REVISED NOVEMBER 5, 2002
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-10808
KENNETH D. SANDSTAD,
Plaintiff-Appellant,
VERSUS
CB RICHARD ELLIS, INC.,
Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Texas October 28, 2002
Before DUHÉ, DEMOSS, and CLEMENT, Circuit Judges.
DUHÉ, Circuit Judge:
Plaintiff-Appellant Kenneth Sandstad appeals from the district
court’s order granting Defendant-Appellee C.B. Richard Ellis, Inc.
summary judgment on Sandstad’s Age Discrimination in Employment Act
claim. Because Appellant has not produced evidence sufficient to
create an issue for the jury as to pretext, we AFFIRM.
I. BACKGROUND Sandstad (“Appellant”) began his career with C.B. Richard
Ellis (“Appellee” or the “Company”), a real estate services
company, as sales manager of the Minneapolis office in 1974. Over
the next 16 years he was promoted to Vice President and Resident
Manager of the Minneapolis office, First Vice President and
Resident Manager of the North Dallas office, and South Central
Regional Manager of the Brokerage Business Unit.
The Brokerage Business Unit was organized in three divisions,
and in 1990, Appellant became Central Division Manager. He reported
directly to then President of Brokerage Services Gary Beban
(“Beban”) until the end of 1994, when his Division was eliminated
and he became Senior Executive Vice President of Institutional
Services. This was also an upper management position, and
Appellant reported to Dick Clotfelter (“Clotfelter”). In late
1995, Clotfelter gave Appellant a poor performance review,
questioning his management and noting his failure to focus on
essential tasks. In 1996, Appellant returned to the Brokerage
Business Unit as Eastern Division Manager, again reporting to
Beban.
Beginning in 1996, the Company designed and implemented a
Long-Term Leadership Orientation Program (the “Plan”) to integrate
younger employees into senior management. A 1997 memo issued by
then CEO James Didion(“Dideon”) described the Plan as one to
“identify 30 to 50 younger managers and management candidates to
serve as a pool of talent for promotion to senior management over
2 the next 5+ years, ultimately replacing senior management.” Brett
White, who eventually replaced Gary Beban as President of Brokerage
Services and who terminated Appellant, was a participant of this
program.
Appellee became a publicly traded company in late 1996.
Appellee prepared question-and-answer literature for road shows
held in anticipation of the public offering.1 The literature
described the Company’s plan to integrate younger employees into
management. During the road shows, stock analysts remarked to
Company representatives that there was “too much grey hair” in
senior management. Among the representatives who heard these
comments was Walter Stafford, senior manager and General Counsel
for the Company. Stafford told other senior managers about the
remarks and stated that something would have to be done to remedy
the analysts’ perception. Stafford was among the managers who
later decided to fire Appellant.
In 1997, Beban moved from President of Brokerage Services to
President of Corporate Services. Appellant was in line to fill the
vacancy left by Beban; however, CEO James Didioninstead selected
Brett White, who was 37 years old at the time he was promoted.
Beban told Appellant that Didionhad decided to “skip a generation”
in selecting Beban’s replacement.
1 “road show. A series of presentations to investors describing an upcoming issue of securities. A road show is designed to drum up interest in the issue among potential investors.” DAVID L. SCOTT, WALL STREET WORDS 326 (Revised ed. 1997)
3 In early 1998 the Brokerage Business Unit was reorganized from
three divisions into nine regions. Appellant was assigned the lead
management role in the South Central Region. Soon thereafter, two
managers who reported directly to Appellant registered their
frustration with Appellant’s management. In July 1998, White, in
his role as President of Brokerage Services, gave Appellant’s
management of the Dallas market a negative review. The next month,
Nina Petty (“Petty”), a manager who reported directly to Appellant,
filed a formal written complaint of gender discrimination against
Appellant.
