United States Court of Appeals

Fifth Circuit



## FILED

June 25, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 03-10803

__________________________

AHMED P. RACHID,

Plaintiff - Appellant,

versus

JACK IN THE BOX, INC.,

Defendant - Appellee.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

___________________________________________________

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Ahmed P. Rachid (“Rachid”) fil ed an age discrimination claim under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, alleging that he was

terminated from his managerial position at Jack In The Box, Inc. (“JIB”). Because Rachid

established a prima facie case and because issues of material fact concerning JIB’s proffered

reason for terminating Rachid are disputed, summary judgment was improper and this2

case is REVERSED and REMANDED.

I. FACTS AND PROCEEDINGS

Rachid was employed by JIB from October 1995 to February 2001. Patrick Powers

(“Powers”) became Rachid’s supervisor in September 1999. Rachid managed two

restaurants, and shared managerial duties at one of the restaurants with Khalil Haidar

(“Haidar”). Powers repeatedly criticized Rachid, and, according to both Rachid and

Haidar, made disparaging comments about Rachid’s age. Rachid, who was 52 years old,

reported these comments to JIB’s human resources departmen t, and even requested a

transfer because he feared that Powers sought to fire him because of his age. A transfer

was never approved and Rachid was fired, according to JIB, for failing to follow policies

related to recording employee time.

The parties sharply join issue over whether Rachid violated company policy. On

June 15, 2000, Powers sent the following email to managers of JIB restaurants:

Each week I down load [sic] the “punch changes” at each store for the prior week.

I am concerned about the increased number of “punch changes” that are related to

BREAKS. Let me make clear if anyone alters an employee’s hours to save labor,

THEY [sic] ARE BREAKING THE LAW! This is the type of offense that I have no

ability to help an individual. Employees must punch out for breaks on there [sic]

own, M[anagers-In-Charge] need to verify that each employee punched out at the

clock. If an employee fails to punch out at the clock they [sic] are to be written up

on a P108 [disciplinary form]. NO MANAGER IS TO GO BACK AND DO A

PUNCH CHANGE WITHOUT A SIGNED P108 FOR PROOF! The P108 needs to

be kept in the employee file. If the employee contests their [sic] hours and there are

punch changes without a P108 for back-up documentation, the manager is putting

their [sic] job at risk. It becomes a case of “he said/she said” and the manager has

no proof that they [sic] didn’t “illegally alter” the time clock. The P108 is the only

protection you have against this kind of allegation.

Remember: “very few people have ever been fired for missing a number, but all1 JIB’s Employee Handbook directs employees in the following manner: “To

make sure there is agreement on what hours you worked, your Manager will post an

Hours Report at the end of each pay period for employees to check. If you don’t agree

with your hours on the report, let your Manager know immediately.”

2 Three of those employees reported alterations in their time-cards. Apparently,

none of the employees alleged that Rachid himself (as opposed to another manager)

altered his time-card during the period under investigation by Teal-Guess. Teal-Guess

informed Powers that certain employees in restaurants where Rachid was a manager

had improper deletions of time. Teal-Guess noted that it was Powers’s responsibility to

determine whether Rachid (or another manager) had made the improper changes.

3 that get caught reporting a false number will always be fired!” I cannot help you

out of this kind of problem.

The parties disputed whether this email sent by Powers represents JIB’s company policy. 1

One of JI B’s human resources employees, Kellie Teal-Guess (“Teal-Guess”),

investigated several “punch changes” entered for employees at restaurants that Rachid

managed. Though Rachid disputes whether this investigation revealed any time-card

alterations made by Rachid, 2 he concedes in his deposition that he occasionally changed

time-cards when employees took breaks, and that he did not fill out P108 forms for all of

t hose changes. Without further investigation, Powers terminated Rachid immediately

up on learning that he had altered time-cards without completing P108 forms. Rachid’s

replacement was 47 years old.

Rachid filed an EEOC charge complaining of age discrimination under the ADEA,

acquired a Right to Sue letter, and filed suit. The district court granted summary judgment

in favor of JIB and dismissed Rachid’s claim. Rachid timely appeals.

