IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20411

L. WAYNE JACKSON,

Plaintiff–Appellant,

v.

CAL-WESTERN PACKAGING CORPORATION,

Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

Before SMITH, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Wayne Jackson appeals the district court’s grant of summary judgment on

his age discrimination claims under the Age Discrimination in Employment Act,

29 U.S.C. §§ 621-634. For the following reasons, we affirm. 

I

Jackson was employed by Cal-Western Packaging Corporation in various

managerial positions from 1999 until June 2007. In May 2007, one of Jackson’s

coworkers, Karen Hopper, emailed her supervisor, Cal-Western Controller

James Rosetti, asserting that Jackson had been engaging in behavior that made

United States Court of Appeals

Fifth Circuit

F I L E D

March 2, 2010

Charles R. Fulbruge III

Clerk

Case: 09-20411 Document: 00511039668 Page: 1 Date Filed: 03/02/2010
No. 09-20411

2

her “uncomfortable.” She explained that Jackson had asked to see her

“[breasts]” and had commented that her boyfriend must like “big boobs.” She

stated that Jackson had “on many occasions” made inappropriate statements or

comments in front of her and her female coworkers. In addition, she told her

supervisor that every time she saw Jackson he tried to touch her and that he

had once cornered her and asked her to raise her shirt. Rosetti then informed

Chief Operating Officer Jimmy Phelps of Jackson’s behavior. Phelps began an

internal investigation and interviewed several employees who corroborated the

allegations. To confirm the findings, Phelps hired an attorney, Victoria Phipps,

to conduct an external investigation into Jackson’s behavior. Her interviews

with both male and female coworkers confirmed the harassment allegations.

And when Phipps interviewed Jackson, he admitted that he was “vindictive” and

would try “legally” to get back at those making allegations against him. 

In June 2007, Phelps terminated Jackson for his non-compliance with the

company’s sexual harassment policy, which Jackson had signed when he was

hired in 1999. Jackson was sixty-nine years old when he was terminated. He

was replaced by Monte Duke, who was forty-two at the time.

Jackson brought suit against Cal-Western for age discrimination. His

claim primarily relied on a remark Phelps allegedly made to another coworker

in 2006 that Jackson was an “old, gray-haired fart” and that the coworker would

be in charge when Jackson retired. Cal-Western moved for summary judgment.

The district court ruled that Jackson had alleged a prima facie case of

discrimination and that Cal-Western had offered a legitimate, nondiscriminatory reason for firing him, but that Jackson had failed to show that

there was a fact issue as to whether Cal-Western’s reason for firing him was

pretextual. Jackson argues on appeal that the district court decided factual

issues at the summary judgment stage and improperly relied on incompetent

summary judgment evidence in its ruling.

Case: 09-20411 Document: 00511039668 Page: 2 Date Filed: 03/02/2010
No. 09-20411

DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005). 1

E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007). 2

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

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). 4

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). 5

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 6

3

II

Jackson first challenges the district court’s reliance on several sworn,

notarized affidavits tendered by Cal-Western as summary judgment evidence.

Jackson argues that the affidavits are not competent summary judgment

evidence since they do not state that they were sworn to be “true and correct.”

Jackson’s argument is without merit. The cases on which he relies all

relate to unsworn affidavits. None of the statements at issue in this case were

unsworn. Additionally, we have expressly held that “there is no requirement

that sworn affidavits have a statement that the contents are ‘true and correct.’”1

“Sworn affidavits . . . are certainly appropriate for review on a Rule 56 motion

for summary judgment.” Accordingly, the district court properly relied on the 2

sworn affidavits.

III

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

the same standard as the district court. We view the evidence in the light most 3

favorable to the non-moving party and avoid credibility determinations and

weighing of the evidence. Summary judgment is appropriate when the 4

competent summary judgment evidence demonstrates that there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter

of law. An issue of material fact is genuine if a reasonable jury could return a 5

verdict for the nonmovant.6

Case: 09-20411 Document: 00511039668 Page: 3 Date Filed: 03/02/2010
No. 09-20411

Sandstad, 309 F.3d at 896. 

7

 411 U.S. 792 (1973). 8

See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). 9

Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (quoting Sandstad,

10

309 F.3d at 896).

Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990) (internal quotation marks and

11

citation omitted).

See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002). 12

See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003). 13

4

In employment discrimination cases, a plaintiff may rely on direct or

circumstantial evidence, or both. If a plaintiff relies on circumstantial evidence, 7

the burden-shifting test outlined in McDonnell Douglas v. Green applies. But 8

if there is direct evidence of employment discrimination, the McDonnell Douglas

test is inapplicable. In such a case, the plaintiff must produce direct evidence 9

that “discriminatory animus played a role in the decision at issue.” Defendants 10

can rebut direct evidence “only by showing by a preponderance of the evidence

that they would have acted as they did without regard to the plaintiff’s [age].”11

Jackson argues that Phelps’s purported comment that he was an “old,

gray-haired fart” is direct evidence of age discrimination. But since Jackson did

not make this argument in his response to summary judgment before the district

court, he is precluded from raising it on appeal. Moreover, the comment is not 12

direct evidence of discrimination. As we will discuss further infra, Jackson has

not shown that the comment was proximate in time to the termination or related

to the employment decision, and thus the comment cannot qualify as direct

evidence. Accordingly, we will consider Jackson’s claim under the McDonnell 13

Douglas burden-shifting analysis.

