IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40013

BETTY B. FULLER,

Plaintiff-Appellee,

versus

SECRETARY OF DEFENSE LEON E. PANETTA,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Texas

No. 5:06-CV-91

Before SMITH, PRADO, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Betty Fuller was employed by the Department of Defense as a supply clerk

and, at about age 63, was passed over for a promotion to supply technician. She

sued under the Age Discrimination in Employment Act, claiming that she was

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2012

Lyle W. Cayce

Clerk

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 R. 47.5, the court has determined that this opinion should not be published *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.

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denied promotion because of age. The district court found that age was a motivating factor in the decision and awarded damages with interest. The Secretary

of Defense appeals, claiming (1) that the evidence was insufficient to find that

age was a motivating factor; (2) that the court erred by allowing Fuller to prevail

on a mixed-motives theory; and (3) that interest should not have been awarded. 

We agree with the Secretary that there was insufficient evidence to find that age

was a motivating factor, so we reverse without reaching the Secretary’s other

arguments. 

Reon Hall, chief ofthe distribution-support division, interviewed Fuller for

the supply-technician position in 2004 and found her to be unfocused and to have

difficulty relating her experience to the job she was applying for. Midway

through the interview, Fuller even asked what exactly she was applying for.

Instead of Fuller, Hall chose Julie Metcalf, 38, who had been the backup to the

person who had previously held the job and had temporarily held the position

until it could be filled permanently. 

Doug Field, 58, supervised Fuller when she was a supply clerk but did not

have authority over hiring for the supply-technician position. Patsy Smith was

a coworker and friend of Field’s who often socialized with him outside of work.

At some point—it is not certain when—Field remarked to Fuller, after Smith’s

husband died, that Smith was “older” and should “go on home” to be with her

family. The court later found that that remark “reflect[ed] [Field’s] belief that

certain long-term employees who were older needed to ‘go on home.’” That is the

only evidence the court cites to support its finding that age was a motivating

factor in the employment decision. Because that evidence was insufficient for

a finding of liabilitySSeven on a mixed-motives theory—we reverse without

reaching the question whether a mixed-motives theory is ever appropriate in the

wake of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). 

To be probative of discrimination, a remark must be “(1) related [to the

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protected class of persons of which the plaintiff is a member]; (2) proximate in

time to the [employment decision]; (3) made by an individual with authority over

the employment decision at issue; and (4) related to the employment decision at

issue.” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996). If a remark

does not meet all those criteria, it is considered a “stray remark” and cannot be

used to demonstrate discrimination. This remark fails under the third and

fourth prongs. 

Field’s statement was not made by an individual with authority over the

employment decision and was therefore a stray remark. Field was Fuller’s

supervisor, but the parties do not dispute that the employment decision was

entirely up to Hall. The court found the remark was nevertheless probative,

because it was reasonable to infer that a hiring official would have some contact

with an employee’s direct supervisor. Even if, however, Field and Hall had discussed Fuller’s qualifications, mere contact does not mean that the remark

becomes attributed to Hall. Nor does contact with the person who had authority

over the decision give Field authority over it. The remark was plainly not “made

by an individual with authority over the employment decision.” Id. (emphasis

added). 

Furthermore, the remark fails the fourth requirement of Brown, because

the context of the remark had nothing to do with this or any other employment

decision. Field’s statement was related to Field’s opinion about what would be

best for his friend’s family after her husband’s death. Because the observation

was not related to the employment decision, it was a stray remark and cannot

be evidence of discrimination as a matter of law. Id. 

Fuller cites Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133

(2000), for the proposition that a plaintiff may establish liability by showing that

a vacancy occurred for which the plaintiff was qualified, but the plaintiff was

passed over in favor of a younger person, combined with evidence casting doubt

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on the veracity of the employer’s justification for the decision (pretext). That

argument fails, however, because the district court explicitly found that “Fuller

has not shown that the defendant’s reasons were pretextual.” Therefore, the evidence is insufficient to find that Fuller’s age was a motivating factor. 

The judgment is REVERSED and RENDERED in favor of the Secretary.

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