* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined that this opinion should not be published and is not prec e dent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED March 6, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________ No. 06-10854 (Sum mary Calendar)

_________________ FRANK HORAK,
Pl aint iff- Appellant,
versus GLAZER’S WHOLESALE DRUG COMPANY, INC, doing business as Glazer Distributors, Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Texas USDC No. 3:05-CV-901
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM: * Frank Horak (“Horak”) appeals from the district court’s grant of summary judgment in favor of his fo rm

er employer, Glazer’s Who lesale Drug Company, Inc. (“Glazer’s”), on his claims of age-2-

d iscriminat io n in vio lat io n of the Age Discriminat io n in Em ployment Act, 29 U.S.C. §§ 621 -634 (“ADEA”), and the Texas Com missio n on Human Rights Act, T EX . LABOR C ODE ANN . §§ 21.001- 21.556 (“TCHRA”). We affirm. Horak’s claims arise from the term inat io n of his employment wit h Glazer’s, a wholesale liquor distribution business. Horak had been an employee of Longhorn Liquors (“Longhorn”) for more than thirty years when Longhorn was acquired by Glazer’s in November 2002. At th at time, Horak, age 57, was Longhorn’s Executive Vice President of Sales and was earning an annual salary of $144,000, alo ng wit h a $22,000 bonus. Aft er the acquisition, Glazer’s hired all Longhorn employees who were int erested in positions wit h Glazer’s, including Horak. Horak worked for Glazer’s in an unspecified role until February 2003, when Glaz er’s created a key account manager position for him in the
com pany’s Mustang Spirits Divisio n, which serviced the Dallas and Fort Wo rth areas. Horak retained his salary and bonus structure. Unlike the Mustang Divisio n’s other key account managers, Joe Duncan (“ Duncan”) and Cameron Young (“Young”), who were responsible fo r managing Glazer’s relationships wit h specific chain accounts, Horak’s day-to-day jo b duties were not specifically defined. Instead, he reported to general sales manager Danny O’Donovan (“O’Donovan”), who assigned Horak a variety of tasks, including performing pricing surveys, advising Glazer’s salespeople, and maintaining his (Horak’s) lo ng-standing relationships in the industry. To keep himself and his supervisor, regional sales manager Tim McNamara (“McNamara”), apprised of Horak’s day-to-day activit ies, O’Donovan asked Horak to prepare it ineraries outl ining the duties to which he would be attending each day. It is undisputed that O’Donovan was satisfied with Horak’s job performance. During the fall o f 2003, Gl azer’s senior management reviewed the company’s financial1 The other management positions eliminated were a key account manager po sit io n in

Glazer’s Cactus Divisio n, which was held by 48-year-old Mary Ellen Wilbur, and an event manager position in the Cactus Division, which was held by 32-year-old Coleen Mahoney Mowery. -3- performance and became concerned about the prof it abilit y of it s Texas operations. Alt hough fourth quarter revenues had increased by mo re than twenty-five percent over the same period in 2002, prof it s had increased by only one percent. Hoping to achieve greater profitability, Glazer’s tasked the president of it s Texas operations, Ralph Townes (“Townes”), wit h exploring ways to lo wer the
com pany ’s operating costs in Texas. Thus, in early 2004, Townes instructed the regional vicepresidents in T exas to review their respective workforces and identify positions that could be eliminat ed wit hout negatively affecting operations or prof it abilit y. Skip Carleton (“Carleton”), who
was the regional vice-president fo r North Texas, met wit h McNamara to review the workforce in the Mustang Divisio n. McNamara reported that he believed Horak’s position was nonessential and could be eliminat ed without impacting the Mustang Division’s operations. Based on his discussions with McNamara, his understanding of Horak’s jo b duties, and the fact th at Horak’s salary was mo re th an twice th at of the other Mustang Divisio n key account managers and also exceeded the salaries of O’Donovan and McNamara, both of whom were Horak ’s superiors, Carleton recom mended to Townes th at Horak’s position and two other management positions in Glazer’s Dallas branch be eliminat ed. 1 Because there was no other management position available fo r Horak in Glazer’s North Texas divisio n, Townes decided to term inat e Horak’s employment
. On July 30, 2004, Townes and Glazer’s director of human resources, Charles Harmount (“Harmount”), met with Horak to inform him that his position was being eliminated due to economic reasons. Horak was 59 years old at the time. Horak was of

fered a severance package, which he eventually refused, and his termination was-4-