II. STANDARD OF REVIEW3

Under the McDonnell Douglas burden shifting approach: the plaintiff must

establish a prima facie case of discrimination; if the plaintiff meets that burden, the

defendant must produce a legitimate, non-discriminatory reason for its decision to

terminate the plaintiff; if the defendant meets its burden of production, the plaintiff

then has the opportunity to demonstrate that the defendant’s proffered reason for

termination is merely pretextual. West v. Nabors Drilling USA, Inc. , 330 F.3d 379, 383-

85 (5th Cir. 2003).

4 Desert Palace, Inc. v. Costa , 123 S. Ct. 2148 (2003).

4 This Court reviews a grant of summary judgment de novo, and applies the same

standard as the district court. T ravelers Cas. & Sur. Co. of Am. v. Baptist Health Sys.

, 313

F.3d 295, 297 (5th Cir. 2002). District courts properly grant summary judgment if, viewing

the facts in the light most favorable to the nonmovant, the movant shows that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter of

law. F ED

. R. C IV

. P. 56(c).

III. DISCUSSION

A. Proper legal standard for an ADEA claim.

It appears that the district court applied t h e McDonnell Douglas approach in

analyzing Rachid’s claim. See McDonnell Douglas Corp. v. Green

, 411 U.S. 792 (1973).

The district court’s opinion states that Rachid did not establish a prima facie case

, and later

notes that “nothing in the record suggests that J[IB]’s basis for terminating Rachid was a

pretext.” The term “pretext” strongly suggests that the district court engaged in a

McDonnell Douglas burden shifting analysis. 3 See McDonnell Douglas

, 411 U.S. at 804-05.

It is disputed, however, whether this is the proper legal framework.

(1) Age discrimination under the ADEA pre- Desert Palace

. 45

ADEA coverage extends to “[i]ndividuals at least 40 years of age.” 29 U.S.C. §

631(a).

5 Under the ADEA, “[i]t sh all be unlawful for an employer . . . to discharge any

individual or otherwise discriminate against any individual w ith respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate treatment,

liability depends on whether the protected trait (under the ADEA, age) actually motivated

the employer’s decision.” R eeves v. Sanderson Plu mbing Prods., Inc. , 530 U.S. 133, 141

(2000) (citing Hazen Paper Co. v. Biggins , 507 U.S. 604, 610 (1993)). To demonstrate 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.’” Palasota v. Haggar Clothing Co.

, 342 F.3d

569, 576 (5th Cir. 2003) (quoting Bodenheimer v. PPG Indus., Inc.

, 5 F.3d 955, 957 (5th Cir.

1993)). That is, regardless of how much younger his replacement is, a plaintiff in the

protected class 5 may still establish a prima facie case by producing evidence that he was

“discharged because of his age.” Palasota , 342 F.3d at 576 (quotations omitted).

A plaintiff can demonstrate age discrimination in two ways, either through:

direct evidence or by an indirect or inferential method of proof. Discrimination can

be shown indirectly by following the “pretext” method of proof set o u t in

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

If, however, plaintiff

produces direct evidence of discrimination, the

McDonnell Douglas test is “inapplicable.” The P rice Waterhouse [ v. Hopkins

, 490

U.S. 228 (1989)], mixed-motives theory of discriminat ion comes into play where6

direct evidence of discrimination is presented, but the employer asserts th at the

same adverse employment decision would have been made regardless of

discrimination. Although P rice Waterhouse can be characterized as a method to

prove dis

crimination, the mixed-motives theory is probably best viewed as a

defense for an employer. S ee Price Waterhouse

, 490 U.S. at 246 (“[T]he employer’s

burden is most appr opriately deemed an affirmative defense: the plaintiff must

persuade the factfinder on one point, and the employer, if it wishes to prevail, must

persuade it on another.”).

Unlike McDonnell Douglas

, which simply involves a shifting of the burden

of production

, Price Waterhouse involves a shift of the burden of persuasion to the

defendant. In other words, under P rice Waterhouse

, once a plaintiff presents direct

evidence of discrimination, the burden of proof shifts to the employer to show that

the same adverse employment decision would have been made regardless of

discriminatory animus. If the employer fails to carry this burden, plaintiff prevails.

. . . In summary, P rice Waterhouse and McDonnell Douglas are alternative

methodologies for proving discrimination.

Mooney v. Aramco Serv. Co.

