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that this opinion should not be published and is not precedent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.
receiving complaints about Lassetter’s job performance,

Strategic’s Vice-President, Curt Bucey, suspended Lassetter with

pay to investigate these complaints.1   Bucey investigated the

complaints about Lassetter and detailed the results of his

investigation in a six-page letter to Lassetter.   The letter

expressed Bucey’s concerns about Lassetter’s: inappropriate

treatment of subordinates, disloyalty to Strategic, absence from

an annual plant managers’ meeting, failure to produce quality

control reports, and abandonment of a temporary assignment at

Strategic’s Houston plant.2

     Lassetter replied with a very brief letter where he

generally denied the allegations and accused Strategic of

attempting to discharge him on the basis of his age.   Lassetter

wrote: “The allegations contained in the Letter are untrue,

unsubstantiated, unwarranted and show[] the company’s intent to

force me out in violation of the Age Discrimination Act.”

     Bucey then terminated Lassetter’s employment with Strategic.

In his letter discharging Lassetter, Bucey wrote: “You are hereby

terminated for cause, the cause being the complaints and issues

with your job performance raised in my letter of March 5, your

lack of response to the same, and the apparent breach of your

duty of loyalty to the company as plant manager in efforts to

divert suppliers from the plant.”

     1
          Prior to that suspension, Lassetter had not been
formally disciplined or suspended, though his supervisors
testified that they had previously met with Lassetter informally
to discuss problems with his performance.
     2
          This letter was viewed by the jury in a significantly
redacted form.

                                2
     At the time of his discharge, Lassetter was fifty-eight

years old.    Lassetter’s replacement was forty-six-year-old Joe

Schumacher.    Schumacher was replaced a few months later by

thirty-four-year-old Roy Benavides.

     B.   Procedural History

     Lassetter sued, claiming intentional discrimination under

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§§ 621-634 (2000), and intentional infliction of emotional

distress under Texas law.    The district court dismissed the

intentional infliction of emotional distress claim for failure to

state a claim.

     The district court then held a three-day jury trial on

Lassetter’s ADEA claim.    During the trial, Lassetter sought to

prove his claim of age discrimination by showing that Strategic’s

stated reasons for discharging him were a pretext for age

discrimination.    Strategic moved for judgment as a matter of law

(“JMOL”) at the close of Lassetter’s evidence and at the close of

all the evidence.    The district court denied both motions for

JMOL without prejudice.    The jury returned a verdict for

Lassetter, finding that Strategic willfully discriminated against

him on the basis of his age.3   Strategic again moved for JMOL.

The district court granted Strategic’s motion for JMOL because it

found that Lassetter had not provided sufficient evidence for the

jury to determine that each of Strategic’s stated reasons for

discharging him was pretextual.

     3
          The jury awarded Lassetter $103,144 in back pay. Also,
in an advisory finding requested by the court, the jury indicated
that it would award $109,838 in front pay.

                                  3
     Lassetter now appeals, arguing that the district court erred

in granting Strategic’s motion for JMOL because he provided

sufficient evidence for the jury to find that each of the stated

reasons for discharging him was pretextual.       Strategic adds an

issue on appeal, arguing that this court should not consider

Lassetter’s appeal because his failure to include a trial

transcript in the appellate record violates Federal Rule of

Appellate Procedure 10(b)(2).4

                       II.   STANDARD OF REVIEW

     We review a district court’s grant of judgment as a matter

of law de novo.   See, e.g., West v. Nabors Drilling USA, Inc.,

330 F.3d 379, 383 (5th Cir. 2003).     Judgment as a matter of law

is appropriate when “a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue.”       FED. R. CIV. P.

50(a).   There is no legally sufficient evidentiary basis when

“the facts and inferences point so strongly and overwhelmingly in

favor of one party that the Court believes that reasonable men

could not arrive at a contrary verdict.”     Rubenstein v. Adm’rs of

the Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)

(internal citation and quotation marks omitted), cert. denied,

532 U.S. 937 (2001).   As we have explained:

     In Reeves v. Sanderson Plumbing Products, Inc., the Supreme
     Court clarified the approach a court should use when
     granting a judgment as a matter of law. First, we must

     4
          Strategic also cross-appeals “the lack of a conditional
ruling on Strategic’s motion for a new trial.” Strategic
provided no argument on this point in its brief. Because we
affirm the district court’s JMOL in favor of Strategic, we do not
address the cross-appeal.

                                   4
     review the record taken as a whole. Second, in reviewing
     all of the evidence in the record, we must draw all
     reasonable inferences in favor of the nonmoving party and
     not make credibility determinations or weigh the evidence.
     In other words, we must give credence to the evidence
     supporting the nonmovant as well as any evidence supporting
     the moving party that is uncontradicted, unimpeached, and
     not attributable to interested witnesses.

Phillips ex rel. Phillips v. Monroe County, Miss., 311 F.3d 369,

373 (5th Cir. 2002) (internal citations and quotation marks

omitted), cert. denied, 123 S. Ct. 2274 (2003).     Thus, we review

the record as a whole, drawing all reasonable inferences in favor

of Lassetter without making any credibility assessments.

