     Case: 17-60314      Document: 00514556446         Page: 1    Date Filed: 07/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 17-60314                           FILED
                                                                         July 16, 2018

FANNIE MAE JENNINGS,                                                    Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellant

v.

WAL-MART, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-622


Before KING, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
       On March 14, 2014, Fannie Mae Jennings was fired by Wal-Mart Store
981 in Meridian, Mississippi. Jennings, an at-will employee and 79 years old
at the time of the firing, had been employed by Wal-Mart as a sales associate
for 28 years.     On June 10, 2014, Jennings filed a charge with the Equal
Employment Opportunity Commission, alleging race and age discrimination,
hostile work environment, and retaliation claims under Title VII of the Civil


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60314
Rights Act, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act.
She also asserted state law claims of breach of contract and intentional
infliction of emotional distress. On March 24, 2017, the district court granted
summary judgment for Wal-Mart as to all of Jennings’ claims. Jennings now
appeals the dismissal of her race discrimination, age discrimination, hostile
work environment, and retaliation claims.
      We review a district court’s grant of a motion for summary judgment de
novo, applying the same standard as the district court. Moss v. BMC Software,
Inc., 610 F.3d 917, 921 (5th Cir. 2010). Summary judgment is 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).
Mere conclusory allegations are insufficient to defeat a motion for summary
judgment. Moss, 510 F.3d at 921.
      The district court’s grant of summary judgment for Wal-Mart as to all of
Jennings’ claims was premised on Wal-Mart’s presentation of a wholly neutral
rationale for Jennings’ dismissal. That is, Jennings had recently received her
fourth disciplinary notice (“Coaching,” in Wal-Mart’s corporate parlance) based
on unexcused absence.      And, as a matter of its internal Coaching for
Improvement Policy, Wal-Mart automatically fires an employee who receive a
fourth Coaching within twelve months of the date of the third Coaching. At
her deposition, Jennings stated that she was unaware of this internal Wal-
Mart discipline policy.
      Against this backdrop of Wal-Mart’s facially neutral Coaching for
Improvement Policy, the district court found that Jennings had not presented
sufficient evidence so as to substantiate any of her claims and present any
genuine issues of material fact. We are persuaded that the district court was
correct to grant summary judgment for Wal-Mart as to all claims. And on
appeal, Jennings presents no new facts or arguments to suggest anything to
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                                 No. 17-60314
the contrary. We will not, absent any proof, “assume that the nonmoving party
could or would prove the necessary facts.” McCallum Highlands, Ltd. v. Wash.
Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995).
      Our review of the summary judgment record confirms that Jennings’s
claims are wholly unsubstantiated by her evidence. To create a fact issue over
whether she was absent on numerous occasions, Jennings contends that she
carpooled with another employee, Jennifer Griffin, who was always punctual.
Griffin’s deposition was explicit that she stopped carpooling with Jennings
after Griffin was promoted to manager in 2012—well before the alleged
infractions. Business records submitted by Wal-Mart confirm that Griffin was
indeed promoted in mid-2012.      Griffin did eventually submit an affidavit,
claiming she and Jennings continued to carpool after the promotion. But this
affidavit was produced only after the district court entered summary judgment
for Wal-Mart.
      Next, Jennings claims that Wal-Mart’s records and documents showing
her absences and formal reprimands were fabricated. She submits no evidence
to support this assertion. Jennings can point to various awards and certificates
she received from Wal-Mart. But none of these awards were issued in the years
she received reprimands for her absences. Jennings also claims that Wal-Mart
approved several of her absences and gave her confirmation numbers. In
support, Jennings supplied an undated, handwritten document. Wal-Mart, for
its part, explained that confirmation numbers only reflect that the absence was
reported, not approved.
      Finally, Jennings asserts that two younger, white sales associates
received higher pay and were never forced to unload freight trucks. Apart from
having no evidence of their pay, neither associate is an appropriate comparator
because neither worked in the same department as Jennings or for the same
supervisor. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)
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                                No. 17-60314
(“Employees with different supervisors[ or] who work for different divisions of
a company . . . will not be deemed similarly situated.”). Jennings also claims
that her replacement was a younger white woman, giving rise to an inference
of animus. But no evidence shows that her replacement was treated better. In
fact, her replacement was paid less than half of what Jennings made and was
fired within weeks of accumulating three unapproved absences.
      The judgment of the district court is AFFIRMED.




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