Case: 09-20411 Document: 00511039668 Page: 4 Date Filed: 03/02/2010
No. 09-20411

Machinchick, 398 F.3d at 352. 

14

Id. 

15

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). 16

Id. 

17

Machinchick, 398 F.3d at 352. 

18

Laxton, 333 F.3d at 578 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 US. 19

133, 143 (2000)).

Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (internal quotation 20

marks and citation omitted).

5

Under the McDonnell Douglas approach, a plaintiff must first demonstrate

a prima facie case of age discrimination. The defendant then has the burden 14

of articulating a legitimate, non-discriminatory reason for terminating the

plaintiff. If the defendant meets this burden, the presumption of 15

discrimination dissipates. Plaintiff then has the ultimate burden of proving 16

intentional discrimination. Thus on summary judgment, the plaintiff must 17

show that there is a genuine issue of material fact regarding either (1) whether

defendant’s reason was pretextual or (2) whether defendant’s reason was only

one reason for the conduct and another motivating factor was plaintiff’s

protected characteristic. A plaintiff may show pretext “either through evidence 18

of disparate treatment or by showing that the employer’s proffered explanation

is false or ‘unworthy of credence.’”19

To establish a prima facie case of age discrimination, “a plaintiff must

show 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.” The parties do not 20

dispute that Jackson has alleged a prima facie case of age discrimination since

Case: 09-20411 Document: 00511039668 Page: 5 Date Filed: 03/02/2010
No. 09-20411

See 29 U.S.C. § 631(a) (protecting individuals “who are at least 40 years of age”). 21

See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (explaining

22

that replacement by someone “substantially younger” can be an indicator of age

discrimination).

Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993). 23

6

he was terminated, qualified, forty years or older (and thus within the class

protected by the ADEA), and replaced by someone substantially younger. 

21 22

Nor do they dispute that Cal-Western has articulated a legitimate, nondiscriminatory reason for his termination with its explanation that Jackson was

fired for sexual harassment. The question is whether Jackson has shown that

there is a genuine issue of material fact as to whether this reason was pretextual

or whether age was otherwise a factor in Jackson’s termination.

Jackson asserts that the evidence in the record creates a factual issue as

to whether Cal-Western’s proffered reason was pretextual. Specifically, he

points to: (1) his own statements that he had not made sexually harassing

comments; (2) Phelps’s purported statement that he was an “old, gray-haired

fart,” (3) evidence that Cal-Western did not discipline younger employees who

engaged in similar commentary and/or emails, and (4) a coworker’s statement

that she did not perceive his alleged comments as sexual harassment.

Jackson’s self-serving statements that he did not commit sexual

harassment are insufficient to create a triable issue of fact as to whether CalWestern’s explanation is false. In cases in which an employer discharges an

employee based on the complaint of another employee, the issue is not the truth

or falsity of the allegation, but “whether the employer reasonably believed the

employee’s allegation and acted on it in good faith.” Cal-Western was faced 23

with a multitude of evidence that Jackson was violating the company’s sexual

harassment policy. The evidence came from several employees, both male and

female, and stemmed from both an internal and external investigation of

Case: 09-20411 Document: 00511039668 Page: 6 Date Filed: 03/02/2010
No. 09-20411

See id. at 1166. (explaining that, since bad faith is the issue, “[t]o the extent that

24

Waggoner’s summary judgment evidence relates to his innocence of the sexual harassment

charge, it is irrelevant”).

Cf. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (concluding that self25

serving statements were insufficient to overcome summary judgment, particularly when faced

with “overwhelming evidence” in opposition); United States v. Lawrence, 276 F.3d 193, 197

(5th Cir. 2001) (affirming summary judgment for the plaintiff when defendant’s only evidence

in opposition was his own “self-serving allegations”); BMG Music v. Martinez, 74 F.3d 87, 91

(5th Cir. 1996) (explaining that a “conclusory, self-serving statement” by defendant was

insufficient to create a triable issue of fact).

See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (stating that “[w]hen 26

evidence exists in the summary judgment record but the nonmovant fails even to refer to it

in the response to the motion for summary judgment, that evidence is not properly before the

district court”). 

Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).