                        III.     DISCUSSION

A.   Whether Lassetter’s failure to include a transcript in the
     record bars this appeal

     Initially, we must address whether Lassetter’s initial

failure to include the trial transcript in the record on appeal

precludes us from reviewing his appeal on the merits.      Under the

Federal Rules of Appellate Procedure, “If the appellant intends

to urge on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant must

include in the record a transcript of all evidence relevant to

that finding or conclusion.”   FED. R. APP. P. 10(b)(2).   Further,

“If anything material to either party is omitted from or

misstated in the record by error or accident, the omission or

misstatement may be corrected and a supplemental record may be

certified and forwarded . . .”    FED. R. APP. P. 10(e)(2)(C).

Failure to include a transcript in the record is grounds for

dismissal; however, the decision whether to dismiss an appeal due

to lack of a transcript is within our discretion.     See, e.g.,


                                  5
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th Cir.

1995); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989).

     In this case, we will not dismiss Lassetter’s appeal due to

lack of a transcript.   Though the transcript was not in the

record initially, Lassetter recognized the mistake and

supplemented the record with the trial transcript on July 29,

2002, approximately five months before oral argument.      Lassetter

stated in his brief that he requested that the transcript be

included in the record and he claims that the transcript was

omitted “by error or accident,” FED. R. APP. P. 10(e)(2)(C).    We

have been given no reason to doubt Lassetter’s good faith.

Further, Strategic has not been prejudiced significantly by the

initial omission of the transcript because Strategic had a copy

of the transcript available for its use in briefing this appeal.

The transcript is now in the record so that we may properly

assess Lassetter’s claims on appeal.   For these reasons, we elect

to hear the appeal.

B.   Whether the district court erred in granting judgment as a
     matter of law

     The ADEA prohibits an employer from “discharg[ing] any

individual . . . because of such individual’s age.”   29 U.S.C.

§ 623(a)(1) (2000).   A plaintiff must prove intentional

discrimination to establish a violation of the ADEA, which he can

do by presenting either direct or circumstantial evidence.      See,

e.g., Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir.

1997).

     In cases where the plaintiff alleges discriminatory



                                 6
treatment based on circumstantial evidence, as is the case here,5

we follow the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green.        See 411 U.S. 792, 802-05

(1973); see also, e.g., West, 330 F.3d at 384 (applying this

framework to ADEA discrimination cases).       Initially, the

plaintiff must set forth a prima facie case of discrimination.

See, e.g., McDonnell Douglas, 411 U.S. at 802; West, 330 F.3d at

384.       To establish a prima facie case of discriminatory discharge

based on age, a plaintiff must prove: (1) he was a member of a

protected class (over the age of forty); (2) he was qualified for

his position; (3) he was discharged; and (4) he was replaced by

someone outside of the protected class, someone younger, or was

otherwise discharged because of his age.6       West, 330 F.3d at 384.

       The burden then shifts to the employer to produce a

legitimate, nondiscriminatory reason for discharging the

plaintiff.       See, e.g., McDonnell Douglas, 411 U.S. at 802-03;

West, 330 F.3d at 384-85.      The employer’s burden is one of

production; the burden of persuasion remains with the plaintiff

at all times.       See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981); West, 330 F.3d at 384-85.       If the

employer meets its burden of production, the inference of age

discrimination created by the prima facie case disappears.          See,

e.g., West, 330 F.3d at 385.

       The plaintiff then has the opportunity to demonstrate that

       5
          Lassetter concedes that there is no direct evidence of
age discrimination in this case.
       6
          Strategic concedes that Lassetter made out a prima
facie case of age discrimination.

                                     7
the employer’s stated reasons are not its true reasons but

instead are a pretext for discrimination and to ultimately prove,

by a preponderance of the evidence, that he has been the victim

of intentional discrimination.   See, e.g., McDonnell Douglas, 411

U.S. at 804-05; West, 330 F.3d at 385.   In attempting to prove

that the employer’s reasons for discharge were pretextual, the

plaintiff must put forward evidence rebutting each of the

proferred reasons.   See, e.g., Wallace v. Methodist Hosp. Sys.,

271 F.3d 212, 220 (5th Cir. 2001), cert. denied, 535 U.S. 1078

(2002).

     When a case has been fully tried, we do not rely on the

McDonnell Douglas burden-shifting scheme, but simply ask whether

the record contains sufficient evidence to support the jury’s

ultimate findings.   See, e.g., West, 330 F.3d at 385-86; Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

Hence, the key issue in this appeal is whether Lassetter provided

sufficient evidence for a reasonable jury to find that

Strategic’s stated reasons for discharging him were pretextual,

thereby precluding JMOL.

