IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20082

ANGELA VANN, 

 Plaintiff – Appellant,

v.

MATTRESS FIRM, INCORPORATED, 

 Defendant – Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:12-CV-3566

Before ELROD and HAYNES, Circuit Judges.*

PER CURIAM:**

Angela Vann appeals the district court’s grant of summary judgment on

her age, race, and gender discrimination claims under Title VII of the Civil 

Rights Act of 1991, Chapter 21 of the Texas Labor Code (formerly known as 

the Texas Commission on Human Rights Act) and the Age Discrimination in 

Employment Act. Because Vann has failed to raise a genuine issue of material 

 

* This matter is being decided by a quorum. 28 U.S.C. 46(d). ** 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.

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2015

Lyle W. Cayce

Clerk

 Case: 15-20082 Document: 00513210542 Page: 1 Date Filed: 09/28/2015
No. 15-20082

2

fact showing that the reasons Mattress Firm offers to explain her transfers and 

subsequent termination are mere pretext, we AFFIRM.

I.

Angela Vann joined Mattress Firm as a manager-on-duty, which is an 

entry level sales position, in July 2005. She was 47 years old when she was 

hired. Over the next eighteen months, she was promoted to store manager at 

her small store, then transferred to become store manager at a large, high 

volume store located in Hedwig Village. At Hedwig Village, she continued to 

record strong sales numbers but, according to Mattress Firm, her co-workers 

had difficulty working with her. They claimed she would often assist customers 

out of turn and take business from other associates in the store. Vann’s district 

manager demoted her to assistant store manager in September 2008 and 

moved her two months later, once again as store manager, to a new store with 

lower sales volume. Once again she had consistently strong personal sales but 

the overall store numbers of her location declined, and her associates 

complained of problems with her teamwork. She was transferred, promoted, 

and demoted a number of times until, at her request, she returned to the 

Hedwig Village store as store manager in March 2010.

Although Vann’s personal sales numbers remained exceptional, her new 

district manager received more reports of problems with Vann’s management

and teamwork. Specifically, the reports alleged that Vann did not participate 

in the training of new associates, did not assist in maintaining the appearance 

of the store, and repeatedly took customers out of turn when they entered the 

store instead of following Mattress Firm’s rules regarding the division of 

customers among employees. In October 2010, the district manager demoted 

Vann to assistant store manager. When complaints continued, the district 

manager moved Vann to the Fry Road location as assistant store manager. 

Vann was replaced by a white, twenty-four year old woman at the Hedwig 

 Case: 15-20082 Document: 00513210542 Page: 2 Date Filed: 09/28/2015
No. 15-20082

3

Village location. Mattress Firm asserts that the Fry Road location is 

comparable to the Hedwig Village location (it is classified as a large store with 

a clearance center) but the store was not performing as well as the Hedwig 

location at the time of Vann’s transfer, and her sales volume fell 18% at the 

new location. 

In November 2011, a new district manager took over Vann’s store. After 

warning Vann and the store manager at Fry Road that they would be 

transferred if their sales numbers did not improve, he moved both to smaller 

stores. Vann was relocated to a medium store in Dairy Ashford as store 

manager. Mattress Firm asserts that the Dairy Ashford store was 

outperforming the Fry Road store at the time of the transfer, however, Vann’s

sales at Dairy Ashford were 40% lower than at Fry Road and 50% lower than 

they had been at Hedwig Village. Vann and her manager were replaced at Fry 

Road with two men (one white and one Hispanic), both under 40 years in age.

On December 12, 2011, Vann was terminated pursuant to a customer 

complaint about a transaction that had taken place on September 4, 2011, at 

the Fry Road store. The customer complained that Vann altered her charge 

after she had left the store to add an additional $79 delivery fee. The customer 

discovered the fee when she went to a different location to attempt to pay her 

remaining balance in early December 2011. Vann does not dispute that she 

added the fee but asserts that the customer had verbally agreed to the fee and 

that Vann had mistakenly left it off the customer’s bill. She defended her 

addition of the charge as a correction rather than a surprise fee. When the 

district manager learned of the incident, he spoke with Vann, who admitted to 

altering the charge. He then fired Vann, without speaking to the other 

associates who Vann claimed would corroborate her assertions that the 

customer had verbally agreed to the delivery charge. Vann was replaced at the 

Dairy Ashford store by a white woman under the age of forty.

