IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10097

MARCELINO SALAZAR, 

 Plaintiff–Appellant,

v.

CARGILL MEAT SOLUTIONS CORPORATION, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:13-CV-204

Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit 

Judges.

PER CURIAM:*

Plaintiff–Appellant Marcelino Salazar alleges that his former employer, 

Defendant–Appellee Cargill Meat Solutions Corporation (“Cargill”), violated 

the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, 

when it terminated his employment. After more than twenty years at Cargill

with no disciplinary history, Salazar was summarily dismissed for 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 8, 2015

Lyle W. Cayce

Clerk

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insubordination when he shrugged his shoulders to respond in the negative to 

a routine question from a supervisor. According to Salazar, he was unable to 

form a vocal response because his mouth was full of coffee, and nothing in his 

considerable experience at Cargill indicated that such nonverbal communication 

amounted to insubordination meriting immediate dismissal. Additionally, a 

new, significantly younger employee appeared at Cargill on the day of Salazar’s 

termination and took over Salazar’s responsibilities. The district court granted 

summary judgment to Cargill, finding that Salazar had failed to present 

competent evidence that the company’s proffered reason for terminating him 

was a pretext for age discrimination. We disagree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Salazar worked at Cargill’s cattle feedlot in Lockney, Texas from the 

mid-1980s until his termination in 2012. At the time of his termination, 

Salazar was fifty-six years old and held the position of feeder-truck driver in 

Cargill’s Feed Department—a position he had held since at least 2007 without 

a single disciplinary incident. As a feeder-truck driver, Salazar delivered cattle 

feed from Cargill’s mill to its feed bunk. He also maintained his feeder truck, 

performing minor repairs and reporting on the vehicle’s condition to his 

superior so that the company could arrange for substantial repairs when 

necessary.

In June 2012, Salazar’s supervisor in the Feed Department, Mike 

Tonche, was replaced by interim supervisor Filiberto Polanco. Polanco also 

served as the supervisor of Cargill’s Mill Department. In these dual roles, 

Polanco had the authority to discipline Cargill staff. Both Tonche and Polanco

reported to Feedlot Area Manager Pat O’Connell.

Tonche, then Polanco, held regular morning meetings with the Feed 

Department staff. In these meetings, the supervisor would ask the feeder-truck 

drivers how they were doing and whether they had encountered any problems 

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with their feeder trucks or with the cattle. Cargill management viewed the 

upkeep of the feeder trucks as “absolutely critical,” as each truck cost 

approximately $200,000.

On June 25, 2012, Polanco held a Feed Department morning meeting.

Salazar attended this meeting alongside several of his colleagues in the Feed 

Department, as well as two new Cargill employees, 19-year-old Stephen 

Gonzales and 29-year-old Justin Davis. According to Polanco, Gonzales and 

Davis had been hired to work in the Mill Department, but Gonzales was 

expected to drive a feeder truck “on occasion” to cover Tonche’s former shifts.

During the meeting, Polanco asked each of the feeder-truck drivers whether 

they were having any problems with their vehicles. When Polanco posed the 

question to Salazar, Salazar “was taking a drink of coffee and was not able to 

answer out loud, so [he] shrugged [his] shoulders as a way of indicating ‘no’ to 

the question.” Polanco “viewed [Salazar’s] refusal [to answer the question] as 

insubordinate, and terminated [Salazar]” on the spot.

During his twenty-plus years with Cargill, Salazar “ha[d] never seen or 

been told about any [company] rule or policy . . . that employees could not 

answer questions by nodding or shaking their heads, or by shrugging their 

shoulders.” In Salazar’s experience, “it was permissible to answer [Polanco’s] 

question in the manner that [he] did,” as he and other employees had “often 

responded to questions” nonverbally without repercussions. Additionally,

Salazar was discharged with no prior notice, despite a provision in Cargill’s

disciplinary policy mandating a warning or formal write-up before 

termination, absent “serious” circumstances. In fact, this was Salazar’s first 

and only disciplinary action of any sort at Cargill.