processed on Septem

ber 10, 2004. Upon Horak’s termination, his job duties were redistributed
amo ng the other employees in the Mustang Divisio n. No one was hired to replace Horak, nor were any o ther management positions added to the Mustang Division. Horak subsequently brought this suit against Glazer’s, alleging that he was wrongfully term inat ed on account of his age. Glazer’s moved for summary judgment, which the district court granted upon finding that Horak had failed to establish a prima facie case of age discrimination and had failed to raise a genuine issue of mat erial fact th at Glazer’s decision to term inat e his employment was either a pretext for or motivated by age discrimination. Horak argues th at the district court erred in granting summary judgment fo r Glazer’s. We review the district court’s grant of summary judgment de novo , applying the same legal standard as t he district court. R achid v. Jack in the Box, Inc. , 376 F.3d 305, 308 (5th Cir. 2004). Summary judgment is appropri ate when the evidence “show[s] th at there is no genuine issue as to any mat erial fact and th at the mo ving party is entitled to a judgment as a mat ter of law.” FE D R. C IV . P. 56(c). We review all facts in the light most favorable to Horak. Rachid , 376 F.3d at 308. The ADEA and the TCHRA prohibit employers from discharging or otherwise discriminat ing against any individual because of his or her age. S ee McClaren v. Morrison Mgmt. Specialists, Inc. , 420 F.3d 457, 461 (5th Cir. 2005). The familiar burden-shifting framework set forth in M cDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) governs Horak’s claims under both statutes. Evans
v. City of Houston , 246 F.3d 344, 349 (5th Ci r. 2001). Under this framework, Horak carries the init ial burden of establishing a prima facie ca se of age discrimination. M achinchick v. PB Power, Inc. , 398 F.3d 345, 350 (5th Cir. 2005). If he succeeds, the burden shifts to Glazer’s to provide a legit imat e, nondiscriminatory reason for terminating Horak’s employment
. I d. If Glazer’s satisfies-5-

this burden, the burden shifts back to Horak to prove eit her th at Glazer’s proffered reason was not true but was inst ead a pretext fo r age discriminat io n, or th at even if Glazer’s reason is true, Horak’s age was still a motivating factor for the termination. Rachid , 376 F.3d at 312. Horak devotes a substantial portion of his brief to arguing th at the district cou rt erred i n concluding th at he had failed to establish a prima f acie case of age discrimination. We need not address these arguments, however, because even assuming Horak can make out a prima facie case, the district court correctl

y concluded th at Horak failed to rebut Glazer’s legit imat e, nondiscriminatory reason for his termination. Glazer’s states that the decision to terminate Horak’s employment was made in connection wit h a state-wide review of the com pany’s workforce in an effo rt to increase profitability. Horak’s position was one of six positions eliminat ed in the Dallas branch and one of sixt y- five positions eliminat ed state-wide. Horak does not di spute that a reduction in force (“RIF”) can be a legitimate, non-discriminatory reason fo r term inat ing an em

ployee, but he contends that Glazer’s did not term inat e his employment for economic reasons. First, Horak attem

pts to cast doubt upon Glazer’s assertion th at i t was concerned with prof it abilit y by arguing (1) th at Horak’s team met it s “dollar volume” objective fo r the year preceding Horak’s May 2004 performance review wit h Glazer’s, realizing more than $87 million in revenues; (2) th at in June 2003, Glazer’s acquired a new com pany in Texas and hired 49 workers as part of th at acquisition, which could have explained the minimal increase in prof it abilit y in the fo urth quarter of 2003; and (3) th at Glazer’s acquired th ree other Texas com

panies and 250 of their em ployees between February 2004 and January 2005, which suggests th at Glazer’s was “healthy.” None of this evidence, however, challenges G lazer’s evidence that the company became concerned about the-6-

lagging prof

it abilit y of it s Texas operations in the fo urth quarter of 2003 and addressed th at problem by eliminat ing Horak’s and sixty-four other positions in a state-wide RIF. Neither the fact th at the Glazer’s was real

izing significant revenues nor the fact that there was an explanation for Glazer’s lagging fo urth quarter prof it s (Gl azer’s acquisition of a new distributorship and it s employees) calls int o question the com

pany’s assertion th at i

t conducted a RIF in response to profitability concerns. Horak next attacks Glazer’s decision-making process in selecting positions fo r eliminat io n. He com plains th at Glazer’s RIF was entirely subjectiv e because the company did not develop an objective system of ranking and evaluating it s employees in terms of their worth to the com pany or conduct a fo rmal cost-benefit analysis before deciding which employees to term inat e. Horak argues th at Glazer’s use of a subjective evaluatio n syst em perm it s the inference that his termination was pretextual. We disagree. Though it is true that Glazer’s did not employ a formal cost-benefit analysis in deciding which positions to eliminat e, th at does not indicate that Glazer’s based its termination decisions on subjective criteria. To the contrary , the undisputed evidence shows that Horak’s position was selected for elimination based on two objective factors: (1) Horak’s jo b duties largely overlapped wit h the jo b duties of the others in the Mustang Divisio n; and (2) Horak’s $144,000 salary
was mo re th an twice the salaries of the Mustang Divisio n’s two other key account managers, Duncan and Young, who were earning $64,000 and $66,500, respectively. But even if Glazer’s decisio nmaking process could be described as subjective in nature, “[t]he mere fact that an employer uses subjective criteria is not . . . sufficient evidence of pretext.” M anning v. Chevron Chem. Co., LLC , 332 F.3d 874, 882 (5th Cir. 2003). Horak also argues th at Glazer’s gave contradictory and inco nsist ent reasons fo r his term inat io n. Specifically, Horak complains that Townes first told him that he was being let go2 Horak al so cl aims t hat Glazer’s employee Don Pratt told him at some point that it was his