, 54 F.3d 1207, 1216-17 & n.11 (5th Cir. 1995) (quotations and

citations omitted).

One district court in this Circuit recently described the mixed-motives analysis. “A

mixed-motives case arises when an employment decision is based on a mixture of

legitimate and illegitimate motives. . . . If the employee proves the unlawful reason was

a motivating factor, the employe r must demonstrate that it would have taken the same

action in the absence of the impermissible motivating factor. ” Louis v. E. Baton Rouge

Parish Sch. Bd.

, No. 01-493-B-M3, 2003 WL 23281538, at *2-3 (M.D. La. Dec. 19, 2003); see

also Medlock v. Ortho Biotech, Inc.

, 164 F.3d 545, 553 (10th Cir. 1999) (noting that a mixedmotives analysis applies “where the evidence is sufficient to al low a trier to find both

forbidden and permissible motives.”) (quotations and citations omitted). Whereas under

the pretext prong of the McDonnell Douglas analysis, the plaintiff a ims to prove that6

“Direct evidence is evidence that, if believed, proves the fact of discriminatory

animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc. , 309 F.3d

893, 897 (5th Cir. 2002). Although some of the evidence in the case sub judice might

qualify as direct evidence, Rachid does not argue that there was direct evidence of

discrimination.

7 discriminatory motive was the determinative basis for his termination, under the mixedmotives framework the plaintiff can recover by demonstrating that the protected

characteristic (under the ADEA, age) was a motivating factor in the employment decision.

See id .; Mooney , 54 F.3d at 1216-17.

The parties contest whether Desert Palace, Inc. v. Costa

, 123 S. Ct. 2148 (2003), alters

the analysis by allowing a plaintiff to proceed wi t h a mixed-motives approach in a case

where there is not direct evidence 6 of discrimination.

(2) Mixed-motives analysis is available for ADEA claims.

Rachid argues that this case should be analyzed under the mixed-motives analysis

described in Price Waterhouse and, more recently, in Desert Palace, Inc. v. Costa , 123 S.

Ct. 2148 (2003). JIB maintains that the mixed-motives analysis is relevant only where there

is direct evidence of discrimination, and that because there is no direct evidence here, the

McDonnell Douglas

approach governs.

In Desert Place

, the Supreme Court unanimously held that in the context of Title VII,

as a mended by Congress in 1991, “direct evidence of discrimination is not required in

mixed-motive[s] cases

. . . .” 123 S. Ct. at 2155. S ee also Stegall v. Citadel Broad. Co.

, 350

F.3d 1061, 1066-67 (9th Cir. 2003) (applying Desert Palace at the summary judgment stage

to Title VII and state law discrimination claims, and analyzing the plaintiff’s case under7

Only one prior opinion of this Court, which was unpublished, cites to Desert

Palace , and it does not address whether Desert Palace applies to ADEA claims. See

Read v. BT Alex Brown Inc. , No. 02-10191, 2003 WL 21754966, at *2 (5th Cir. July 30,

2003) (unpublished opinion).

8 both the mixed-motives and the pretext theories). As the district court in L ouis observed,

“[b]ecause the direct evidence requirement has been removed from mixed-motive[s] cases,

it is now harder to draw a distinction between McDonnell Douglas and mixed-motive[s]

cases.” L ouis

, 2003 WL 23281538, at *3. This Court has not yet addressed whether D esert

Palace alters the Price Waterhouse and McDonnell Douglas analyses. 7

We must first decide whether the mixed -motives analysis discussed in D esert Palace

in the context o f a Title VII claim is equally applicable in the ADEA context. “[T]he

starting point for our analysis is the statutory text.” D esert Palace

, 123 S. Ct. at 2153. The

ADEA states that “[i]t shall be unlawful for an employer

. . . to discharge any individual

or otherwise discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such indi vidual’s age.” 29 U.S.C. §

623(a) (emphasis added). Title VII similarly prohibits discrimination “because of” a

protected characteristic . 42 U.S.C. § 2000e-2(a) (West 2004); s ee also Smith v. City of

Jackson, Miss.

, 351 F.3d 183, 188-190 (5th Cir. 2003) (discussing the similarities and

differences of Title VII and the ADEA and noting that the “core sections [of the two

statutes]

. . . overlap[ ] almost identically . . . . This is no coincidence; the prohibitions of

the ADEA were derived in haec verba from Title VII.”) (citations and quotations omitted).

