IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60745

DEBBIE KOPSZYWA, 

 Plaintiff - Appellant

v.

HOME DEPOT USA, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC 1:12-CV-394

Before DAVIS, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Debbie Kopszywa (“Kopszywa”) filed this suit, 

alleging that her former employer, Defendant-Appellee Home Depot USA, 

Incorporated (“Home Depot”), subjected her to age discrimination, sex 

discrimination, and retaliation in violation of Title VII and the Age 

Discrimination in Employment Act (“ADEA”). Kopszywa appeals the district 

court’s order granting summary judgment in Home Depot’s favor on all of her 

 

* 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

August 11, 2015

Lyle W. Cayce

Clerk

 Case: 14-60745 Document: 00513150340 Page: 1 Date Filed: 08/11/2015
No. 14-60745

2

claims. Because Kopszywa has not raised a genuine issue of material fact on 

the issue of pretext, we affirm.

I.

Home Depot hired Kopszywa as a loss prevention manager at its

Gulfport, Mississippi location in 1999. Kopszywa rose through the ranks to 

become the store manager at Home Depot’s location in Picayune, Mississippi

in 2010. With the exception of a single occasion where Home Depot gave 

Kopszywa an adverse performance notice because her store failed to post a 

promotional sign, Home Depot did not give Kopszywa any negative 

employment evaluations or discipline/performance notices during the first 

decade of her employment with the company.

Just a few months after Kopszywa began managing the Picayune store,

Scott Murry (“Murry”)1 transferred from a Home Depot district in Oregon to 

become the manager of Kopszywa’s district in Mississippi. Murry is a male who 

is approximately fifteen years younger than Kopszywa. Murry and Kopszywa 

had no problems with each other at first, and Murry did not give Kopszywa 

any adverse discipline/performance notices during the first few months of his 

tenure in Mississippi. In March 2011, Murry gave Kopszywa a largely positive 

performance review.

However, in July 2011, Murry gave Kopszywa a written adverse 

performance notice. Murry disciplined Kopszywa for failing to keep products 

in stock. Kopszywa admits that her store did not keep enough tubs in stock, 

but denies that her store had any of the other problems that Murry listed in 

 

1 The record is inconsistent with respect to whether Murry’s name is spelled “Murry” 

or “Murray.” Following the district court’s lead, we will use “Murry.”

 Case: 14-60745 Document: 00513150340 Page: 2 Date Filed: 08/11/2015
No. 14-60745

3

performance notice. Kopszywa also claims that it was impossible for her to 

restock the tubs before Murry inspected her store.

Murry gave Kopszywa a second written notice in August 2011. Kopszywa 

had permitted an assistant store manager to stay at her apartment in 

Picayune. Several employees had complained that this created an appearance 

of favoritism in the store, and Murry agreed. Kopszywa claims that Home 

Depot never told her that allowing employees to stay in her apartment would 

violate company policy.

A week later, Murry gave Kopszywa a verbal disciplinary notice for 

smoking a cigarette in her work apron outside the store.

Murry gave Kopszywa a third written notice in October 2011 and a 

fourth notice in November 2011. Each notice cited a number of Home Depot 

directives that Kopszywa had allegedly failed to implement. Kopszywa denies 

committing some of the disciplinary violations listed in the October and 

November notices.

Around this time, Kopszywa contacted the district’s human resource 

department “on a weekly basis about her concerns about [Murry’s] treatment 

of [her].” Kopszywa’s affidavit states: “I told [the HR employee] I had realized 

I was a target for termination and, on several occasions, told her I believed this 

was because of my gender and my age.”2 The HR department notified Murry 

that Kopszywa had reported these concerns.

Home Depot recommended Kopszywa for termination in December 2011. 

Home Depot relied on the four written disciplinary notices that Murry gave 

Kopszywa, as well as an assortment of other violations that Kopszywa 

allegedly committed, when submitting her severance package request. 

 

2 Home Depot argues that the Court should disregard this statement in Kopszywa’s 

affidavit. As explained below, Kopszywa has failed to demonstrate a genuine issue of material 

fact even if we consider the affidavit.

 Case: 14-60745 Document: 00513150340 Page: 3 Date Filed: 08/11/2015
No. 14-60745

4

Although Murry was the Home Depot employee who initiated the termination 

process, several other employees – many of whom are female – also 

participated in the decision.

Home Depot ultimately terminated Kopszywa on January 6, 2012. 

Kopszywa was fifty-eight years old at that time. Home Depot replaced 

Kopszywa with a younger male employee. Kopszywa claims that Home Depot 

unlawfully terminated her on the basis of age and sex, as well as in retaliation 

for complaining to HR about Murry’s discriminatory treatment of her.