Following Salazar’s dismissal, Gonzales—who was thirty-seven years 

Salazar’s junior and had no experience operating a feeder truck—assumed 

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Salazar’s work duties. Polanco informed O’Connell of Salazar’s termination, 

and O’Connell “did not disagree with [Polanco’s] decision.”

In September 2013, following receipt of a right-to-sue letter from the 

Equal Employment Opportunity Commission, Salazar sued Cargill in federal 

court, asserting that his termination violated the ADEA. The district court 

granted summary judgment for Cargill. The court concluded that although 

Salazar had made out a prima facie case of age discrimination, Cargill had 

articulated a non-discriminatory reason for its action—namely, Salazar’s 

insubordination at the June 25 meeting—and Salazar had failed to raise a 

genuine factual dispute as to whether Cargill’s stated explanation was a mere 

pretext for discrimination. Salazar timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over Salazar’s ADEA claim pursuant 

to 28 U.S.C. § 1331. This Court has jurisdiction to review the district court’s 

final judgment under 28 U.S.C. § 1291.

“We review the grant of summary judgment de novo, applying the same 

standard as the district court.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 

(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). A dispute is genuine “if 

the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party,” and a fact is material if it “might affect the outcome of the 

suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). Like the district court, we construe all facts and evidence in the 

light most favorable to the nonmovant, and we refrain from making credibility 

determinations or weighing the evidence. Haverda v. Hays Cnty., 723 F.3d 586, 

591 (5th Cir. 2013).

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III. DISCUSSION

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

otherwise discriminat[ing] against [him] . . . because of [his] age.” 29 U.S.C. 

§ 623(a)(1). To establish a claim of age discrimination, “the plaintiff has the 

burden of persuasion to show ‘that age was the ‘but-for’ cause of [his] 

employer’s adverse action.’” Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 

377 (5th Cir. 2010) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177

(2009)). Where, as here, the plaintiff relies on circumstantial evidence of 

discrimination, the burden-shifting framework set forth in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973), guides the court’s analysis. Sandstad v. 

CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). 

The plaintiff must first make out a prima facie case of discriminatory 

treatment, which, in this context, entails a showing that “(1) he was 

discharged; (2) he was qualified for the position; (3) he was within the protected 

class at the time of discharge; and (4) he was either i) replaced by someone 

outside the protected class, ii) replaced by someone younger, or iii) otherwise 

discharged because of his age.” Jackson, 602 F.3d at 378 (internal quotation 

marks omitted). Once the plaintiff sets forth his prima facie case, “the burden 

shifts to the employer to provide a legitimate, non-discriminatory reason for 

the employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th 

Cir. 2007). If the employer satisfies this obligation—characterized as a burden

of production, not one of persuasion, Sandstad, 309 F.3d at 897—the plaintiff 

is “afforded an opportunity to rebut the employer’s purported explanation, to 

show that the reason given is merely pretextual,” Moss, 610 F.3d at 922.

In assessing whether the plaintiff’s rebuttal defeats summary judgment, 

“the question is whether the plaintiff has shown that there is a genuine issue of 

material fact as to whether [the employer’s expressed] reason was pretextual.” 

Id. (alterations and internal quotation marks omitted). “A plaintiff may show 

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pretext either through evidence of disparate treatment or by showing that the 

employer’s proffered explanation is false or unworthy of credence.” Id. (internal 

quotation marks omitted). “Evidence demonstrating the falsity of the 

defendant’s explanation, taken together with the [plaintiff’s] prima facie case, is 

likely to support an inference of discrimination even without further evidence of 

[the] defendant’s true motive.” Sandstad, 309 F.3d at 897. Correspondingly, 

“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.” Id. Evidence 

supporting the plaintiff’s prima facie case, and inferences drawn therefrom, 

properly may bear on the pretext inquiry. Reeves v. Sanderson Plumbing 

Prods., Inc., 530 U.S. 133, 143 (2000) (citing Tex. Dep’t of Cmty. Affairs v. 

