### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30278 Summary Calendar

TILDEN HOLLIDAY, Plaintiff–Appellant
v. COMMONWEALTH BRANDS, INCORPORATED, Defendant–Appellee

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10-CV-2785

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Plaintiff–Appellant Tilden Holliday appeals the district court’s grant of

s u m m ary j u d gm e nt to D ef e n d ant

– Appellee Commonwealth Brands, Inc. (“CBI”)

o n h is claim under the Age Discrimination in Employment Act (“ADE A” )

. Holliday claims that CB I t e r m i nated his employment because of his age and hired someone younger to replace him. The district court determined that even assuming Holliday had establis h e d a prima facie age discrimination claim, he U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 3, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-30278 Document: 00511944729 Page: 1 Date Filed: 08/03/2012No. 12-30278

h a d not shown that CBI’s purported reason for terminating him—his p o o r performance—was a pretext for unlawful discrimination. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND In August 2001, CBI hired Holliday as a Key Account Manager, a position in CBI’s sales team. Holliday was 48 years old at the time. His direct supervisor at CBI was Regional Manager Loren Trauth. Trauth reported to Bob Miller, a Sales Director, who in turn reported to Gary Ebert, Vice President of Sales. An interoffice memo from Miller to Ebert with a copy to Trauth in June 2003 cited Holliday’s “very slow” progress and proposed reassigning him to be a Territory Manager. The parties dispute whether this reassignment—which became effective June 30, 2003—was a demotion; Holliday maintains that it was not a demotion because his sal a ry w a s n ot reduced, while CBI claims it was a demotion based on his poor performance as a Key Ac c ount Manager. In any event, the parties agree that in April 2004, Holliday was promoted to a District Manager; his direct supervisor remained Trauth. He maintained that position until he was terminated in April 2008. CBI proffers evidence that it claims shows that Holliday had performance issues throughout his time at CBI. In J a n u ary 2003, Miller sent Holliday a letter criticizing him for having improperly reported his activities by indicating

on a log that a client had canceled an appointment when in fact no appointment had ever been set. The letter stated that if Holliday mislead Miller or Trauth in that way again it would “lead to further disciplinary action up to and including termination.” In May 2005, Traut h s ent a memo to Holliday, with a copy to Miller, setting forth in writing guidelines for when and how Holliday was to have contact with the Territory Managers he supervised. This memo was prompted by complaints by Terr i t o ry M anagers that Holliday had been contacting them for non-work-related reasons during business hours, at home, and on weekends. In February 2006, T r a uth sent a memo to Hoke Whitford, who was now

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responsible for supervising Trauth and Holliday, explaining how Holliday had lied to her and Miller by claiming to have contacted anothe r C BI District Manager as h e had been instructed, when in fact he had not. The memo also stated that in May, October, and November 2 0 0 5 , Trauth had instructed H o l l iday to demonstrate leadership skills to earn the respect of the Ter r i t o ry Managers he supervised. In March 2006, Trauth sent a m e m o t o Holliday informing him that, as previously discu s s e d v e rbally and in writing, his performance had not been up to CBI’s standards in multiple areas. The memo gave Holliday 30 days to make improvements in those areas, and stated that “failure to improve your jo b p e r formance will result in further disciplinary action, up to and including termination of employment.” CBI p e r f

o rmed annual performance appraisals of its District Managers, which were completed by the supervising Regional Manager, subject to the Sales Director’s approval. The form used to evalua t e D i s t r i ct Managers rated a number of categories from one to five, with five as the highest score. Holliday’s June 2006 annual review, completed by Trauth, awards Holliday threes in half t h e c a t egories and twos and ones in all the others. Holliday’s 2007 ann u a l review awarded him threes in one-quarter of the categories, twos in more than half, and ones in the others. According to Holliday, these neg a t iv e reviews and other incidents were part of a plan developed by Trauth to get him fired and have him replaced with

someone younger. This plan, Holliday maintains, is evident from a number of age-related comments Trauth made t o Holliday and others beginning in early 2006. After Holliday had trouble with a computer program, for example, Trauth said to him: “Why can’t you grasp this?”; “You don’t understand”; You just don’t understand this, do you?”; and “Well, maybe you need to retire.” Holliday claims that Trauth referred to him and a Territory Manager as “y o u t w o old men” in late 2006, and described the Territory Manager to Holliday as “too old to grasp

