Sparks v. L M Berry & Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 9, 1999
• Docket: 98-60627
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60627 Summary Calendar LAWRENCE W. SPARKS

Plaintiff-Appellant,

VERSUS

L.M. BERRY & COMPANY D/B/A THE BERRY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi (3:97-CV-699-BN)

June 8, 1999 Before DAVIS, DUHÉ, and PARKER, Circuit Judges:

PER CURIAM:*

Lawrence W. Sparks (“Sparks”) filed a claim of age

discrimination against his former employer, L.M. Berry & Company

(“Berry”), under the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 621, and under state law. The district court granted

summary judgment in favor of Berry. Sparks appeals. We AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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- Berry sells telephone directory advertisements for various

telephone companies and their affiliated directory publishers in 23

states. Berry is the authorized sales agency for BellSouth

Advertising & Publishing Corporation. BellSouth Advertising

publishes the BellSouth Real Yellow Pages in Kentucky, Tennessee,

Louisiana, Alabama, and Mississippi.

Sparks had worked in the field of directory advertising sales

for a number of years. Prior to working for Berry, Sparks worked

in South Carolina in the field of directory advertising sales.

When Sparks wanted to move to Mississippi, his manager in South

Carolina put Sparks in contact with one of Berry's regional

managers, Pete Loungo (“Loungo”). Loungo contacted the Mississippi

Division manager, Ty Gettis.

Berry hired Sparks on January 3, 1993 to work in Berry's

Mississippi Division as a premise sales representative. At the

time of his hiring, Sparks was 53 years old and the oldest person

hired by Berry during the six year period from 1992 to 1997.

As a sales representative, Sparks demonstrated considerable

success. Sparks had customers all over the State of Mississippi,

met sales goals, and made money for the company. In 1996, Sparks

won the President's Club award for the top salesman in the

district. Sparks also placed second among all salespersons in

Memphis, Tennessee for work in the second half of 1996.

Berry, however, had a number of problems with Sparks' behavior

and his handling of company accounts. Sparks received counseling

sessions with managers because of his behavior. Berry reprimanded

-2- Sparks for violations of company procedures. In addition, Sparks

was suspended for one day from his employment for improper handling

of company guidelines and procedures. Further, Berry's customers

reported a number of complaints with respect to the services that

Sparks provided.

Berry contends that two serious ethical violations led to

Sparks' termination. First, Berry contends that Sparks forged

initials on an account with CPS Pools and Spas (“CPS”). Shirley

Draughn, (“Draughn”), an employee at CPS, alleged that Sparks

forged her signature on a consumer tips addendum of CPS' paperwork.

Sparks' manager, Jody Washington (“Washington”), made a site visit

and spoke with Draughn about the signature. Draughn stated that

the signature had been initialed, but that she never initialed a

signature. Draughn could not locate CPS' copy of the consumer tips

addendum.

Upon investigating the alleged forgery within Berry,

Washington spoke with Cindy Harrell (“Harrell”), a clerk at Berry.

Harrell explained that she asked Sparks about the consumer tips

addendum to the CPS account because Sparks did not turn it in with

his paperwork. Harrell reported that Sparks said he would drive

back to CPS, obtain the form, and give it to Harrell. Sparks

returned with the form fifteen minutes later. Washington, however,

believed that the drive would have taken approximately 40 minutes

to CPS and back. Thus, Washington suspected that Sparks initialed

the signature on the form.

Second, Berry investigated an ethical violation concerning

-3- Sparks' account at Healthcare Suppliers (“Healthcare”). Lisa

Williamson (“Williamson”), an employee at Healthcare, complained

that the Healthcare paperwork listed her as the authorized person

on the account but that she did not authorize $1,484.00 in

advertising. Further, Williamson said that she did not even speak

with Sparks. Williamson's boss, David McNamara (“McNamara”),

stated that the advertising had to be canceled because Healthcare

had changed its name.

On January 10, 1997, Washington and Anita Moore (“Moore”), the

Mississippi Operations Manager, met with Sparks to discuss the CPS

and Healthcare accounts. Sparks denied Draughn's allegation that

he had forged the signature. When asked about his return trip to

CPS, Sparks replied that it was not fifteen minutes later, but

simply later that day.