Burdine, 450 U.S. 248, 255 n.10 (1981)).

The district court held that Salazar made out a prima facie case of age 

discrimination, and we agree. Salazar presented evidence that (1) he was 

discharged; (2) he was qualified for his position; (3) he was over forty years old; 

and (4) he was replaced by someone younger—19-year-old Stephen Gonzales. 

Although Cargill contends that Salazar’s evidence fails to establish the 

second and fourth elements of his prima facie case, its arguments are 

unavailing. This Court has held that “a plaintiff challenging his 

termination . . . can ordinarily establish a prima facie case of age 

discrimination by showing that he continued to possess the necessary 

qualifications for his job at the time of the adverse action.” Bienkowski v. Am. 

Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). “By this,” we explained, “we 

mean that plaintiff had not suffered physical disability or loss of a necessary 

professional license or some other occurrence that rendered him unfit for the 

position for which he was hired.” Id. at 1506 n.3. We later held, as a corollary, 

that an ADEA plaintiff “need not show that his performance met [his 

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employer’s] expectations to establish a prima facie case”; evidence of employer 

dissatisfaction “does not prove a lack of qualifications at the prima facie stage.” 

Berquist, 500 F.3d at 350–51. Cargill’s suggestion that Salazar’s alleged 

insubordination on June 25, 2012, rendered him unqualified for the feedertruck-driver position ignores the evidence to the contrary, such as Salazar’s

unblemished performance record dating back to at least 2007, and cannot be 

reconciled with our reasoning in Bienkowski and Berquist. 

As for Salazar’s evidence of his replacement by a younger employee, 

Cargill contests the veracity of Salazar’s statements in his deposition and 

affidavit that Gonzales took his place. But these averments were founded on 

Salazar’s personal knowledge and observations. This competent evidence,

contested by Cargill’s arguments and competing evidence, therefore highlights

the existence of a material factual dispute precluding summary judgment.

The district court also held, and we again agree, that Cargill carried its 

burden to introduce evidence that its decision to terminate Salazar had a

legitimate, nondiscriminatory basis—Salazar’s insubordination during the 

June 25, 2012, morning meeting.

The dispositive issue, therefore, is whether Salazar presented sufficient 

evidence to create a genuine dispute of material fact on pretext. The district 

court concluded that Salazar’s evidence would not preclude summary 

judgment because, in essence, it only disputed Cargill’s characterization of the 

events of June 25. “[T]he question here,” it observed, “is not why Salazar did 

not answer Polanco’s question, or whether insubordination is a good reason to 

fire someone, but whether Polanco truly fired Salazar because of his age”—an 

issue on which Salazar was “unable to produce any evidence.”

This reasoning misapprehends Salazar’s summary-judgment burden. 

Salazar needed only to present “[e]vidence demonstrating the falsity of 

[Cargill’s] explanation,” coupled with his prima facie case of age discrimination, 

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to withstand summary judgment. Sandstad, 309 F.3d at 897. The evidence 

before the district court, viewed in the light most favorable to Salazar, meets

this threshold. In addition to the evidence supporting his prima facie case, 

Salazar produced sworn testimony that (1) he had worked for Cargill for more 

than twenty years without a single disciplinary incident; (2) the conduct for 

which he was terminated was routine and, in his experience, had never before 

been met with sanction; (3) he was dismissed summarily, without a warning or 

a write-up, contrary to Cargill’s ordinary procedures; and (4) the day of his 

firing, two new, younger employees began work for Cargill, and one of those 

employees assumed his work duties. Regardless of whether Salazar ultimately 

will be able to carry his burden of persuasion on pretext, these sworn facts, and 

the favorable inferences drawn therefrom, tend to show the falsity of Cargill’s 

non-discriminatory explanation at this early stage of the litigation. Accordingly, 

the district court erred in granting summary judgment to Cargill.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s judgment 

and REMAND the case for further proceedings consistent with this opinion.

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