In Desert Palace the Supreme Court applied the mixed-motives analysis because, “[o]n its8

In response to Price Waterhouse v. Hopkins , 490 U.S. 228, 241 (1989), Title VII

was amended in 1991 specifically “to eliminate the employer’s ability to escape liability

in Title VII mixed-motive[s] cases by proving that it would have made the same

decision in the absence of the discriminatory motivation.” Hill v. Lockheed Martin

Logistics Mgmt., Inc. , 354 F.3d 277, 284 (4th Cir. 2004); see 42 U.S.C. § 2000e-2(m)

(providing that “an unlawful employment practice is established when the complaining

party demonstrates that [a prohibited characteristic] was a motivating factor for any

employment practice, even though other factors also motivated the practice”). The

ADEA was not similarly amended, and Title VII’s amendment was noted by the

Supreme Court in Desert Palace

. See Desert Palace , 123 S. Ct. at 2151. One circuit court

assumed in dictum, without so holding, that this difference in statutory text is

significant. See Hill v. Lockheed Martin Logistics Mgmt., Inc. , 354 F.3d 277, 284-85 n.2

(4th Cir. 2004) (assuming in dictum, without deciding, that Desert Palace does not

apply to ADEA claims, given the absence from that statute of an explicit mixed-motives

provision like the one found in Title VII). Unlike Title VII which explicitly permits

mixed-motives cases, the ADEA neither countenances nor prohibits the mixed-motives

analysis. Because we base our holding on the absence of a heightened direct evidence

requirement in the ADEA, we do not find the statute’s silence on the mixed-motives

analysis to be dispositive.

9 See

, e.g ., 8 U.S.C. § 1158(a)(2)(B) (stating that an asylum application may not be

filed unless an alien “demonstrates by clear and convincing evidence” that the

application was filed within one year of the alien’s arrival in the United States); 42

U.S.C. § 5851(b)(3)(D) (providing that “[r]elief may not be ordered” against an

employer in retaliation cases involving whistleblowers under the Atomic Energy Act

where the employer is able to “demonstrat[e] by clear and convincing evidence that it

would have taken the same unfavorable personnel action in the absence of such

behavior”).

9 face, [Title VII] does no t mention, much less require, that a plaintiff make a heightened

showing through direct evidence.” Desert Palace , 123 S. Ct. at 2153.

Given that the language of the relevant provision of the ADEA is similarly silent as

to the heigh tened direct evidence standard, 8 and the presence of heightened pleading

requirements in other stat utes, 9 we hold that direct evidence of discrimination is not10

This Court’s holding in Mooney , 54 F.3d at 1216-17, that direct evidence is

required for a mixed-motives analysis has been overruled by the Supreme Court’s

interpretation of pleading requirements in Desert Palace

.

10 necessary to receive a mixed-motives analysis for an ADE A claim. 1 0 A ccord

Estades-Negroni v. Assoc. Corp. of N. Am.

, 345 F.3d 25, 31 (1st Cir. 2003) (holding that

after Desert Palace the mixed-motives analysis applies in ADEA cases even without direct

evidence of discrimination); Strauch v. Am. College of Surgeons

, 301 F. Supp. 2d 839, 844

(N.D. Ill. 2004) (“Given the similarities in text and purpose between Title VII and ADEA,

as well as the consiste nt trend of transferring the various proof methods and their

accompanying rules from one stat ute to the other, this Court considers it likely that

whatever doctrinal changes emerge as a result of Desert Palac e in the Title VII context will

be found equally applicable in the ADEA arena.”); Thompson v. Proviso Township High

Sch. Dist. 209

, No. 01-C-5743, 2003 WL 21638808, at *8 (N.D. Ill. July 10, 2003).

This Court’s recent holding in Smith v. City of Jackson, Miss.

, 351 F.3d 183 (5th Cir.