Sparks also explained that he spoke with McNamara regarding

the Healthcare account. Sparks noted that McNamara gave him

Williamson's name as the contact person on the Healthcare account.

Further, Sparks explained that his manager, Bob Glass, gave Sparks

permission to authorize the account via telephone (“per tel”),

because Healthcare was renewing their account.

On January 14, 1997, Moore and Washington met with Sparks

again. Moore questioned Sparks again about the signature on the

consumer tips addendum. Sparks claimed that the signature belonged

to Draughn. In this meeting, however, Sparks claimed that he did

not return to the CPS office. Instead, Sparks explained that the

addendum had been in his briefcase all along. When Sparks was

-4- questioned about the inconsistency in his stories, he denied

telling Washington and Moore that he had made a return trip to CPS.

At this time, Moore also told Sparks that he was responsible for

documenting the correct name and information on the Healthcare

account. Moore then terminated Berry on the basis of his ethical

violations.

Sparks filed a complaint against Berry in federal court

alleging that Berry terminated him in violation of the ADEA.

Further, Sparks asserted state law claims for breach of contract

and intentional infliction of emotional distress. Berry filed a

Motion for Summary Judgment arguing that Sparks could not establish

a prima facie case of age discrimination under the ADEA.

The district court found that Sparks did not establish a prima

facie case of age discrimination. The district court also

dismissed Sparks' state law claims as a matter of law.

II. DISCUSSION

A. Motion for Leave to File Notice of Appeal.

The district court granted summary judgment in favor of Berry

in this action on August 4, 1998. Under Fed. R. App. P. 4(a)(1),

Sparks had thirty days, until September 3, 1998, to file a notice

of appeal. On September 4, 1998, Sparks' counsel realized that

the time to file the notice of appeal had passed.

Under Fed. R. App. P. 4(a)(5), the district court may extend

the time to file a notice of appeal if (i) a party so moves no

later than 30 days after the time prescribed by the Rule 4(a)

expires; and (ii) that party shows excusable neglect or good cause.

-5- Sparks' counsel filed a Motion for Leave to File Notice of Appeal

with the district court pursuant to Rule 4(a)(5) on September 4,

1998. The district court granted Sparks' Motion for Leave to File

Notice of Appeal, finding that Sparks' counsel demonstrated

excusable neglect pursuant to Fed. R. App. P. 4(a)(5). Berry

contends that the district court abused its discretion in allowing

Sparks to file a notice of appeal on the ground that Sparks had not

demonstrated excusable neglect.

We review the district court's decision to extend the time to

file a notice of appeal for abuse of discretion. See Midwest

Employers Casualty Co. v. Williams, 161 F.3d 877, 879 (5th Cir.

1998) (reviewing magistrate judge's decision to extend time to file

an appeal).

This Court has adopted the Supreme Court's standard of

“excusable neglect” announced in Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395-97 (1993).

See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 469

(5th Cir. 1998). In Pioneer, the Court concluded that the

determination of excusable conduct is equitable and takes into

account factors such as 1) danger of prejudice; 2) length of

delay; 3) reason for delay; and 4) evidence of good faith. See

Pioneer, 507 U.S. at 395.

The district court reviewed Sparks' Motion for Leave and

found that the extenuating circumstances were sufficient to meet

the standard of excusable neglect under Pioneer. As an equitable

consideration, we hold that the district court did not abuse its

-6- discretion in granting Sparks' Motion for Leave to File Notice of

Appeal. There was no danger of prejudice and the length of delay

was minimal. Further, the affidavit of Sparks' counsel claimed a

busy trial practice, an ill child, and a miscalculation of the days

all led to the delay. Finally, Sparks' counsel demonstrated good

faith by contacting the district court and Berry's counsel on the

morning of September 4 to notify them of the missed deadline.

B. State Law Claims

Sparks raised two state law claims against Berry in his

complaint: breach of employment contract and intentional

infliction of emotional distress. Berry contends that Sparks

waived his state law claims because he failed to address them in

his initial brief on appeal. Sparks, however, contends that his

state law claims flow from the common nucleus of facts underlying

his age discrimination claim. Citing United Paperworkers Intern.