     At trial, Strategic set forth five reasons why it discharged

Lassetter.   The reasons are: (1) Lassetter’s disloyalty to

Strategic; (2) Lassetter’s disrespectful behavior toward

subordinates and toward management; (3) Lassetter’s abandonment

of his post during a temporary assignment at Strategic’s Houston

plant; (4) Lassetter’s failure to take inventory in a timely

manner and to implement a quality assurance system; and (5)

Lassetter’s absence from Strategic’s annual meeting for plant


                                 8
managers.     Lassetter attempted to disprove these reasons through

his testimony and the testimony of three former Strategic

employees.7    Strategic only defends the first four of its

proffered reasons on appeal.

     Lassetter has not presented sufficient evidence for a

reasonable jury to conclude that all of Strategic’s stated

reasons for Lassetter’s discharge were pretextual.    At trial,

there was conflicting evidence about the first two of Strategic’s

proferred reasons – Lassetter’s disloyalty and his treatment of

subordinates and management.    The jury clearly chose to credit

Lassetter’s version of events and not Strategic’s.    But even if

the jury refused to credit the testimony Strategic offered as to

the first two reasons, there is uncontradicted evidence in

support of Strategic’s third and fourth reasons.    We consider

each of these reasons in turn.

     As its third reason for discharge, Strategic cited

Lassetter’s abandonment of a temporary post at Strategic’s

Houston plant.    At trial, Bucey testified that he gave Lassetter

the responsibility for managing Strategic’s Houston plant for a

ninety-day trial period and that Lassetter simply stopped

reporting for work at the Houston plant after about three weeks.

Lassetter testified that the trial period was only to last thirty

days, but he admitted that he left the plant after only three

     7
          Lassetter also introduced evidence that two of his
former supervisors, Tom Vossman and Rich Smithson, made age-
related comments about him. The district court determined that
these stray remarks were not probative evidence of discrimination
because they did not satisfy the four-part test set forth in
Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996).
Lassetter does not appeal this ruling.

                                   9
weeks without giving Bucey any prior notice.    Lassetter stated

that he told his direct supervisor, Rich Smithson, that he was

not interested in becoming plant manager at the Houston plant

during the thirty-day trial period.   But, Lassetter admits that

he did not tell Smithson about his decision to leave the Houston

plant until a week after he left the plant and that, as a result,

the plant was left unsupervised.

     Even if the jury believed that Lassetter did not wish to

assume management of the Houston plant, Lassetter provided no

evidence to rebut the fact that he left the Houston plant before

the end of the thirty-day trial period without notifying

management or finding a replacement manager for the plant.

Lassetter argues that he provided sufficient evidence for the

jury to find that his discharge was pretextual because, though

Lassetter abandoned the Houston plant in the summer of 1997, he

was not disciplined for this episode until he was suspended (and

ultimately discharged) in the spring of 1998.    But, the

uncontested facts do not support Lassetter’s argument.      Bucey

testified that soon after Lassetter left the Houston plant,

Strategic flew Lassetter to Houston to meet with Bucey and

Smithson to discuss his abandonment of the Houston plant and his

performance generally.   Lassetter admitted that he made this

trip.   On the uncontested facts, then, Strategic provided a non-

discriminatory reason for discharging Lassetter.

     As its fourth reason for discharge, Strategic cited

Lassetter’s failure to complete monthly inventory reports and his

failure to implement a quality control system.    At trial, Bucey


                                10
testified about the importance of keeping proper inventory and

maintaining quality control.    Bucey stated that Lassetter rarely

made inventory reports at the end of the month when they were due

and did not implement Strategic’s quality control system at the

Midlothian plant.   Lassetter never addressed these specific

complaints, either before his discharge or at trial.      Instead,

Lassetter pointed to the testimony of Roy Benavides, a plant

manager after Lassetter, who stated that he managed the

Midlothian plant “just the way Cecil [Lassetter] was running it,”

and that he was never suspended or discharged.      Because Benavides

did not testify about whether he produced inventory reports or

whether he implemented a quality control system, his testimony

was too general to create a fact issue as to whether Strategic’s

proffered reason was pretextual.      Again, on the uncontested

facts, Strategic has set forth another non-discriminatory reason

for Lassetter’s discharge.

     In summary, Lassetter’s prima facie case is weak, and there

is no direct evidence of discrimination.      Lassetter attempts to

show discrimination by showing that Strategic’s reasons for

discharge were pretextual, but there is uncontroverted evidence

supporting two of Strategic’s nondiscriminatory reasons: that

Lassetter abandoned his temporary post at the Houston plant and

that he was unwilling to follow Strategic’s inventory and quality

assurance practices.   Because Lassetter did not provide evidence

suggesting these two reasons were pretextual, he cannot prove

intentional discrimination.    We thus find that there is no

legally sufficient evidentiary basis for a reasonable jury to


                                 11
find for Lassetter on his age discrimination claim.   The district

court’s grant of Strategic’s motion for JMOL was proper.

                          IV.   CONCLUSION

     For the foregoing reasons, the district court’s order

granting Strategic’s motion for JMOL is AFFIRMED.   Costs shall be

borne by the Appellant.




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