understanding th at Horak and another employee were only to be employed fo r a limit ed time aft er Glazer’s acquisition of Longhorn, and Horak argues th at this establishes th at Glazer’s has provided inco nsist ent explanations fo r his term ination. We agree with the district court that Pratt’s alleged statem ent does not give ri se to an inference of age discriminat io n, given th at (1) there is no evidence of Pratt’s position wit hin the com pany or of his invo lv ement in the decision to terminate Horak’s employment , and (2) nothing in the statem ent suggests th at Horak’s age had anyt hing to do wit h the term inat io n. 3 Horak’s argument that the district court erred in granting summary judgment on his mixedmo tives theory because that theory was not addressed in Glazer’s mo tion fo r summary judgment is wit hout merit
. This is not a case where the district court granted summary judgment on a ground that was not raised or addressed by the parties, cf. John Deere Co. v. Am. Nat’l Bank of Ford , 809 F.2d 1190, 1191-92 (5th Cir. 1987), nor is this a case where the mo ving party raised a new argument fo r the fir st time in it s reply brief, cf. Senior Unsecured Creditors’ Comm. of First Republic Bank Corp. v. FDIC , 749 F.Supp. 758, 772 (N.D.Tex.1990). Horak asserted the mixed-motives theory in his response brief as a basis for opposing Glazer’s summary judgment motion, and Glazer’s addressed the theory in it s reply brief. Accordingly, the theory was properly before the district court. -7- because “t hings weren’t working out,” but lat er said th at he was being let go fo r “economic reasons.” Glazer’s CEO, Bennett Glazer, subsequently told Horak that he was let go because his position

“ [was]n’t paying fo r it self.” The summary judgment record reveals that there was no th ing inco nsist ent about these explanations. Horak testified in his deposition that when he met with Townes and Harmount on July 30, 2004, Townes stated, “Things aren’t working out. We’re going to have to let yo u go.” When Horak asked why, Townes stated, “Economic reasons.” To wnes similarly testified t hat he informed Horak during the meeting that his position was being eliminat ed due to econom

ic r easons. Townes’s explanation is entirely consistent with Bennett Glazer’s understanding that Horak was terminated because his position was not paying for itself. 2 Horak next contends that even if Glazer’s explanation fo r his term inat io n is not pretextual, his age was still a mo tivating factor in the term inat io n decision. 3 In support of this assertion, Horak point s to evidence of the fo llo wing: (1) when he was term inat ed, his jo b duties wer e redistri buted-8-

amo ng mo re th an a dozen em ployees in the Mustang Division, whose ages ranged from 32 to 58; (2) the two key account managers whom Glazer’s retained, Duncan (age 58) and Young (age 46),
were both yo unger th an him; (3) he was the only employee O’Donovan asked to com plete daily it ineraries; and (4) he was not considered for positions th at became available at Gl azer’s following his term inat io n. The summary judgment record also establishes, however, that Glazer’s hired Horak when he was 57 years old; th at n o one at Gl azer’s ever made any negative age-related comments about Horak or anyo ne else; th at O’Donovan was sati sfied wit h Horak’s jo b performance and asked Horak to prepare daily it ineraries simply because Horak was the only key account manager whose day-to-day jo b duties were undefined; th at Horak’s salary was significant ly higher th an th ose of the Duncan and Young; th at the Glazer’s employees invo lved in the decision to el iminat e Horak’s position were in the same general age group as Horak; that the two other Dallas branch employees whose positions were eliminat ed were yo unger th an Horak; th at upon his term inat io n, Horak’s duties
were absorbed by existing employees, many of whom performed th ose duties before Horak’s arrival and mo st of whom were in their fo rties or fift ies; th at there were no management positions available fo r Horak at th e time o f his t ermination; and that Horak did not apply for another position wit h Glazer’s aft er his term

inat io n. In light of these facts, and considering the summary judgment evidence
as a whole, we agree wit h the district court th at Horak has failed to raise so much as a genuine issue of fact as to whether his age was a motivating factor in Glazer’s decision to eliminate his position. Because Horak’s evidence is insufficient to give ri se to an inference th at Glazer’s reason fo r term inat ing his employment is a pretext fo r age discriminat io n or th at age was a mo tivating factor in his discharge, the district court properly granted summary judgment to Glazer’s. We AFFIRM.