1 United States Court of Appeals,

Fifth Circuit.

No. 95-20273

Summary Calendar.

Jeannene MEINECKE, Plaintiff-Appellant,

v.

H & R BLOCK INCOME TAX SCHOOL INCORPORATED, d/b/a H & R Block of

South Texas Incorporated and Administaff, Inc., DefendantsAppellees.

Oct. 5, 1995.

Appeal f rom the United States District Court for the Southern

District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Jeannene Meinecke ("Meinecke") brought

this action against her former employers H & R Block of Houston ("H

& R Block") and Administaff, Inc. ( "Administaff"), alleging that

they had discriminated against her on the basis of her age and sex

and that they had breached contracts to employ her and to pay her

a retirement bo nus. The district court entered summary judgment

for H & R Block and Administaff on all claims, and Meinecke

appeals. We affirm in part and reverse in part the judgment of the

district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

H & R Block hired Meinecke in 1980. At that time, H & R Block

was owned by Ilah Merriman and her two children's trusts as general

partners. Ilah Merriman also had the title of Managing Partner and

actively managed the business. Meinecke advanced through various1 The parties have stipulated, for purposes of this

litigation, that Meinecke is an employee of H & R Block.

2 positions in the company, eventually being promoted to General

Manager of the Houston region in 1989. In that same year, H & R

Block entered into a staff leasing agreement with Administaff,

whereby Administaff hired some H & R Block employees and assigned

them to H & R Block. Administaff hired Meinecke and assigned her

to H & R Block as its General Manag er. As a result, Meinecke

effectively became a joint employee of Administaff and H & R

Block. 1

During the spring and summer of 1993, Ilah Merriman negotiated

an agreement to sell her interest in H & R Block to her son

Michael's trust. Under this agreement, Michael Merriman would

becom e the President and Managing Partner of H & R Block. On or

about March 31, 1993, Ilah Merriman infor med Meinecke that after

the sale of the business, Meinecke's services would no longer be

needed and that Ilah Merriman and Meinecke would retire at the same

time. When Meinecke made further inquiries about this arrangement,

Ilah Merriman allegedly responded that there was "no way" Meinecke

could stay, and that Michael Merriman "wanted a male in the

position that was closer to his age that he could relate to and

communicate with." Meinecke was fifty-six years old at the time.

On April 16, 1993, Ilah Merriman notified the employees of H & R

Block and Administaff that she and Meinecke would retire on May 1,

1994, and that Michael Merriman would become President and Managing

Partner.3

During the summer of 1993, the sale of the business proceeded

more quickly than had been anticipated, and on August 25, 1993,

Meinecke was informed that she would retire on September 1.

Between August and October 1993, H & R Block closed the Houston

headquarters office where Meinecke was employed and terminated all

Administaff and H & R Block employees who wor ked in that office,

including Meineck e. Of the eight employees who were discharged,

one was male and six were younger than Meinecke. At the same time,

H & R Block executed a management agreement wit h H & R Block of

South Texas, Inc. (HRB/STI), whereby HRB/STI would assist H & R

Block in carrying out the management and administrative functions

formerly performed by the Houston headquarters office. Pursuant to

this agreement, Ken Treat, Jr., who was a vice-president of HRB/STI

and thirty-six years old at the time, performed some portion of

Meinecke's duties.

On January 5, 1994, Meinecke filed this action against H & R

Block and Administaff, alleg ing that she had been discriminated

against on the basis of her sex and age in violation of Title VII

of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C . §

2000e2(a)(1), and the Age Discrimination in Employment Act of 1967

("ADEA"), 29 U.S.C. § 623(a)(1). She also alleged that H & R Block

and Administaff had breached contracts to employ her and to pay her

a severance package. On November 15, 1994, H & R Block and

Administaff filed a joint motion for summary judgment.

On March 13, 1994, the parties filed a stipulation that all

claims agains t Administaff and the breach of contract claims4

against H & R Block would be dismissed. The district court entered

an order approving the dismissal on March 16. On the same day,

however, the district court also entered an order granting summary

judgment to Administaff and H & R Blo ck on all claims, including

those that the parties had stipulated would be dismissed. Meinecke

now appeals the district court's order of summary judgment.