2 003), cert. granted

, 72 U.S.L.W. 3539 (U.S. Mar. 29, 2004) (No. 03-1160), i s not to the

contrary. In S mith this Court held that “the ADEA was no t intended to remedy

age-disparate effects that arise from the application of employment plans or practices that

are not based on age.” 351 F.3d at 187. We based our holding that disparate impact claims

are not cognizable under the ADEA on “the AD EA’s express exception permitting

employer conduct based on ‘reasonable factors other than age’—an exception absent from

Title VII

. . . .” I d

. at 187-88 (quoting 29 U.S.C. § 623(f)(1)). Section 623(f)(1) provides that11 We are focused here on the statutory text concerning “differentiation . . . based

on reasonable factors other than age.” See 29 U.S.C. § 623(f)(1). This analysis, of

course, does not affect the interpretation of § 623(f)(1)’s previous phrase which provides

that an employment action based on age is not unlawful “where age is a bona fide

occupational qualification reasonably necessary to the normal operation of the

particular business.” See id

.

11 it is not unlawful to make employment decisions “based on reasonable factors other than

age

. . . .” 29 U.S.C. § 623(f)(1) (emphasis added). Unlike a disparate impact claim, which

may stem from neutral employment practices, Rachid’s claim contains an allegation that

the employment action was based—at least in part —on unlawful animus. Because the

discrimination in Rachid’s case allegedly occurred because of age, § 623(f)(1)’s safe-harbor

for decisions based on factors “other than age” is inapposite. 11

Our holding today that the mixed-motives analysisused in Title VII cases postDesert Palace is equally applicable in ADEA represents a m e rging of the McDonnell

Douglas and Price Waterho u se approaches. Under this integrated approach, called, for

simplicity, the modified McDonnell Douglas approach: the plaintiff must still demonstrate

a prima facie case of discrimination; the defendant then must articulate a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets

its burden of production , “the plaintiff must then offer sufficient evidence to create a

genuine is

sue of material fact ‘either (1) that the defendant’s reason is not true, but is

instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason,

while true, is only one of the reasons for its conduct, and another ‘motivating factor’ is the

plaintiff’s protected characteristic (mixed-motive[s] alternative).’” R ishel v. Nationwide12

Mut. Ins. Co.

, 297 F. Supp. 2d 854, 865 (M.D.N .C. 2003) (noting that courts need “only

modify the final stage of the McDonnell Douglas scheme to accommodate Desert Palace

,

by framing the final stage ‘in terms of whether the plaintiff can meet his or her ‘ultimate

burden’ to prove intentional discrimination, rather than in terms of whether the plaintiff

can prove ‘pretext’”) (citing and quoting Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc.

,

285 F. Supp. 2d 1180, 1197-98 (N.D. Iowa 2003)). If a plaintiff demonstrates that age was

a motivating factor in the employment decision, it then falls to the defendant to prove “that

the same adverse employme nt decision would have been made regardless of

discriminatory animus. If the employer fails to carry this burden, plaintiff prevails.”

Mooney , 54 F.3d at 1217. Accord Louis , 2003 WL 23281538, at *2-3 (noting that to defeat

a mixed-motives cl aim once a plaintiff shows that the prohibited characteristic was a

motivating factor, the defendant must demonstrate that “it would have taken the same

action in the absence of the impermissible motivating factor.”).

B. Rachid’s claim.

We now turn to whether Rachid’s claim survives s ummary judgment under the

modified McDonnell Douglas approach detailed above.

(1) Rachid established a prima facie case.

JIB essentially concedes that Rachid satisfies the first three factors necessary for a

prima facie case. Rachid argues that he demonstrated the fourth factor by showing that:

(1) his replacement was five years younger; (2) he long suspected that Powers was going

to fire him because of his age and he voiced these concerns to human resources; and (3)12 Compare Bienkowski v. American Airlines, Inc. , 851 F.2d 1503, 1506 (5th Cir.

1988) (noting, pre- O’Connor , that a five year age differential “does not legally preclude

the possibility of discrimination against [the plaintiff]” and that “it is a close question

whether he established a prima facie case”), with Grosjean v. First Energy Corp ., 349

F.3d 332, 336-40 (6th Cir. 2003) (holding that “in the absence of direct evidence that the

employer considered age to be significant, an age difference of six years or less between

an employee and a replacement is not significant”).