AFL-CIO, CLC v. Champion Intern. Corp., 908 F.2d 1252, 1255 (5th

Cir. 1990), Sparks suggests that this Court should logically deduce

his state law claims from his age discrimination claim.

This Court has held that “[a]n appellant abandons all issues

not raised and argued in its initial brief on appeal.” Cinel v.

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Neither Sparks'

initial brief nor his reply brief addresses any law or facts

relating to intentional infliction of emotional distress or breach

of employment contract. We hold that Sparks waived his state law

claims because he did not raise these issues on appeal in his

initial brief. See id.

-7- C. Age Discrimination Claim

Sparks contends that the district court erred when it granted

summary judgment in favor of Berry on his age discrimination claim

under the ADEA. The district court found that Sparks did not

establish a prima facie case of age discrimination.

This Court reviews a district court's grant of summary

judgment de novo. See Brown v. CSC Logic, Inc., 82 F.3d 651, 653

(5th Cir. 1997). Summary judgment is proper if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to

summary judgment as a matter of law." Fed. R. Civ. P. 56(c).

In order for Sparks to establish a prima facie case of age

discrimination, he must show: (1) he was discharged; (2) he was

qualified for his position; (3) he was within the protected class;

and (4) he was replaced by someone outside the protected class,

someone younger, or was otherwise discharged because of his age.

See Brown, 82 F.3d at 654.

Sparks satisfies the first three elements of his prima facie

case. Berry terminated Sparks. Sparks was qualified for his

position and Sparks was fifty-seven. Sparks has not asserted

that he was replaced by someone outside the protected class or by

someone younger. Thus, Sparks must establish that he was

discharged because of his age.

Sparks offers three separate grounds for showing that he was

discharged on the basis of his age. First, Sparks contends he was

-8- hired to cover up Berry's previous age discrimination against

another employee. Second, Sparks argues that he was treated less

favorably than a similarly situated, younger employee. Finally,

Sparks offers an assortment of other evidence to support his

contention that Berry discharged Sparks because of his age.

1. Discriminatory Hiring

At the time of his hiring, Sparks was within the age group

protected by the ADEA. Where a company hires an employee who is

within the protected class and then discharges that employee, there

is an inference that age discrimination was not the motivation.

See Brown, 82 F.3d at 658. “Claims that employer animus exists in

termination but not in hiring seem irrational.” Id. (citing Proud

v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991)).

Sparks asserts that Berry hired him for the purpose of

testifying in a pending lawsuit against Berry. Specifically,

Sparks states that Berry intended to use him to show that the

company hires older people to combat an age discrimination suit by

a former employee, Helen Cantrell (“Cantrell”). Cantrell filed an

EEOC charge of discrimination in August, 1992 and the lawsuit was

served on Berry in June, 1993. The Cantrell lawsuit settled in

October, 1995.

Sparks' facts do not establish that Berry hired him for a

discriminatory purpose. Sparks, experienced in advertising sales,

was qualified for the position at Berry and was successful in this

position. The Cantrell lawsuit was not served on Berry until a few

months after Berry hired Sparks. In addition, Sparks continued to

-9- work at Berry for more than a year after the Cantrell lawsuit

settled.

2. Similarly-Situated Employee

Sparks contends that Berry discharged him on the basis of his

age because he was treated less favorably than a similarly-

situated, younger employee. Sparks argues that Berry terminated

him but only suspended Ted Watson (“Watson”), age 40, under similar

circumstances.

This Court has held that the plaintiff "must show that [the

employer] gave preferential treatment to a younger employee under

'nearly identical' circumstances." Hamilton v. Grocers Supply Co.,

Inc., 986 F.2d 97, 99 (5th Cir. 1993) (citing Little v. Republic

Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991)). S p a r k s

contends that Berry gave preferential treatment to Watson and that

they are similarly situated. Sparks points to the fact that Berry

terminated Sparks for falsifying information on two accounts but

only suspended Watson for discrepancies on signatures on five

accounts.