After exhausting her administrative remedies, Kopszywa sued Home 

Depot for (1) age discrimination under the ADEA; (2) sex discrimination under 

Title VII; and (3) retaliatory discharge.3 Importantly, Kopszywa alleges that 

Murry is the only employee who discriminated against her at Home Depot.

The district court granted summary judgment in Home Depot’s favor on 

all of Kopszywa’s claims. The district court ruled that Kopszywa failed to raise 

a genuine dispute of material fact on the issue of pretext with respect to any of 

her claims. Kopszywa now appeals that judgment.

II.

“We review the grant of a motion for summary judgment de novo, 

applying the same standard as the district court.”4 “The court shall grant 

summary judgment 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.”5

 

3 Kopszywa also raised a hostile work environment claim against Home Depot in the 

district court, but she does not pursue that claim on appeal.

4 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citing Threadgill v. 

Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998)).

5 FED. R. CIV. P. 56(a).

 Case: 14-60745 Document: 00513150340 Page: 4 Date Filed: 08/11/2015
No. 14-60745

5

“When considering a motion for summary judgment, the court views all facts 

and evidence in the light most favorable to the non-moving party.”6

III.

We shall first consider Kopszywa’s discrimination claims. Kopszywa’s

age discrimination claim is based almost entirely on the same evidence as her 

sex discrimination claim, so we will analyze those two claims simultaneously.7

Kopszywa relies solely on circumstantial evidence to support her 

discrimination claims. As a result, the McDonnell Douglas8 three-step burdenshifting framework applies. First, Kopszywa must produce sufficient evidence 

to support a prima facie case of discrimination.9 If she does so, the burden then 

shifts to Home Depot to “articulate a legitimate, nondiscriminatory reason” for 

the adverse employment action.10 Then, if Home Depot meets that burden, 

Kopszywa must produce sufficient evidence that Home Depot’s proffered 

reason for terminating her is a pretext for discrimination.11

Home Depot concedes for the purposes of this appeal that Kopszywa has 

established a prima facie case for age and sex discrimination. Home Depot has 

articulated a “legitimate, nondiscriminatory reason” for terminating 

Kopszywa: poor work performance. Specifically, Home Depot contends that 

Kopszywa repeatedly failed to abide by company policies and directives.

 

6 Moss, 610 F.3d at 922 (citing United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 

283, 285 (5th Cir. 2006)).

7 See Munoz v. Seton Healthcare, Inc., 557 F. App’x 314, 319-20 (5th Cir. 2014) (per 

curiam) (“Because Munoz’s claims under Title VII [and] the ADEA . . . involve the same 

conduct alleged above, we discuss them together.”).

8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

9 Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (citing Burrell v. Dr. 

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th Cir. 2007)).

10 Id. (citing Burrell, 482 F.3d at 412).

11 Id. (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

 Case: 14-60745 Document: 00513150340 Page: 5 Date Filed: 08/11/2015
No. 14-60745

6

Therefore, the only question is whether Kopszywa has demonstrated a genuine 

dispute of material fact on the issue of pretext.

An employee creates a genuine dispute of material fact on the issue of 

pretext if she produces sufficient evidence “that the legitimate reasons offered 

by the defendant were not its true reasons.”12 “An employee can show pretext 

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

employer’s proffered explanation is false or unworthy of credence.’”13

Kopszywa first argues that the district court applied an incorrect legal 

standard when evaluating her pretext evidence. According to Kopszywa, the 

district court improperly required her to not only produce evidence that Home 

Depot’s proffered reason was false, but also to produce evidence “that 

discrimination was the real reason” for the adverse employment action. 

Kopszywa claims that the district court’s statement of the law contradicts the 

Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc.14

We find no fault with the district court’s recitation of the applicable legal 

principles. Reeves merely holds that it is generally “permissible for the trier of 

fact to infer the ultimate fact of discrimination from the falsity of the 

employer's explanation.”15 The Reeves court explicitly noted that evidence of 

pretext will not always be sufficient to survive summary judgment.16

 

12 Squyres v. Heico Cos., 782 F.3d 224, 231 (5th Cir. 2015) (quoting Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

13 Id. (quoting Moss, 610 F.3d at 922).

14 530 U.S. 133.

15 Id. at 147 (emphasis in original).

16 Id. at 148 (citations omitted) (“Certainly there will be instances where, although the 

plaintiff has established a prima facie case and set forth sufficient evidence to reject the 

defendant's explanation, no rational factfinder could conclude that the action was 

discriminatory.”).