13 Powers made ageist comments to and about Rachid.

The parties spend considerable effort contesting whether an age difference of five

years is “significant” or “substantial” under O’Connor v. Consolidated Coin

, 517 U.S. 308,

313 (1996) (holding that merely being replaced by someone outside the protected class is

not sufficient to establish a prima facie case; rather, an employee demonstrates an inference

of age d iscrimination when he is replaced by an employee “significantly” younger). 1 2

While this is a close question, we need not reach it because Rachid’s other evidence easily

establishes a prima facie case.

Evidence in the record demonstrates that Powers repeatedly made ageist comments

to and about Rachid. In his deposition Rachid notes that, prior to his termination, he

reported to human resources that Powers was hara ssing him about his age. Haidar

testified that Powers suggested that Rachid’s absence from a meeting was due to the fact

that “he’s probably in bed or he’s sleeping by [now] because of his age . . . .” Such

evidence of discrimi nation easily establishes a prime facie case that Rachid was

“discharged because of his age.” See Palasota , 342 F.3d at 576 (quotations omitted).

(2) Material issues of fact are disputed, making summary judgment inappropriate.

JIB argues that it had a non-discriminatory reason for firing Rachid—i.e., Rachid’s14

failure to follow company policy regarding altering s ubordinates’ time-sheets without

documentation. JIB notes that “since 1999, the Company has terminated at least 11 other

employees [including some of whom were substantially younger than Rachid] in the same

region for violating the Company’s time[-]sheet policy.”

While violating a n on-discriminatory company policy is adequate grounds for

termination, two fact issues remain: (1) Rachid claims that Powers’s email did not reflect

JIB’s company policy; and (2) he claims that, based on his understanding of the policy, he

did not violate the policy. Rachid also argues that JIB’s assertion that other employees

were terminated for

violating the policy is inapposite here because none of those

employees were fired by Powers, nor were any of those employees fired for violating the

specific time-card policy stated in Powers’s email.

(a) Company policy concerning time-card alterations is unclear.

Rachid claims that “Company Policy said nothing about the Manager signing a P108

Discipline Slip.” Though JIB argues that a company policy was violated, it cites to nothing

other than Powers’s email. Rachid notes that the Employee Handbook only requires that

if an employee

“do[esn’t] agree with [his] hours on the [report at the end of each pay

period, he must let his] Manager know immediately.”

JIB’s argument that other employees were fired for violating a time-card policy does

not resolv e this issue. JIB issued separation notices to employees discharged for

“employees’ hours deletions,” but none of those notices references failure to complete P108

forms. Additionally, all of those notices assume that employee hours were unlawfully13

Powers fired Rachid immediately after Rachid admitted to making some

alterations without completing P108 forms. Powers did not make any investigation to

determine whether those deletions were accurate.

15 deleted. In the instant case, Rachid claims that he only made lawful deletions (i.e.,

deletions when employees failed to punch out for bre aks). The basis of Rachid’s

termination by Powers seems to have had less to do with whether the deletion s were

accurate than with whether Rachid had complet ed P108 forms when he made the

deletions. 13

The fact that some employees were terminated for “employees’ hours

deletions” does sugges t that JIB had a policy on this matter, but it does not address the

contours of that policy.

Furthermore, the other employees were terminated by other managers, mitigating

the relevance of their terminations to t he question of whether Powers unlawfully

discriminated against

Rachid. “This court and others have held that testimony from

former employees who had different supervisors t h an the plaintiff, who worked in

different parts of the employer’s company, or whose terminations were removed in time

from the plaintiff’s termination cannot be probative of whether age was a determinative

factor in the plaintiff’s discharge.” Wyvill v. United Co. Life Ins. Co. , 212 F.3d 296, 302 (5th

Cir. 2000). JIB does not appear to have produced a ny evidence that other managers were

fired by Powers (or by anyone else) merely for failing to complete P108 forms in situations

where: ( 1) those managers altered employee hours; and (2) the employees did not—as

required by the Employee Handbook—contest the alterations. Therefore, a genuine issue

of material fact exists whether Powers’s email describes JIB’s company policy.16

(b) It is uncertain whether Rachid violated the policy stated in Powers’s email.