II. DISCUSSION

A. Standard of Review

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first instance.

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994);

Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). First, we

consult the applicable law to asc ertain the material factual

issues. K ing v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We

then review the evidence bearing on those issues, viewing the facts

and inferences to be drawn therefrom in the light most favorable to

the nonmoving party. L emelle v. Universal Mfg. Corp., 18 F.3d

1268, 1272 (5th Cir.1994); F DIC v. Dawson, 4 F.3d 1303, 1306 (5th

Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 2673, 129 L.Ed.2d

809 (1994). Summary judgment is proper "if the pleadings,

depositio ns, answers to interrogatories, and admissions on file,

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

issue as to any material fact and that the moving party is entitled

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

Under Rule 56(c), the party moving for summary judgment bears

the initial burden of informing the district court of the basis for2 H & R Block and Administaff also argue that this issue is

not properly before us because Meinecke failed to present it to

the district court. Specifically, they contend that Meinecke

should have filed either a supplemental response to their Motion

for Summary Judgment addressing the effect of the stipulation of

dismissal or, alternatively, a Rule 60(b) motion seeking relief

5 its motion and identifying the portions of the record that it

believes demonstrate the absence of a ge nuine issue of material

fact. C elotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2552-53, 91 L.Ed.2d 265 (1986); Norman, 19 F.3d at 1023. If the

moving party meets its burden, the burden shifts to the non-moving

party to establish the existence of a genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); N orman, 19

F.3d at 1023. The burden on the non-moving party is to do more

than simply show that there is some metaphysical doubt as to the

material facts. M atsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56.

B. Claims Against Administaff and Contract Claims Against H & R

Block

We first add ress the district court's grant of summary

judgment on Meinecke's claims against Administaff and her contract

claims against H & R Block. Meinecke contends that summary

judgment on these claims was inappropriate because all parties had

fil ed a stipulation that these claims would be dismissed and

because the court entered an order approving the dismissal on the

same day it entered the order granting summary judgment. H & R

Block and Administaff counter that this court does not have

jurisdiction to review the summary judgment on these claims because

the dismissal rendered the issues moot. 2from the judgment. It might well be that someone should have

reminded the district court that the stipulation of dismissal

mooted part of the summary judgment motion, but a better case can

be made for the proposition that it was the movant's

responsibility in the first instance; and it has never been the

case that a Rule 60(b) motion must be filed as a prerequisite to

appeal.

3 The dismissal is less favorable to H & R Block and

Administaff because it is without prejudice. The stipulation

itself does not indicate whether the dismissal is with or without

prejudice, but Rule 41(a)(1)(ii) of the Federal Rules of Civil

Procedure provides that, where a stipulation of dismissal does

not make such an indication, the dismissal is without prejudice.

4 We also do not presuppose the validity of the summary

judgment; however, whether the summary judgment as to these

claims was erroneous has no bearing on our jurisdiction to review

it. Because the summary judgment as to these claims is a final

judgment, we have jurisdiction pursuant to 28 U.S.C. § 1291.

6 We begin our ana lysis, as we must, with the question of

m ootness. The parties' stipulation to the dismissal of these

claims and the district court's order granting summary judgment on

the same claims are contradictory and irreconcilable. Only one of

these actions can be valid. H & R Block and Administaff, however,

would like to give effect to both. In particular, they would like

to use the action that is less favorable to them, the dismissal, to

deny this court jurisdiction to review the action that is more

favorable, the su mmary judgment, thereby insulating it from

reversal. 3 The logical fallacy in the appellees' mootness argument

is that it presupposes the validity of the dismissal; however,

where the issue before us is whether we should give effect to the

dismissal or the contradictory order of summary judgment, we cannot

make such a supposition. 4 The conflict between the dismissal and

the summary judgment presents us with a live controversy.7

Furthermore, even if the dismissal rendered moot the claims in

question, the conflicting order granting summary judgment on these

c laims effectively resurrected the controversy. Accordingly, we

find the appellees' mootness argument to be without merit.

We now turn to the question o f whether summary judgment on

the claims against Administaff and the contract claims against H &

R Block was appropriate in light of the stipulation of dismissal.

