IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60629

MILDRED FITZPATRICK; MARTHA J. FOSTER, 

 Plaintiffs - Appellants

v.

PONTOTOC COUNTY, MISSISSIPPI, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:12-CV-3049

Before KING, SMITH, and ELROD, Circuit Judges.

PER CURIAM:*

Plaintiffs–Appellants Mildred Fitzpatrick and Martha Foster appeal the 

district court’s grant of summary judgment in favor of Defendant–Appellee 

Pontotoc County, Mississippi, on their federal age discrimination claims. For 

the following reasons, we REVERSE and REMAND.

 

* 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

July 16, 2015

Lyle W. Cayce

Clerk

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I.

Gary Moorman was elected Chancery Clerk for Pontotoc County, 

Mississippi, and began his term of office in January 2012. At that time, there 

were five deputy clerks working in the Circuit Clerk’s office: Mildred 

Fitzpatrick, Martha Foster, Anita Tutor, Carla Purdon, and Camille “Cami” 

Lipsey. During his campaign, Moorman had stated that he planned on keeping 

all five deputy clerks were he to take office.

After he took office, however, Moorman claims that he began to 

encounter problems with the staff. He purports that his primary concerns were 

unsupportiveness and what he terms “disloyalty,” but he also claims he was 

concerned with excessive use of office computers for personal purposes, rude 

customer service, and tardiness. Moorman also encountered a specific problem 

with Cami Lipsey. 

On the morning of September 5, 2012, Moorman received a call from the 

court administrator’s office, informing Moorman that the clerk’s office had not 

disposed of a court case dating from July 2011. Lipsey was responsible for 

dealing with matters related to the courts. Moorman claims that when he went 

to speak with Lipsey about the call, he noticed that there were numerous other 

cases of which she had not disposed. Upset, Moorman called Lipsey into his 

office to discuss her failure to handle the cases.

Fitzpatrick entered Moorman’s office after he had spoken with Lipsey. 

Moorman told Fitzpatrick that he had concerns with Lipsey’s performance and 

that he was considering firing her. He asked Fitzpatrick whether she thought 

that Lipsey was able to do her job, and Fitzpatrick responded that she could. 

After discussing Lipsey, Moorman asked Fitzpatrick why she did not retire. 

Fitzpatrick told Moorman that she had done a pre-application and that she 

could not live on the pension that she would draw. Fitzpatrick mentioned that 

one of her major concerns was health insurance.

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Moorman testified that, at the end of the day on September 5, he spoke 

to the entire staff about some of his concerns with their performance. 

Moorman purportedly told the staff that he was going to put in a time clock 

because of tardiness, that he was going to have all computer games removed 

from the office computers, that he wanted them to stop using their phones to 

access social media websites, and that he wanted “all the gossiping” to stop. 

Moorman came in the next day and, before Fitzpatrick had arrived for 

work, told Foster that he had worked up a retirement package for Fitzpatrick, 

Foster, and Tutor.1 Foster told Moorman that she did not want to retire and 

did not want a retirement package. When Fitzpatrick arrived, Moorman 

explained to her that he and his wife had drawn up a plan for Fitzpatrick, 

Foster, and Tutor to retire. Moorman told her that she could retire, but 

continue to do payroll work part-time (thereby maintaining her health 

insurance coverage). Fitzpatrick became very upset and told Moorman that 

she did not want to retire and could not afford to retire, and she began crying.2 

Fitzpatrick’s husband came in and spoke to Moorman, and Moorman agreed to 

let the retirement plan drop and carry on as before. Fitzpatrick claims that 

she was so upset, her blood pressure spiked and she went to the hospital.

That weekend, Moorman claims he was told by Lisa Baggett that Foster 

had remarked to another member of the community that Moorman was not a 

 

1 This contradicts Moorman’s account. He testified that he drew up a retirement plan 

for Tutor only after he heard that she was upset that a plan had been offered to Fitzpatrick 

and Foster but not her. Further, Moorman claims that he did not approach Foster about a 

retirement package until after he had offered the package to Fitzpatrick.

2 Moorman describes the conversation differently:

Okay. While I was telling Mildred about this plan -- you know, I was 

really excited about it, and I was telling her about it, and Ms. Foster started 

saying, you just want to run us off. You just want to force us into retirement. 

You just want to -- you know, you just want us gone. Well, when she started 

saying that then Ms. Fitzpatrick started getting upset. And so it frustrated 

me, and so I said, well, you know, the deal is off the table. Just forget it.