 Case: 15-20082 Document: 00513210542 Page: 3 Date Filed: 09/28/2015
No. 15-20082

4

Vann filed a complaint with the Equal Employment Opportunity 

Commission shortly after her termination. When the EEOC declined to pursue 

her case, she filed this lawsuit against Mattress Firm.1 The district court 

granted summary judgment in favor of Mattress Firm. Vann v. Mattress Firm, 

Inc., No. 4:21-cv-3566, 2014 WL 4677459 (S.D. Tx. Sept. 18, 2014). Vann 

appeals.

II.

We review a district court’s grant of summary judgment de novo. Jones 

v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991–92 (5th Cir. 2005). Summary 

judgment is proper when there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. 

P. 56(a). This court must take all the facts and evidence in the light most 

favorable to the non-moving party. Jackson v. Watkins, 619 F.3d 463 (5th Cir. 

2010). A panel may “affirm summary judgment on any ground supported by 

the record, even if it is different from that relied on by the district court.” Moss 

v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (quoting Hortzclaw v. 

DSC Comm’n Corp., 255 F.3d 254, 258 (5th Cir. 2001)).

A.

Vann brings age, sex, and race based discrimination claims against 

Mattress Firm pursuant to three statutes: Title VII of the Civil Rights Act of 

1991, 42 U.S.C. § 2000e et seq., the federal Age Discrimination in Employment 

Act, 29 U.S.C. § 623 et seq., and Chapter 21 of the Texas Labor Code, Tex. Lab. 

Code Ann. § 21. These statutes make it illegal to discriminate against an 

employee or potential employee on the basis of race or sex, Tex. Code Ann. § 

 

1 Vann initially also brought claims under the Fair Labor Standards Act as well as 

the ADEA, Title VII and Chapter 21 of the Texas Labor Code. She waived her FLSA claims 

prior to the district court’s summary judgment ruling and does not attempt to revive them 

on appeal.

 Case: 15-20082 Document: 00513210542 Page: 4 Date Filed: 09/28/2015
No. 15-20082

5

21.051, 42 U.S.C. § 2000e, or age, Tex. Code Ann. § 21.051, 29 U.S.C. § 623 

(a)(1). Vann’s race and sex based claims are adjudicated under the same 

standard.2

A plaintiff may establish discrimination directly or indirectly. Where, as 

here, the plaintiff brings only circumstantial evidence of discrimination, we 

rely on the three step process articulated in McDonnell Douglas Corp. v. Green.

411 U.S. 792 (1973). First, the plaintiff must make a prima facie case “showing: 

‘(1) the plaintiff is a member of a protected group; (2) the plaintiff was qualified 

for the job that was held; (3) the plaintiff was discharged; and (4) after the 

employer discharged the plaintiff, the employer filled the position with a 

person who is not a member of a protected group.’” Black v. Pan Am. Labs., 

L.L.C., 646 F.3d 254, 259 (5th Cir. 2011) (quoting Valdez v. San Antonio 

Chamber of Commerce, 974 F.2d 592, 596 (5th Cir. 1992)). Once the plaintiff 

has established her prima facie case, the burden shifts to the employer to show 

“a legitimate, nonretaliatory reason for the adverse employment action.” Black, 

646 F.3d at 259. “The employer’s burden is one of production, not persuasion, 

and does not involve a credibility assessment.” Id.

“The burden then shifts back to the plaintiff to show 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).” Id. (quoting Rachid v. 