Administaff and H & R Block point out in their brief that the

parties voluntarily dismissed these claims by filing a stipulation

for dismissal pursuant to Rule 41(a)(1)(ii) of the Federal Rules of

Civil Procedure. According to this Rule, such stipulations take

effect when filed and do not require an order of the court.

Fed.R.Civ.P. 41(a)(1)(ii). Therefore, the district court's order

approving the dismissal is of no consequenc e. This distinction

should eliminate any confusion created by the fact that the

district court entere d the order approving the dismissal and the

order granting summary judgment on the same day. The claims were

dismissed when the parties filed the stipulation, which was three

days before the court entered the order granting summary judgment.

We have held that, when the parties file a stipulation of voluntary

dismissal pursuant to Rule 41(a)(1)(ii), "any further actions by

the court [are] superfluous." U nited States v. Kellogg (Matter of

West Texas Mktg. Corp.), 12 F.3d 497, 501 (5th Cir.1994); s ee also

Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir.1976). Thus, that

part of t he district court's order granting summary judgment to

Administaff on all claims and to H & R Block on the contract claims8

is void.

C. Discrimination Claims Against H & R Block

Turning to the sex and age discrimination claims against H &

R Block, Meinecke contends that the district court erred in

granting summary judgment on these claims because she presented

sufficient evidence to raise a genu ine issue of material fact

regarding the reasons for her forced retirement. Specifically,

Meinecke argues that this evidence established a prima facie case

of sex and age discrimination and demonstrated that H & R Block's

proffered reasons for her retirement were pretextual. H & R Block

responds that Meinecke could not meet her burden of proving

discrimination because she was legitimately terminated as part of

H & R Block's plan to close its Houston headquarters office.

Title VII provides that "[i]t shall be an unlawful employment

p ractice for an employer—(1) to fail or refuse to hir e or to

discharge any individual

... because of such individua l's race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e2(a)(1). The ADEA proscribes similar treatment on the basis of

a ge. 29 U.S.C. § 623(a)(1). The same evidentiary procedure for

allocating burdens of proof applies to discrimination claims under

both statutes. B odenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n.

4 (5th Cir.1993); F ields v. J.C. Penney Co., 968 F.2d 533, 536 n.

2 (5th Cir.1992). Initially, the plaintiff must establish a prima

facie case of discrimination. M cDonnell Douglas Corp . v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1 973);

Bodenheimer, 5 F.3d at 957. The prima facie case, if established,9

raises a presumption of discrimination, which the defenda nt must

rebut by articulating a legit imate, nondiscriminatory reason for

its actions. T exas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 254, 101 S.Ct. 1 089, 1094-95, 67 L.Ed.2d 207 (1981);

Bodenheimer, 5 F.3d at 957. If the defendant satisfies this

burden, the presumption disappears, and the p laintiff must prove

that the proffered reasons are a pretext for discrimination. St.

Mary's Honor Ctr. v. Hicks,

--- U.S. ----, ----, 113 S.Ct. 2742,

2747, 125 L.Ed.2d 407 (1993); B odenheimer, 5 F.3d at 957. The

plaintiff retains the ultimate burden of persuasion throughout the

case. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

To establish a prima facie case of discrimination under Title

VII, a plaintiff must prove that: (1) she is a member of a

protected class; (2) she was qualified for the position that she

held; (3) she was discharged; and (4) after being discharged, her

employer replaced her wit h a person who is not a member of the

protected cla ss. See Vaughn v. Edel, 918 F.2d 517, 521 (5th

Cir.1990). In cases where the employer discharges the plaintiff

and does not pl an to replace her, we have held that the fourth

element is, "more appropriately, that after [the] discharge others

who were not members of the protected class remained in similar

positions." I d. The first three elements of a prima facie case of

age discrimination under the ADEA are identical to the first three

elements of a Title VII prima facie case. Bodenheimer, 5 F.3d at

957. The fourth element is similar, although we have worded it

somewhat differently: The plaintiff must show that "[s]he was10

either i) replaced by someone outside the protected class, ii)

replaced by someone younger, or iii) otherwise discharged because

of [her] age." I d. The third alternative of this last element

applies in circumstances where the plaintiff is not replaced. S ee

Armendariz v. Pinkerton Tobacco Co., 58 F.3d 14 4, 150 (5th

Cir.1995). Because the requirements under both statutes are

essentially the same, we will analyze them together.