Appellee hired Rogge Dunn (“Dunn”) as outside counsel to
investigate Petty’s complaint. Dunn interviewed Appellant, Petty,
and other employees in Appellant’s region, and compiled a report
that included summaries of the interviews he conducted. Dunn
reported that employees complained about Appellant’s conduct and
management style generally. His own impression of Appellant was
that Appellant was a “bully,” was condescending, and was not
credible during his interview. Dunn concluded that while he
thought Appellant had not discriminated against Petty, Appellant’s
actions with regard to Petty were nonetheless inappropriate and
placed Appellee at substantial risk of a jury verdict.
Walter Stafford, after meeting with senior managers Ray Wirta
and James Dideon, recommended Appellant’s discharge to White.
White conferred briefly with the Company’s legal department and
discharged Appellant shortly thereafter. White told Appellant that
4 the reasons were poor performance and lost confidence in his
leadership. At the time, Appellant was age 52. The region under
Appellant’s direction was combined with a region managed by Jeff
Langdon, age 42.
White issued a memorandum announcing the discharge to the
employees in Appellant’s region. The memorandum described the
reason as lost confidence in Appellant’s ability to perform
following the investigation prompted by a gender discrimination
complaint lodged against Appellant.
Appellant sued under the Age Discrimination in Employment Act
and timely appealed the adverse grant of summary judgment.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Pratt v. City of Houston, Tex., 247 F.3d 601, 605-06 (5th
Cir. 2001). Summary judgment shall be rendered when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317 323 (1986). An issue of material fact is
genuine if a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the evidence, we
must draw all reasonable inferences in favor of the nonmoving
party, and avoid credibility determinations and weighing of the
5 evidence. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,
120 S. Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000). In so doing, we
must disregard all evidence favorable to the moving party that the
jury is not required to believe. Reeves, 120 S. Ct at 2110.
II. ANALYTICAL FRAMEWORK FOR ADEA CASES
In employment discrimination cases, a plaintiff may present
his case by direct or circumstantial evidence, or both. Russell v.
McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). If
the plaintiff produces direct evidence that discriminatory animus
played a role in the decision at issue, the burden of persuasion
shifts to the defendant, who must prove that it would have taken
the same action regardless of discriminatory animus. Price
Waterhouse v. Hopkins, 490 U.S. 228, 252-53, 109 S. Ct. 1775,
1792, 104 L.Ed.2d 268 (1989). If the plaintiff produces only
circumstantial evidence of discrimination, the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed.2d 668 (1973) guides our
inquiry.2
The McDonnell Douglas framework first requires satisfaction of
the prima facie case, the elements of which, in the context of age
discrimination, are: (1) the plaintiff was discharged; (2) he was
qualified for the position at issue; (3) he was within the
2 This circuit applies the McDonnell Douglas rubric to both Title VII and ADEA claims. See Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 n.3 (5th Cir 2000).
6 protected class; and (4) he was replaced by someone younger or
outside the protected group. Brown v. CSC Logic, Inc. 82 F.3d 651,
654 (5th Cir. 1996). Upon plaintiff’s satisfaction of the prima
facie case, the burden of production, rather than persuasion,
shifts to the defendant to proffer a legitimate nondiscriminatory
reason for its decision. McDonnell Douglas, 411 U.S. at 802; Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S. Ct.
1089, 67 L. Ed.2d 207 (1981). If the defendant meets its burden,
the presumption of discrimination created by the prima facie case
disappears, and the plaintiff is left with the ultimate burden of
proving discrimination. St. Mary’s Honor Ctr v. Hicks, 509 U.S.
502, 511-12, 113 S. Ct. 2742, 125 L. Ed.2d 407 (1993).
The plaintiff may meet its ultimate burden with evidence
tending to show that the reason offered by the defendant is a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93
S. Ct. at 1825. Evidence demonstrating the falsity of the
defendant’s explanation, taken together with the prima facie case,
is likely to support an inference of discrimination even without
further evidence of defendant’s true motive. Reeves, 530 U.S. at
147-48, 120 S. Ct. at 2108-09. Thus, the plaintiff can survive
summary judgment by producing evidence that creates a jury issue as
to the employer’s discriminatory animus or the falsity of the
employer’s legitimate nondiscriminatory explanation.3
3 The district court quoted Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994), for the proposition that
7 III. APPLICATION OF ANALYTICAL FRAMEWORK
Appellant urges that the district court erred in finding that
he offered no direct evidence of Appellee’s discriminatory motive
in terminating him. We agree with the district court. Direct
evidence is evidence that, if believed, proves the fact of
discriminatory animus without inference or presumption. Mooney v.
Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995). Appellant
points to the Long Term Leadership Development Plan, which
endeavored to “identify...younger managers...for promotion to
senior management over the next 5+ years, ultimately replacing
senior management.” To find that the plan is evidence of age-based
animus relevant to Appellant’s termination requires the inference
that senior managers were to be fired to make room for younger
trainees, rather than being replaced as they retire, change jobs,
or are terminated for performance reasons.4 Appellant contends
that the district court erroneously failed to draw this inference
in his favor. However, Appellant’s contention is inapposite to the
the plaintiff’s burden of establishing pretext is “a heavy one indeed. It is not discharged by general avowels of belief, however sincere, that age–rather than an established adequate reason–was the real reason for the termination.” Appellant protests that the language quoted by the district court indicates that it applied the “pretext-plus” standard rejected in Reeves. Our holding does not rely on the notion of Appellant’s burden being a heavy one. In accordance with Reeves, we look only to whether a reasonable jury could find that Appellant’s evidence supports an inference of age discrimination. 4 Our discussion of the reasonableness of the required inference is reserved until we discuss whether Appellant has produced evidence allowing for the inference of pretext, infra.
8 analysis of whether evidence is direct or circumstantial. If an
inference is required for the evidence to be probative as to
Appellee’s discriminatory animus in firing Appellant, the evidence
is circumstantial, not direct.
Next, Appellant offers the remarks by stock analysts about
“too much grey hair” in Company management. This evidence cannot
demonstrate directly that Appellant was fired because of his age.
The speakers not only had no part in the decision to terminate
Appellant, they were not even employed by the Company. Gary
Beban’s “skipping a generation” comment similarly is not direct
evidence. First, Beban was not responsible for Appellant’s
termination. Second, Beban in his deposition testimony indicated
that he meant “generation” in the context of levels of management
seniority, not age. The ambiguity of the remark, as well as its
attenuation from Appellant’s termination, excludes it from the
realm of direct evidence.
Because Appellant’s case consists of circumstantial evidence,
we apply the McDonnell Douglas burden-shifting analysis. Appellee
argues that Appellant failed to make out a prima facie case because
Appellee restructured its divisions rather than replacing Appellant
per se. The region formerly under Appellant’s direction was
collapsed into a region managed by 42-year-old Jeff Langdon. As
did the district court, we will view, without deciding,
Appellant’s evidence as establishing a prima facie case. The
burden then shifts to Appellee to produce a legitimate
9 nondiscriminatory reason for terminating Appellant.
Appellee’s proffered reasons for terminating Appellant were
his management style and the risk created by his conduct toward
Nina Petty. Evidence in support of Appellant’s explanation
includes deposition testimony by the managers who fired Appellant
or took part in the decision. Appellant contends that Reeves
requires us to disregard as interested witness testimony all
testimony by managers involved in the employment decision.5 We
disagree with Appellant’s interpretation of Reeves, which would in
effect eliminate his burden to show that Appellee’s explanation is
pretextual. The burden on Appellee to produce a legitimate
nondiscriminatory reason for terminating Appellant is “one of
production, not persuasion; it can involve no credibility
assessment.” Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; See also
Rios v. Rossotti, 252 F.3d 375 (5th Cir. 2001)(same); Futrell v.
J.I. Case, 38 F.3d 342 (7th Cir. 1994)(“[I]n indirect
discrimination cases, we do not defer to jury verdicts where the
credibility of a defendant’s explanation of the discharge is at
issue simply because juries have the exclusive right to judge
5 “[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.’ Id., at 300.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 151, 120 S. Ct. 2097, 2110, 147 L.Ed.2d 105 (2000)(quoting Wright & Miller, Federal Practice and Procedure § 2529 (2d ed. 1995)).