 

2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing the 

requirements to bring race based challenges under Title VII); Goudeau v. Nat’l Oilwell Varco, 

L.P., 793 F.3d 470, 474 (5th Cir. 2015) (applying the McDonnell Douglas framework to

TCHRA claims); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 

2012) (Chapter 21 is “effectively identical to Title VII, its federal equivalent .... Because one 

of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the 

Civil Rights Act of 1964, we have consistently held that those analogous federal statutes and 

the cases interpreting them guide our reading of the TCHRA.”).

 Case: 15-20082 Document: 00513210542 Page: 5 Date Filed: 09/28/2015
No. 15-20082

6

Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (alteration in original).3

To satisfy step three under the pretext alternative, the plaintiff bears the 

burden of proof to show that each nondiscriminatory reason proffered by the 

employer is pretextual. Black, 646 F.3d at 259. The burden of proof remains 

with the plaintiff at all times, who must raise a genuine dispute of material 

fact that the nondiscriminatory reason is pretextual. Tex. Dep’t. of Cmty. 

Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bd. of Trustees v. Sweeney, 439 

U.S. 24 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–

43 (2000).

B. 

Vann initially brought claims based on a series of adverse employment 

actions taken against her between September 2008 and her eventual firing in 

December 2011. She included as adverse employment actions each of her 

transfers and demotions resulting in lowering earnings or longer commutes. 

She filed her first complaint with the Equal Employment Opportunity 

Commission on December 20, 2011. Her claims under both state and federal 

law, however, are time barred if she has not filed within 300 days of the adverse 

employment action. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d); Tex. Lab. 

Code § 21.202 (allowing only a 180 day window to file). Vann’s transfer from 

the Hedwig Village store to the Fry Road store in July of 2011 and her transfer 

from Fry Road to the Dairy Ashford store fall within the 300 day window, as 

does her termination. All of her other claims based on earlier transfers are time 

barred.4 She is, however, able to use these transfers “as background evidence 

 

3 Vann has not argued the mixed motives alternative, so we need not address it. 4 Vann argues that the series of transfers she experienced over a number of years 

should qualify under the “continuing violation theory” which “relieves a plaintiff of 

establishing that all of the complained-of conduct occurred within the actionable period if the 

plaintiff can show a series of related acts, one or more of which falls within the limitations 

period.” Huckaby v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (quoting Messer v. Meno, 130 

 Case: 15-20082 Document: 00513210542 Page: 6 Date Filed: 09/28/2015
No. 15-20082

7

in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 

101, 113 (2002).

C.

The district court determined that Vann established a prima facie case 

on her race and sex based claims. Assuming without deciding that Vann met 

her summary judgment burden on the prima facie case, Mattress Firm has met 

its burden of production by producing evidence that Vann’s coworkers did not 

consider her a good team player at the Hedwig Village and Fry Road locations 

and that she neglected the non-sales duties of her management position. 

Furthermore, Mattress Firm relies on the customer complaint and Vann’s 

subsequent actions to defend Vann’s termination. Vann asserts that these 

reasons are mere pretext, but has not met her burden of proof to do so, even 

when taking her proffered evidence in the light most favorable to her claims.

As evidence of pretext, Vann attempts to offer proof that similarly 

situated Mattress Firm employees who were not members of the relevant 

protected classes were treated favorably in comparison with her. See 

McDonnell Douglas, 411 U.S. at 804 (“[R]espondent must ... be offered a fair 

opportunity to show that petitioner’s stated reason for respondent’s rejection 

was in fact pretext. Especially relevant to such a showing would be evidence 

that white employees involved in acts ... of comparable seriousness ... were 

nevertheless retained.”). While Vann was consistently a top seller at her 

various stores, Mattress Firm has asserted that part of her success resulted 

from poaching the sales of other associates. Vann has not offered any 

comparators with a similar history of poor teamwork and facility management 

 

F.3d 130, 134 (5th Cir. 1997)). The district court determined the continuing violation theory 

is not appropriate where, as here, each act is “the sort of discrete and salient event that 

should put an employee on notice that a cause of action has accrued.” Huckaby, 142 F.3d at 

240. We agree.

 Case: 15-20082 Document: 00513210542 Page: 7 Date Filed: 09/28/2015
No. 15-20082

8

who were preferentially treated. In fact, most Mattress Firm employees were 

subject to frequent transfers—an average employee in Vann’s area is 

transferred seven or eight times in a three year period.