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the CBI hookup and too old to grasp to do a route list on his own. And it looks like he might be getting Alzheimer’s.” Holliday further alleges that Trauth told him he was “just ge t t i n g t o o old for this job” twice, once after Holliday was unable to move a fully-stocked soda machine and again after he asked Trauth for a water break while “doing a reset,” which he claimed was a “very strenuous” process. Finally, Trauth told Ray Ozmont, a Territory Manager supervised by Holliday, on more than one occasion that Holliday was an old man and too old for his job, and Trauth criticized Holliday’s preparation of a report revi e w i n g Ozmont’s performance, saying that Holliday was “not grasping this. You’re getting old.” In December 2007, Ozmont heard from a c o w o r k er that Trauth had
prom i sed Holliday’s job to Mina Hernandez. Hernandez was a Territory Manager supervised by Holliday, and Holliday alleges that Trauth and Hernandez were very close. Also in December 2007, Hernandez submitted a three-page, type-written complaint to Whitworth, detailing a history of trouble getting along with Holliday, and claiming that Holliday had spread rumors that she and Trauth were romantically involved. Hernandez’s complaint prompted

a January 2008 letter from Whitworth to H o l l i day that listed five “items of concern”: (1) Holliday’s poor working relationship w ith Trauth; (2) Holliday’s
poor communication with the Territory Managers he supervised; (3) Holliday’s unfair and inconsistent trea t m e n t o f employees; (4) Holliday’s discussion of personnel information about past employees; and (5) allegations that Holliday had made “personal sexual comments” about CBI e m p l o y ees. Whitworth met with Holliday to deliver the letter, and followed up with an email the next day outlining further issues with Holliday’s job performance. In March 2008, Whitworth received from Trauth another r e p ort that Holliday’s job performance had not improved, that his communication with Trauth and his Territory Managers had not improved, that he was not effe ctively

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training his Territory Managers, and that he had d i s c u s sed confidential personnel information with one of his Territory Managers. In the middle of April 2008, Holliday received a negative interim performa n c e r e view from Trauth. On April 21, 2008, Whitworth wrote a letter to H olliday detailing Holliday’s lack of improvement on any of the “items of concern” outlined in Wh i t w orth’s January letter to Holliday. This April letter concluded: “It is my de t ermination that [Human Resources Manager] Bonita McIntyre and myself terminate Mr. Ho l l i d ay’s employment on 4-28-08.” Whitworth, McIntyre, and Russ Mancuso—the new Vice President of Sales—met with Holliday on April 28 to inform him that he was being terminated based on his failure to improve his job performance. CBI replaced Holliday with Ozment, who was 42 years old at the time he was promoted. After receiving a right-to-sue letter from the Equal Empl o yment Opportunity Commission, Holliday brought suit against CBI in the United States District Court for the Eastern District of Louisiana, alleging claims under the ADEA and Louisiana state law. The district court granted CBI’s motion for
summary judgment on all of Holliday’s clai m s . Holliday timely appealed, 1 raising only his claim under the ADEA.

II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. We revi ew a grant of
summary judgment d e n o v o , applying the same legal standard as the district court. De d i o l v . Best Chevrolet, Inc. , 655 F.3d 435, 439 (5th Cir. 2011). “A

We dis agree wi th CBI that Ho llid ay’s app eal sho uld be sum mar ily rejec ted due to his 1 tec hnica lly a pp ealing fr om the dis tri ct cour t’s ord er denyi ng Ho llid ay’s mo tio n to alte r or ame nd the sum mar y judgm ent. Altho ugh Ho ll i d a y d i d not com ply wi th Fede ral Rule of App ellat e Pr oce dur e 3 (c), t his c ourtis le nientinin ter pr eti ng noti ces of app eal, mai ntain ing “a pol icy of liber al cons tru cti on . . . wh ere the inte nt to app eal an unm enti oned or mi slabeled rulin g is appar ent and ther e is no pr ejudi ce to the advers e par ty. ” In re Blast Energy Serv s. , Inc. , 593 F.3d 418, 424 n.3 (5t h Cir. 2010) (int erna l quot atio n mar ks om itt ed)

. It is app aren t fr om the brie fing that Ho llid ay inte nded to app eal the enti re cas e a n d t h at CBI has not suf fer ed pr ejudi ce. 5 Case: 12-30278 Document: 00511944729 Page: 5 Date Filed: 08/03/2012No. 12-30278

summary judgment motion is properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the r e c o r d indicates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of l a w . ” Barker v. Halliburton Co. , 645 F.3d 297, 299 (5th Cir. 2011). III. DISCUSSION Under the ADEA, “[i]t shall be unlawful for an employer to

. . . discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail, a plaintiff may use direct or circumstantial evidence to prove that “age

was the ‘but-for’ cause of the employer’s” discharge decision. Gross v. FBL Financial Servs., Inc. , 557 U.S. 167, 177 (2009). Where, as here, a p l a i n tiff
pro vides no direct evidence of age discrimination, we apply the familiar McDonnell Douglas burden-shiftin g f ramework. See Moss v. BMC Software, Inc. , 610 F.3d 917, 922 (5th Cir. 2010) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)). Under that framework, a plaintiff must first establish a prima facie case that: “ ( 1 ) h e was discharged; (2) he was qualified for the position; (3) he was within the protected class at the t i m e o f 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.” Jackson v. Cal-Western Packaging Corp. , 602 F. 3 d 374, 378 (5th Cir. 2010). The only element of Holliday’s prima facie case disputed by CBI is that Holliday was qualified for the position. Because “a plaintiff challenging h i s termination or demotion can ordinarily establish a prima facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job a t t h e time of the adverse action,” Bienkowski v. American Airlines, Inc. , 851 F.2d 1503, 1506 (5th Cir. 1988), and Holliday “had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit

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for the position for which he was h i r e d , ” i d

. at 1506 n.3, we determine that Holliday met his prima facie burden on this element. Once a plaintiff establishes a prim a f a c i e c ase, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for terminating the plaintiff. See Moss , 610 F.3d at 922. Holliday does not dispute that CBI has satisfied its burden; CBI maintains that it terminated Holliday because of “his persistent unsatisfactory performance.” Once an employer articulates a legitimate, non-discriminatory reason, the burden s hifts back to the plaintiff to “rebut the employer’s purported explanation, to show that the reason given is merely pretextual.” Id. “A plaintiff
may show pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Id. (internal quotation marks omitted). “But a reason can n o t be proved to be a ‘pretext for discrimination ’ unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v . Hicks , 509 U.S. 502, 515 (1993). Holliday’s only evidence that age discr i m i n a t i on was the real reason for his termination are Trauth’s comments. Holliday concedes that Trauth did not h av e a c t ual authority over CBI’s decision to terminate him, but relies on Palasota v. Haggar Clothing Co. , 342 F.3d 569, 578 ( 5th Cir. 2003), in arguing that age-related remarks by someone other than the formal decision-maker are probative of the employer’s discriminatory intent if that person is in a position to i n f l u e n c e t h e decision. Assuming that this “cat’s paw” theory of liability is available under the ADEA, it is not appropriate here. Holliday has not offered 2

Alt hough wehaver eco gnizedt his “ cat ’s paw” theo ry of liabil ity unde r the ADEA, it 2 is enti rely uncle ar wh ethe r our dec isi ons rem ain good law in the wa ke of G ros s v. FBL Fina nci al Serv ic es, Inc. , 557 U. S. 167( 2009) , and Staub v. ProctorH osp ital , 131 S. Ct

. 1186 (201 1). Staub rec ognized “ca t’s paw” liabil ity unde r the Unif orm ed Services Emp loym ent and Reem plo ymen t Rights Act (“ USERRA” ). 131 S. Ct. at 1194. In so hold ing, the Court cons tru ed 7 Case: 12-30278 Document: 00511944729 Page: 7 Date Filed: 08/03/2012No. 12-30278

any evidence showing that Trauth had “influence or leverage” over Whitworth, McIntire, or Mancuso—the CBI employees who made the decision to terminate Holliday. See Russe l l v . McKinney Hosp. Venture , 235 F.3d 219, 226 (5th Cir. 2000). The record is unequivocal that Whitworth independently investigated any complaints about Holliday’s performance and communicated directly with Holliday about improving his per f o r m a n ce. Whitworth only determined that Holliday’s employment should be terminated after Holliday failed to improve his performance in response to a letter from Whitworth. As Holliday has no evidence that Whitworth possessed any discriminatory motive, nor any evidence that Whitworth was influenced or leveraged by Trauth, he has failed to sustain 3 his burden of showing that CBI’s purported reason for terminating him was pretextual. Thus, the district cour t appropriately granted CBI’s motion for summary judgment. IV. CONCLUSION For the foregoing reasons, the district court’s summary judgment in favor of CBI is affirmed. AFFIRMED.

the phr ase “m otivating fac tor in the em plo yer’s act ion, ” wh ich is in the text s of USERRA and Title VII. Id. at 1 1 9 0

– 9 1

. T h a t phr ase is not, how ever, in the text of the ADEA, and sp ecif ical ly b e c a u s e the ADEA doe s not inclu de that phr ase , the Court in Gross held that plai n t i f fs coul d not pr oce ed unde r a “m ixed mo tive” theo ry in ADEA cas es . See 557 U. S. at 174–78. Becaus e the “m otivating fac tor” phr ase is not in the ADEA, and beca use the Court cons tru ed that phr ase in rec ognizing “ca t’s paw” liabil ity unde r USERRA, and fina lly, beca use the Court has foc use d clos ely on the text of the antid isc rm inati on s tat utes in autho rizing theo ries of liabil ity, it coul d very we ll be that our pr ior rec ogniti on of “ca t’s paw” liabil ity unde r the ADEA wa s inco rre ct. Also unavaili ng is Ho llid ay’s attem ptto showpret ext by arguing that CBI coul d not 3 have act ually ter mi nate d him for p o or per for man ce beca use sal es had incr eas ed dur ing his tenu re as Di st ric t Man ager. The rec ord i s c l e ar that CBI’s com plai nts about Ho llid ay’s per for man ce we re related to his unpr ofe ss ional behavior and poo r man agem ent, not his lack of sal es ac ume n. 8 Case: 12-30278 Document: 00511944729 Page: 8 Date Filed: 08/03/2012