“Although Reeves was based on a motion for judgment as a matter of law, the standard 

is the same for summary judgment.” Price v. Fed. Express Corp., 283 F.3d 715, 720 n.1 (5th 

Cir. 2002) (citing Pratt v. City of Hous., 247 F.3d 601, 607 n.3 (5th Cir. 2001)).

 Case: 14-60745 Document: 00513150340 Page: 6 Date Filed: 08/11/2015
No. 14-60745

7

After reviewing the parties’ arguments and the entirety of the summary 

judgment record, we conclude that the district court did not reversibly err in 

granting summary judgment to Home Depot on Kopszywa’s discrimination 

claims. Kopszywa admits that she committed numerous disciplinary 

violations. Those violations alone could form a lawful basis for her 

termination.17 Although Kopszywa denies that she committed some of the 

other disciplinary violations that Home Depot cited in her severance package 

request, “a fired employee’s actual innocence of h[er] employer’s proffered 

accusation is irrelevant as long as the employer reasonably believed it and 

acted on it in good faith.”18 There is no evidence that Murry did not or could 

not reasonably believe that Kopszywa committed the violations in question.

Kopszywa’s other categories of evidence are not probative of pretext either.

IV.

We now turn to Kopszywa’s retaliation claims. Kopszywa alleges that 

Murry retaliated against her because she reported to Home Depot’s human 

resource director “on a weekly basis about her belief that [Murry] was targeting 

her for termination because of gender and/or age.” The summary judgment 

record does not contain written records of Kopszywa’s complaints to HR, which 

would have been discoverable if they existed. Nevertheless, Kopszywa’s 

affidavit suggests that she spoke with an HR representative about Murry every 

week of the “last six months of [her] employment with Home Depot,” which 

would have been around the time that Murry gave her the second disciplinary 

notice.

 

17 See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (“Our 

job as a reviewing court conducting a pretext analysis is not to engage in second-guessing of 

an employer’s business decisions.” (citations omitted)). 

18 Cervantez v. KMGP Servs. Co., 349 F. App’x 4, 10 (5th Cir. 2009) (citing Waggoner 

v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993)).

 Case: 14-60745 Document: 00513150340 Page: 7 Date Filed: 08/11/2015
No. 14-60745

8

The district court ruled that Kopszywa failed to produce sufficient 

evidence that Home Depot would not have terminated her “but for” her 

protected activities. For the following reasons, we agree.19

The McDonnell Douglas three-step burden-shifting framework governs 

Kopszywa’s retaliation claims under Title VII and the ADEA just as it governs 

her discrimination claims.20 We will assume arguendo that Kopszywa has 

established a prima facie case. Again, Home Depot has satisfied its burden to 

articulate a legitimate, non-discriminatory reason for terminating Kopszywa: 

poor work performance. “Therefore, the ultimate issue is whether [Home 

Depot] unlawfully retaliated against [Kopszywa] for exercising protected 

activity.”21

“In order to avoid summary judgment” on a retaliation claim, “the 

plaintiff must show ‘a conflict in substantial evidence’ on the question of 

whether the employer would not have taken” the challenged adverse 

employment action “‘but for’ the protected activity.”22 As a matter of law, “‘[b]ut 

for’ causation . . . cannot be established by temporal proximity alone.”23

Temporal proximity may only create a genuine dispute of material fact on the 

issue of but-for causation if the employee also introduces other probative 

evidence of pretext.24

 

19 Home Depot asks us to disregard Kopszywa’s affidavit when evaluating the 

summary judgment evidence. Kopszywa’s retaliation claim fails even if we consider her

affidavit, so we need not reach this issue.

20 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (Title VII); Sherrod 

v. Am. Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998) (ADEA).

21 Sherrod, 132 F.3d at 1122.

22 Feist v. La. Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 454 (5th Cir. 

2013) (quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)) (Title VII). See also 

Sherrod, 132 F.3d at 1122 (ADEA).

23 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir. 2012) (citing Strong 

v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)).

24 Id. (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 

1999)).

 Case: 14-60745 Document: 00513150340 Page: 8 Date Filed: 08/11/2015
No. 14-60745

9

On appeal, Kopszywa relies solely on temporal proximity to support her 

retaliation claims. Thus, as a matter of law, she has not created a genuine 

dispute of material fact on the issue of but-for causation.25 Moreover, even if 

we considered the pretext evidence that Kopszywa advanced to support her 

discrimination claim, that evidence is insufficient to create a genuine dispute 

of material fact. The district court therefore properly granted summary 

judgment in Home Depot’s favor on her retaliation claims.

AFFIRMED.

 

25 See id. (citing Strong, 482 F.3d at 808).

 Case: 14-60745 Document: 00513150340 Page: 9 Date Filed: 08/11/2015