10 credibility.”) The definition of an interested witness cannot be
so broad as to require us to disregard testimony from a company’s
agents regarding the company’s reasons for discharging an employee.
As the Seventh Circuit noted in Traylor v. Brown, et al., 295 F.3d
783 (7th Cir. 2002), to so hold would foreclose the possibility of
summary judgment for employers, who almost invariably must rely on
testimony of their agents to explain why the disputed action was
taken.
Moreover, the record reveals support other than the testimony
of senior managers for Appellee’s explanation. In Appellant’s
deposition and in a memo written by Appellant, he acknowledges
calling Nina Petty in during her maternity leave to discuss
removing her from a pure management role. Appellant admits that
he regrets writing in a memo to Petty that she was regarded as a
“mother hen.” In a memo to Brett White, Appellant concedes that
“the book” on him was that he micro-managed those who reported to
him. The record contains memoranda expressing dissatisfaction with
Appellant’s management style from managers Ran Holman and Jerry
Lumsden, both of whom reported to Appellant. The performance
review of Appellant by Brett White, written the July before
Appellant’s September termination, expresses White’s concern with
the “instability and dissatisfaction” among the management in the
Dallas market.
Also supporting Appellee’s explanation are the summaries
written by Rogge Dunn after he investigated Petty’s complaint.
11 While the summaries could not be admitted for their truth, we
consider them only for their effect on Appellee’s decision.
Appellant’s assertion that we must assess the truth of the
interview summaries to determine Appellee’s reasonableness in
relying on them does not create a fact issue as to pretext;
Appellee is entitled to be unreasonable so long as it does not act
with discriminatory animus. If Appellant intends to show that the
explanation is so unreasonable that it must be pretextual, it is
Appellant’s burden to proffer evidence creating a fact issue
regarding reasonableness. Appellant has not done so.
Given Appellee’s nondiscriminatory explanation, Appellant must
point to evidence creating an issue of fact as to the pretextual
nature of the explanation. Merely disputing Appellee’s assessment
of his performance will not create an issue of fact. Evans v. City
of Houston, 246 F.3d 344, 355 (5th Cir. 2002). The issue at the
pretext stage is whether Appellee’s reason, even if incorrect, was
the real reason for Appellant’s termination. Id. Thus, Appellant
must adduce evidence supporting an inference that Appellee’s motive
was age-based animus, or at the least, that Appellee’s explanation
of its motive is false.
In arguing that Appellee’s explanation is pretexutal,
Appellant points to Rogge Dunn’s conclusion that Appellant did not
discriminate against Petty. However, Appellant fails to note
Dunn’s additional conclusion that Appellee nonetheless placed the
Company at substantial risk of a jury verdict. That Appellant did
12 not discriminate against Petty is insufficient to create an issue
of fact regarding whether Appellee fired him because he posed a
risk to the Company.
Appellant argues that the oral statements we reject as direct
evidence in any event provide evidence of discrimination sufficient
to show pretext. Oral statements constitute evidence of
discrimination if they indicate age-based animus and the speaker is
principally responsible for the plaintiff’s firing. Russell v.
McKinney Hospital Venture, 235 F.3d 219 (5th Cir. 2001)(citing
Reeves,530 U.S. at 151, 120 S. Ct. at 2110).6
The statements offered by Appellant fail in that the speakers
were not responsible, primarily or otherwise, for his termination.
The comment by Gary Beban that James Didionhad “skipped a
generation” in choosing Beban’s replacement could indicate age-
based animus, and we draw that inference in favor of Appellant.
However, Beban was not among the managers who made the decision to
fire Appellant. Beban’s estimation of Dideon’s decision-making
process in promoting Brett White bears no logical link to the
decision to fire Appellant.
The remarks by stock analysts that the Company had “too much
6 This court traditionally has applied the four-part test of Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), to workplace remarks. In Russell,a panel of this court chose not to apply the CSC Logic test, noting that its harsh application in Reeves was unacceptable to the Supreme Court. Russell, 235 F.3d at 225-26. Because the evidence offered by Appellant would produce the same result under either test, we do not reach whether the CSC Logic approach continues to be viable.