The extent of Sparks and Watson's similarities, however, end

with their account falsifications. Watson received positive

customer recontacts, had low complaints and adjustments, and had no

prior history of improper handling of accounts. On the other hand,

Berry offered evidence that Sparks had received counseling for his

behavior at work, a reprimand for failing to follow company

procedures, a one-day suspension for improper handling of an

account, and a number of complaints from his accounts. Washington

-10- explained in her deposition testimony that she considered Sparks'

history of customer complaints when she was considering Sparks'

termination. Finally, in her memorandum, Moore referenced Sparks'

history of excessive customer complaints.

The personnel records demonstrate that Berry considered

Sparks' level of customer complaints in its decision to terminate

him. Watson's lack of customer complaints was a factor in Berry's

decision not to terminate him. Because of the difference in the

level of customer complaints, we agree with the district court that

Sparks and Watson's circumstances were not nearly identical, and

for this reason, Berry's differential treatment of Sparks does not

establish age discrimination. See Davin v. Delta Airlines, 678 F.2d

567, 571 (5th Cir. 1982) (plaintiff failed to establish a prima

facie case of gender discrimination based on disparate treatment of

terminated female employee and retained male employee where

employer considered female plaintiff's history of causing fear in

other employees at ticket counter).

3. Other Proffered Evidence of Age Discrimination.

Sparks offers a number of alternative theories to establish

that Berry discriminated against him because of his age. First,

Sparks contends that a memorandum drafted by Loungo in 1989

demonstrates an atmosphere of age discrimination. The 1989

memorandum categorized Berry into three different categories of

employees: (1) long-tenured representatives approaching retirement;

(2) over 40 tenured sales reps; and (3) under 40 less-tenured reps.

The memo expressed concern over the age, performance, and ability

-11- to terminate representatives in group 2.

In Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir. 1999), this

Court affirmed a jury's finding that Berry discriminated against a

former employee because of her age. In part, the Smith court

relied on the Loungo memorandum as evidence to support the finding

of age discrimination. The relevance of the memorandum here,

however, is too tenuous to support a finding of age discrimination.

The memorandum was not related to the employment decision at issue

in this case.

Second, Sparks contends that two age-related comments, along

with other evidence of age discrimination, created an inference of

a discriminatory atmosphere at Berry. Sparks, relying on Atkinson

v. Denton Publishing Co., 84 F.3d 144 (5th Cir. 1996), argues that

comments such as “Pops” and “an older, gray-haired gentleman,”

created a triable issue of age discrimination for a jury.

Sparks, however, fails to realize that the plaintiff in

Atkinson had established a prima facie case of age discrimination.

In Atkinson, the employee had demonstrated a prima facie case of

age discrimination, the employer rebutted the presumption, then the

district court granted summary judgment. See id. at 149-50. The

Atkinson court reversed the district court's grant of summary

judgment for the employer, holding that the employee's evidence had

created a fact issue on the issue of whether age was a factor in

his termination. Id. at 150.

In this case, the district court granted summary judgment when

Sparks did not meet his burden of establishing a prima facie case

-12- of age discrimination. Sparks does not and cannot contend that the

vague age-related comments are sufficient to prove that Berry

terminated Sparks because of his age. See EEOC v. Texas

Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (an age

based comment must be direct and unambiguous); Waggoneer v. City

of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (“old fart” comment

does not establish age animus).

Finally, Sparks contends that the finding of the Mississippi

Employment Security Commission (“MESC”) infers that Berry dismissed

Sparks because of his age. When Sparks was terminated, he filed

for unemployment benefits with the MESC. Berry contested the

unemployment benefits, claiming that Berry was discharged for

mishandling accounts. The MESC awarded benefits to Sparks, finding

that Berry did not show that he was discharged for the misconduct

related to his job. The MESC finding, however, does not provide

affirmative evidence that Berry discriminated on the basis of his

age. Therefore, Sparks still has not established a prima facie

claim of age discrimination.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district

court's grant of summary judgment in favor of the defendant, L.M.

Berry & Company.

-13-