Powers’s email states:

If an employee fails to punch out at the clock they [sic] are to be written up on a

P108 [disciplinary form]. NO MANAGER IS TO GO BACK AND DO A PUNCH

CHANGE WITHOUT A SIGNED P108 FOR PROOF! The P108 needs to be kept in

the emplo yee file. If the employee contests their [sic] hours and there are punch

changes without a P108 for back-up documentation, the manager is putting their

[sic] job at risk.

Rachid argues that his and Haidar’s understanding of Po wers’s email “was that, if the

‘employee contests their [sic] hours’ after the Manager made the change, the Manager was

to write a P108 form.” Haidar testified that he did not think a P108 form was necessary

unless an employee disputed changes made to the time-card. According to Rachid’s and

Haidar’s interpretation, a P108 was necessary only if, after an employee was notified of an

alteration to his hours, he were still to contest it. Therefore, according to Rachid, he never

violated the directive as stated in Powers’s email. Of course, whether Rachid violated JIB’s

policy is a question of fact.

Even if JIB did have a policy (which seems likely), and even if that policy required

P108 forms to be filled out in certain circumstances (which is uncertain), a factual question

remains as to whether Rachid violated that policy by only completing P108s when an

employee contested the alteration.

(c) Summary judgment was improper.

Because issues of material fact are disputed, summary judgment in favor of JIB was

unwarranted. This Court’s decision in B ienkowski v. American Airlines informs the17

analysis of whether summary judgment was appropriate at this stage. S ee Bienkowski v.

American Airlines, Inc.

, 851 F.2d 1503, 1506-07 (5th Cir. 1988). In B ienkowski

, this Court

faced a similar situation: the parties contested the quality of plaintiff’s performance, and

the plaintiff alleged that his supervisors made ageist comments. Id . Bienkowski alleged

that his managers commented that he look “‘sharp’ if he was [sic] going to look for another

job . . . [and] commented on his inability or willingness to ‘adapt’ to new systems in the

department.” I d. at 1507 n.4. This Court reversed the district court’s grant of summary

judgment in favor of the defendant, noting:

Unlike the district court, we are unwilling to assume that indirect comments about

his age and adaptability are not possibly probative of an unlawful discriminatory

intent, given the parties’ sharp disagreements over the operative facts of [plaintiff]’s

performance. Moreover, live testimony will assist the necessary credibility choices

in this case more effectively than printed affidavits.

Id

. at 1507. Comments to look “sharp” and comments concerning an employee’s

willingness to “adapt” to new systems are rather nebulous, but they allowed Bienkowski

to avoid summary judgment. The alleged ageist comments in the instant case are

substantially more egregious. Similarly, in Palasota , this Court, in reversing a district

court’s grant

of a judgment as a matter of law, explained, “[a]ge-related remarks ‘are

appropriately taken into acc ount when analyzing the evidence . . . ,’ even where the

comment is not in the direct context of the termination and even if uttered by one other

than the formal decision maker, provided that the individual is in a position to influence

the decision.” 342 F.3d at 578 (quoting R ussell v. McKinney Hosp. Venture

, 235 F.3d 219,

229 (5th Cir. 2000)).18

In the case sub judice

, Rachid presents far more evidence of age discrimination than

was presented in Bienkowski

. Rachid testified that Powers made numerous ageist

comments—including one situation where Powers allegedly said: “[A]nd don’t forget it,

[Rachid], you’re too old , too”—and Haidar supported Rachid’s assertions that Powers

continually made such comments. Rachid even spoke with human resources prior to his

termination to express his fear that Powers would try to fire him because of h is age.

Despite JIB’s focus on Teal-Guess’s investigation and company policy, it was Powers who

terminated Rachid, and it was Powers who repeatedly made ageist comments to and about

Rachid. Such comments preclude summary judgment because a rational finder of fact

could conclude that age played a role in Powers’s decision to terminate Rachid.

IV. CONCLUSION

For the forgoing reasons we hold that: Desert Palace modifies the M cDonnell

Douglas analysis in ADEA cases such that a plaintiff can proc e ed on a mixed-motives

theory even without direct evidence of discrimination; Rachid established a prima facie

case of discrimination; and disp uted issues of material fact remain concerning JIB’s

proffered reason for terminating Rachid and concerning whether age was a factor in that

decision. Therefore, the district court’s summary judgment is REVERSED, and this case

is REMANDED for further proceedings not inconsistent with this opinion.