13 grey hair” in management indicate age-based animus. However, the
link between the speakers, who were not even Company employees, and
Appellant’s termination is absent. To indicate a connection
between the analysts’ remarks and his termination, Appellant points
out that Walter Stafford, one of the managers responsible for
Appellant’s firing, was audience to the comments and later
expressed concern about them. We have held that a remark may bear
a sufficient causal connection to the employment decision if the
speaker has such influence over the decision maker that his animus
properly may be imputed to the decision maker. Russell, 235 F.3d at
226-27, citing Haas v. ADVO Sys., Inc., 168 F.3d 732, 734 n.1 (5th
Cir. 1999). These decisions are based in part on principles of
agency. Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir.
1996). We have not held that the remarks of non-employees may be
imputed to the decision maker, and the statement at issue here
provides no reason to so hold today.
Appellant’s only evidence of discriminatory remarks by a
decision maker is Stafford’s testimony that White said to him, “You
old guys don’t always get it right.” Appellant omits from his
argument the portion of the exchange which places it in context:
Q: Can you recall any [remarks] specifically?
A: The specifics, no. But, again, they’re of the same type: “you
old guys don’t always get it right.”
Q: He has said that?
A: Uh-huh.
14 Q: When did you hear him say that?
A: After I told him that, “You young guys seldom get it right.”7
Viewed in context, White’s remark provides no evidence of
discriminatory animus.
The Plan likewise does not provide evidence of pretext.
Favoring Appellant, we accept that the Plan evidences a policy of
keeping older employees from advancing to senior management
positions. However, the inference that the Plan reflected a policy
to fire older managers to make room for younger managers is both
unreasonable and contradicted by independent, uncontroverted
evidence. Appellant offers the decline in mean age of senior
managers as evidence of the Company’s age-based animus. Since
implementation of the Plan, two senior managers have been fired:
Appellant and one other, whom Appellant concedes was not fired
because of his age. The record shows that younger employees have
been promoted to senior management positions. Thus, the decline in
mean age is not attributable to senior managers being fired; it is
attributable to younger employees moving into newly created senior
management positions.
Even if we infer a general animus toward older people
currently occupying senior management positions, Appellant offers
no evidence providing for a reasonable inference connecting the
Plan to his own termination. Appellant argues that the “grey hair”
7 Deposition of Walter Stafford, 6R.Plaintiff’s App.146.
15 and “generation skipping” comments tie the Plan to his termination.
The Plan was in place before the road show; thus, it could not have
been enacted in response to the “grey hair” comment. Appellant’s
argument that we should consider the Plan as being enacted in
anticipation of the comments requires an unreasonable inference,
which we are not required to make. Similarly, the “generation
skipping” comment, spoken in connection with a promotion decision
made by someone other than the speaker, can be linked to the Plan
and to Appellant’s termination only with unreasonable inferences.
We reject also Appellant’s argument that he was treated
differently from Jeff Langdon, whose management style had been the
subject of complaints from subordinates. In discrimination cases,
we compare the treatment of other employees whose conduct is
“nearly identical” to the plaintiff’s conduct and who were treated
more favorably than the plaintiff. Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507 (5th. Cir. 2001). Appellant cannot
show that Langdon’s conduct was nearly identical because no formal
complaint of gender discrimination was filed against Langdon.
Thus, as the district court concluded, Appellant’s treatment cannot
be compared with that of Langdon.
Finally, Appellant points to Appellee’s alleged lax attitude
toward sexual harassment and discrimination. Appellant’s evidence
of the Company’s attitude is no more than a list of the employees
who have made complaints and a judgment against the Company won by
one complainant. The record contains no evidence of the substance
16 of the complaints or action taken by the Company that would be
probative of the Company’s attitude toward sex discrimination. No
reasonable inference that the Company acted differently in its
response to Appellant can be drawn from evidence in the record.
Viewing the evidence as a whole and drawing all reasonable
inferences in Appellant’s favor, we find that he has created no
issue of material fact regarding the Appellee’s discriminatory
animus in terminating him. We therefore affirm the judgment of the
district court.
AFFIRMED.