As for her termination, Vann has offered evidence of other employees, 

not members of protected classes, who sold used goods as new, were late or 

absent from work, engaged in unprofessional conduct toward customers or

coworkers, and shared information with competitors. These individuals were 

not terminated. Their activities, however, are insufficiently close to Vann’s to 

create a genuine issue of material fact as to whether Mattress Firm’s 

justifications are pretext. See Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 

895 (5th Cir. 2012) (“the employment actions being compared will be deemed 

to have been taken under nearly identical circumstances when the employees 

being compared held the same job, ... shared the same supervisor ... and have 

essentially comparable violation histories.”).

Vann also offers the example of salespeople reprimanded for poor 

teamwork and other individuals reprimanded for incorrectly under billing 

customers without making any effort to correct the charges. Vann has not 

shown, however, that district managers wanted those individuals to correct the 

under-billed charges without contacting the customers, nor has she shown that 

the reprimanded individuals had an extensive history of teamwork problems. 

Vann’s problems continued over a number of years in a number of locations 

with various groups of coworkers. She has not offered any evidence of a 

similarly situated individual. Nor has she presented any Mattress Firm 

employee who added such a large charge to a customer account without 

speaking with the customer leading to a customer complaint. Finally, she has 

not produced an example of another employee who, as she did, attempted to 

negotiate what the customer felt was an unethical solution to a problem after

that customer made a complaint. Accordingly, the district court determined 

 Case: 15-20082 Document: 00513210542 Page: 8 Date Filed: 09/28/2015
No. 15-20082

9

that she has not presented evidence rebutting “each of the nondiscriminatory 

reasons the employer articulate[d]” and therefore has failed to satisfy the 

McDonnell Douglas test. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 200 

(5th Cir. 2010). We agree.

D.

Vann’s age based claims are assessed under a modified version of the 

McDonnell Douglas framework. The only difference occurs in the final stage of 

the McDonnell Douglas analysis. Goudeau, 793 F.3d at 474. “Under the ADEA, 

the employee must prove by a preponderance of the evidence that the 

legitimate reasons offered by the defendant were not its true reasons, but were 

a pretext for discrimination.” Squyres v. Heico Comp., 782 F.3d 224, 231 (5th 

Cir. 2015). “The ADEA thus requires a showing of ‘but-for’ causation.” 

Goudeau, 793 F.3d at 474. Merely showing that age was a motivating factor in 

the decision to terminate or transfer an employee will not allow a claim to 

succeed. As with her race and sex based claims, the burden of persuasion 

remains with the plaintiff. Squyres, 782 F.3d at 231.

As we did with her race and sex claims, we assume without deciding that 

Vann has established her prima facie case. Mattress Firm has offered her poor 

teamwork and leadership as reasons for her transfers and adds her alteration 

of the customer bill to explain her termination. The comparators offered by 

Vann to show pretext relating to her age based claims are the same as those 

offered for her other claims. The district court found that Vann’s attempt to 

prove Mattress Firm’s explanation of her transfers and termination were 

pretextual did not create a genuine issue of material fact. We agree for the 

same reasons we discussed above.

III.

Because Vann has not created a genuine issue of material fact suggesting 

that Mattress Firm’s proffered reasons for her transfers and termination are 

 Case: 15-20082 Document: 00513210542 Page: 9 Date Filed: 09/28/2015
No. 15-20082

10

pretextual, we AFFIRM the ruling of the district court granting summary 

judgment.

 Case: 15-20082 Document: 00513210542 Page: 10 Date Filed: 09/28/2015