Richards vs. American General (5th Cir. 1999)

Federal Circuits, 5th Cir. (January 12, 1999)

Docket number: 97-20956


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Following termination from her employment by American General Life and Accident Insurance Compan y (“American”), Appellant sued alleging age and gender discrimination and retaliatory discharge.

The district court granted summary judgment for American. Richards appeals. We affirm.

The controlling issue i s whether Appellant has created an issue of material fact as to any or all of her claims. We review de novo, and a substantial conflict in evidence must exist to create a jury question on the issue of discrimination. Rhodes v. G uiberson Oil Tools , 75 F.3d 989, 993 (5 t h Cir. 1996) (en banc).

Thus, Appellant can defeat the motion only if the evidence, taken as a whole: (1) creates a fact issue as to whether the employerÂ’s stated reason for the discharge was pretext; and (2) creates a reasonable inference that [age, g ender or retaliation] was a determinative factor in the employment decision. I d . We view the evidence in the light most favorable to Appellant.

Richards had been employed by American for thirty-two years.

At her termination, she was Assoc iate Director of the Sales/Mass Marketing department. This department was combined with the Mass Marketing Administration department and nine jobs were eliminated, including RichardsÂ’. Thereafter, and as part of the restructuring, two new positions entitled Senior Writing Consultants were created, and McConville and Parker were employed in those jobs. Both were under forty years of age. Also, American transferred the position of underwriting mass marketing, from the underwriting department to t he mass marketing group which was the department in wh ich Appellant had formerly worked. Huff, who held the job in underwriting, was transferred with it to mass marketing.

ANALYSIS Because Appellant relies on the identical evidence to establish her age and gender discrimination claims, and because the same standard is applicable to each, we discuss them together.

Richards contends that the proffered nondiscriminatory reason ten dered for her termination, reduction in force, is pretextual because she h ad the same or superior qualifications than the younger persons hired and the male retained for under writing positions after the reduction in force. In support, she offers her deposition testimony (which she concedes is insufficient standing alone) and the affidavits of Lacy and Gott. The district court found that Lacy was not competent to determine whether Richards was better qualified because Lacy had never reviewed RichardÂ’s work or the qualifications of those hired; and was not privy to AmericanÂ’s objectives in the restructuring or the skills required to accomplish that objective. LacyÂ’s affidavit was, therefore, not proba tive of pretext. Our review of the record convinces us the district court was correct.

Further, the distri ct court reasoned that GottÂ’s affidavit merely showed that, at most, AppellantÂ’s termination may have been arbitrary or unjustif ied, but does not show that the termination was unlawfully motivated. R hodes , 75 F,3d at 994. Again we agree.

Finally, the district court determined that there was no evidence that A ppellantÂ’s age motivated AmericanÂ’s decision to terminate her. Our review of the record shows this to be correct.

We turn now to AppellantÂ’s retaliatory discharge claim. She contends first that she participated in an earlier sexual harassment investigation of AmericanÂ’s president, and GottÂ’s affidavit states that, for that reason, the president wanted Richards fired. This, she argues, creates a jury issue.

The district court correctly found that Gott’s affidavit does not indicate that Richards was terminated because of her participation in the investigation of the president. The ultimate i ssue in a retaliation case is “but for” causation. Long v. Eastfield College , 88 F.3d 300, 305 n .4 (5 t h Cir. 1996).

Examination of the evidence in the light most favorable to Richards shows there is no substantial fact issue created that, but for her participation in the investigation, she would not hav e been terminated. She relies solely on GottÂ’s affidavit and points to no substantial conflict in the evidence regarding the pr offered explanation for her termination. Indeed, the record indicates the president was unaware of RichardsÂ’ par ticipation in the investigation. Therefore, under the R hodes rational, Appellant has not produced sufficient evidence to create a jury question.

Additionally, the district court properly considered the lapse of time (two years) between AppellantÂ’s p articipation in the investigation and her ter mination. S hirley v. Chrysler First, Inc. , 970 F.2d 39, 44 (5 th Cir. 1992).

AFFIRMED.

1 Pursuant to 5 T H C IR . R. 47.5, the Court has determined th a t this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 97-20956 Summary Calendar M. YVONNE RICHARDS Plaintiff-Appellant, VERSUS AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO. Defendant-Appellee. Appeal from the United States District Court for the Southern District of Texas (H-96-CV-111) January 11, 1999 Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges. PER CURIAM:

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