The parties agree that Meinecke has established the first

three elements of her prima facie case. They dispute, however,

which version of the fourth element of the pr ima facie case is

applicable and, in either case, whether Meineck e has made the

requisite showing. Meinecke contends that this is a "replacement"

case rather than a "reduction in force" case. Specifically, she

points out that Ken Treat of HRB/STI assumed her duties after she

left H & R Block, that Ilah Merriman did not anno unce Meinecke's

retirement as part of a reduction in force, and that the Houston

offices which she oversaw as part of her duties have continued to

function. H & R Block counters that this is a "reduction in force"

case because it closed the entire Houston headquarters office where

Meinecke was employed and because no one replaced Meinecke at her

position. Rather, her duties were incorporated into the job

responsibilities of other employees.

We agree with H & R Block that this is a "reduction in force"

case. The evidence clearly establishes that H & R Block closed the

Houston headquarters office where Meinecke worked and abolished her

position as p art of the reorganization plan that accompanied5 Meinecke contends that Treat should actually be viewed as

an employee of Michael Merriman because Merriman is a beneficiary

of each of the three separate trusts that owned H & R Block and

HRB/STI at the time she was terminated and because Merriman later

became an Assistant Vice President of HRB/STI. Whatever

Merriman's beneficial ownership interests are, Treat remained at

all times an employee of HRB/STI and maintained his position

there in addition to performing duties as a consultant for H & R

Block under the management agreement. Given these facts, we

cannot say that Meinecke has raised a genuine issue of material

fact as to whether Treat "remained in a similar position" with H

11 Michael Merriman's purchase of th e business. Other entities

assumed the functions of the headquarters office, and Meinecke's

managerial role in particular was obviated by the contract between

H & R Block and HRB/STI, whereby the latter agreed to assist

Michael M erriman in managing H & R Block. However the Merrimans

characterized Meinecke's departure from H & R Block, it cannot be

said that she was replaced in her position. The evidence presented

by Meinecke does not raise a fact question on this point.

Because this is a "reduction in force" case, Meinecke must

prove as the fourth elements of her prima facie cases of sex and

age discrimination that males remained in similar position s and

that she was otherwise discharged because of her age. A rmendariz,

58 F.3d at 150; Bodenheimer, 5 F.3d at 957; Vaughn, 918 F.2d at

521. With respect to her Title VII claim, Meinecke argues that she

has shown that Ke n Treat remained in a position similar to hers

when she was discharged. While Treat may have assumed many of the

duties that Meinecke had performed before she left H & R Block, he

did so as an employee of another company, HRB/STI, which had agreed

to provide managerial consulting services pursuant to a management

agreement. 5 Further, H & R Block eliminated Meinecke's position& R Block after her forced retirement.

12 and closed the headquarters office where she worked. Under these

facts, Meinecke cannot show that male s remained in similar

positions after she was discharged.

With respect to her ADEA claim, Meinecke contends that Ilah

Merriman's alleged statement about Michael wanting a younger person

with whom to work and the fact that her departure was characterized

as a "retirement" create a genuine i ssue of material fact as to

whether she was otherwise discharged because of her age. We

disagree. Meinecke was not the only H & R Block employee affected

by the reorganization of the business. When H & R Block closed the

Houston headquarters office, it laid off seven other emplo yees,

including six under the age of forty. Accordingly, we concur with

the district court's conclusion that, "[w]hile Ms. Merriman's

alleged statement may reveal Michael Merriman's true feelings, it

does not, in light of the reduction of force, show that age was a

factor in his decision not to continue Meinecke's employment." In

sum, we hold that H & R Block was entitled to summary judgment on

both the sex and age discrimination claims.

III. CONCLUSION

For the foregoing reasons, we AFFIRM in part and REVERSE in

part the district court's grant of summary judgment in favor of H

& R Block and Administaff and REMAND with instructions that the

district court reform the judgment to reflect the dismissal of all

claims against Administaff and the breach of contract claims

against H & R Block. Each party shall bear its own costs.13