27

7

Jackson’s behavior. Jackson has presented no evidence as to why the company’s

reliance on the evidence against him was in bad faith. His own conclusory

assertion that he did not behave inappropriately is irrelevant, since he has

provided no evidence to suggest that Cal-Western’s decision to trust the results

of the two investigations, rather than his self-serving denial of wrongdoing, was

unreasonable or in bad faith. Jackson’s assertion of innocence alone does not 24

create a factual issue as to the falsity of Cal-Western’s proffered reason for

terminating him.25

Jackson’s assertions that Cal-Western did not discipline younger

employees who engaged in similar behavior and that Jackson’s coworker stated

that his behavior did not amount to sexual harassment cannot be used to

establish triable issues of fact since he did not make these assertions in the

district court or refer to any evidence to this effect. (Nor does he refer to any 26

evidence of this nature in his brief to this court.) We have explained that “Rule

56 does not impose upon the district court a duty to sift through the record in

search of evidence to support a party’s opposition to summary judgment.”27

Case: 09-20411 Document: 00511039668 Page: 7 Date Filed: 03/02/2010
No. 09-20411

 Phelps and Sheets have both denied that Phelps made such a comment, but since we 28

do not make credibility determinations at the summary judgment stage, their denials are

irrelevant.

Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000)

29

(internal brackets and quotation marks omitted).

 We have explained that this circuit’s stray remarks doctrine survived the Supreme

30

Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). See

Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (noting that a postReeves decision by which we are bound, Rubinstein, 218 F.3d 392 (5th Cir. 2000), interpreted

Reeves not to overrule the stray remarks doctrine); cf. Russell v. McKinney Hosp. Venture, 235

F.3d 219, 229 (5th Cir. 2000) (explaining that we should view the stray remarks doctrine

“cautiously” after Reeves). 

Rubinstein, 218 F.3d at 401; see also Waggoner v. City of Garland, 987 F.2d 1160,

31

1166 (5th Cir. 1993) (“[A] mere ‘stray remark’ is insufficient to establish age discrimination.”).

8

Because Jackson did not identify any such evidence in his opposition to

summary judgment, we will not consider his argument in this regard.

Finally, we turn to Phelps’s alleged comment. In his deposition, Jackson

stated that coworker Donnie Sheets “told me one day in his office that [Phelps]

had told him that he was going to be in charge of all the plants when that old,

gray-haired fart retired, meaning me.” Jackson said that Sheets made this 28

comment to him “a couple of times,” but he did not discuss whether Phelps made

the comment to Sheets on more than one occasion. The district court concluded

that Phelps’s statement was a “stray remark.” 

We have explained that comments are only evidence of discrimination if

they are “1) related to the protected class of persons of which the plaintiff is a

member; 2) proximate in time to the complained-of adverse employment

decision; 3) made by an individual with authority over the employment decision

at issue; and 4) related to the employment decision at issue.” Comments that 29

do not meet these criteria are considered “stray remarks,” and standing alone, 30

are insufficient to defeat summary judgment.31

Case: 09-20411 Document: 00511039668 Page: 8 Date Filed: 03/02/2010
No. 09-20411

See Auguster, 249 F.3d at 405 (holding that a comment made nearly a year before the 32

adverse employment decision that appeared unrelated to the decision was a stray remark); see

also Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002) (holding that

a comment made two or more years before the employment decision at issue, that was

unrelated to the decision, was not evidence of discrimination); Wallace v. Methodist Hosp. Sys.,

271 F.3d 212, 222 (5th Cir. 2001) (stating that “where comments are vague and remote in time

they are insufficient to establish discrimination” (internal brackets and quotation marks

omitted)); Rubinstein, 218 F.3d at 401 (concluding that comments were stray remarks when

plaintiff had failed to offer evidence that they were proximate in time or related to his failure

to receive a raise or a promotion).

9

While Phelps’s alleged comment meets the first and third criteria, Jackson

has provided no evidence that the comment was proximate in time to his firing

or related to the employment decision at issue. Jackson maintains that Sheets

told him of Phelps’s comment on a visit to Memphis in the summer of 2006, but

it is unclear when Phelps actually made the comment. Still, even assuming that

the comment was made soon before Sheets reported it to Jackson, it was made

about a year before Jackson’s June 2007 termination. The comment appears

wholly unrelated to Jackson’s termination, and Jackson has not presented any

evidence to show otherwise.

This comment alone, or in combination with Jackson’s uncorroborated

denial of any sexual harassment, is insufficient to establish a triable issue of fact

as to pretext. The overwhelming evidence shows that Jackson was fired for 32

violation of Cal-Western’s sexual harassment policy, and Jackson’s only evidence

to the contrary comes from his own assertions. Without more, we simply cannot

conclude that there is a triable issue of fact as to whether Cal-Western

discriminated against Jackson based on age. 

* * *

Because no genuine issue of material fact exists as to Jackson’s claim

under the ADEA, we AFFIRM the district court’s grant of summary judgment

for Cal-Western.

Case: 09-20411 Document: 00511039668 Page: 9 Date Filed: 03/02/2010