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man of his word and that he was incompetent. That Sunday, Moorman drew 

up a document listing his concerns with the staff’s performance. The document 

included a space for each deputy clerk to sign, indicating her acceptance of its 

terms. Moorman claims that he intended to meet with the deputy clerks on 

Monday morning and present them with the changes he wanted made. He 

testified that he eventually decided it would be futile to do so because he could 

not trust them.

On Monday morning, Moorman met with all of the members of the 

county board of supervisors, discussed the problems with his staff, and sought 

approval to terminate the deputy clerks (though his mind was still, apparently, 

not made up). Later Monday morning, Moorman met with all of the deputy 

clerks present that day—Fitzpatrick was still out sick on the orders of her 

physician—and fired them all. At the time of their firing, the ages of the 

deputy clerks, with the approximate number of years each worked for the 

chancery clerk’s office in parentheses, were as follows:

(1) Fitzpatrick—51 years old (35 years)

(2) Tutor—59 years old (18 years)

(3) Foster—64 years old (10 years)

(4) Lipsey—43 years old (16 years)

(5) Purdon—39 years old (5 years)

Fitzpatrick was replaced by Maggie Patrick, who was twenty-nine years 

old at the time she was hired. Foster was replaced by Cathy Purdon, who was 

forty-four years old at the time she was hired. The remaining new-hires were 

aged forty-eight, forty-seven, and thirty-eight years.

Fitzpatrick and Foster then filed suit against Pontotoc County in the 

United States District Court for the Northern District of Mississippi, alleging 

unlawful age discrimination in violation of the Age Discrimination in 

Employment Act (“ADEA”). The district court granted summary judgment in 

favor of Pontotoc County. Appellants timely appealed.

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II.

A district court’s grant of summary judgment is reviewed de novo, 

“construing all facts and evidence in the light most favorable to the non-moving 

party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273 

(5th Cir. 2015). Summary judgment is appropriate if “the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion 

for summary judgment, “[t]he Court must ‘draw all reasonable inferences in 

favor of the nonmoving party’ and ‘refrain from making credibility 

determinations or weighing the evidence.’” Celtic Marine Corp. v. James C. 

Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Turner v. Baylor 

Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). That said, “[a] party 

cannot ‘defeat summary judgment with conclusory allegations, 

unsubstantiated assertions, or “only a scintilla of evidence.”’” Id. (quoting 

Turner, 476 F.3d at 343).

III.

“The ADEA broadly prohibits arbitrary discrimination in the workplace 

based on age.” Lorillard v. Pons, 434 U.S. 575, 577 (1978). The ADEA makes 

it unlawful for an employer “to fail or refuse to hire or to discharge any 

individual or otherwise discriminate against any individual with respect to his 

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

individual’s age.” 29 U.S.C. § 623(a)(1). “Congress’ promulgation of the ADEA 

was prompted by its concern that older workers were being deprived of 

employment on the basis of inaccurate and stigmatizing stereotypes,” namely,

the stereotype that “productivity and competence decline with old age.” Hazen 

Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). Because of the ADEA’s 

proscriptions, “[t]he employer cannot rely on age as a proxy for an employee’s 

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remaining characteristics, such as productivity, but must instead focus on 

those factors directly.” Id. at 611.

“To establish an ADEA claim, ‘[a] plaintiff must prove by a 

preponderance of the evidence (which may be direct or circumstantial), that 

age was the “but-for” cause of the challenged employer decision.’” Moss v. BMC 

Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (alteration in original) 

(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)). If the 

plaintiff elects to make his ADEA case by the use of circumstantial evidence, 

this court applies the burden-shifting framework in McDonnell Douglas Corp. 

v. Green, 411 U.S. 792 (1973). Jackson v. Cal-Western Packaging Corp., 602 

F.3d 374, 378 (5th Cir. 2010). Under the McDonnell Douglas framework, the 

plaintiff “must first establish a prima facie case of age discrimination.” 

Squyres v. Heico Cos., 782 F.3d 224, 231 (5th Cir. 2015).3 If the plaintiff “meets 

his initial burden, the burden of production shifts to his employer to articulate 

a legitimate, nondiscriminatory reason for the challenged employment 

decision.” Id. “At this stage, the employer’s burden is one of ‘production, not 

persuasion,’ and ‘involve[s] no credibility assessment.’” Id. (alteration in 

original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 

(2000)). If the employer meets this burden by articulating a nondiscriminatory justification, “the presumption raised by the prima facie case is 

rebutted and drops from the case.” Id. (internal quotation marks omitted). The 

burden then shifts back to the plaintiff to “rebut the employer’s purported 

 

3 The prima facie case requires a plaintiff to 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.” Berquist v. Washington 

Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (quoting Rachid v. Jack in the Box, Inc., 376 

F.3d 305, 309 (5th Cir. 2004)).

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explanation, to show that the reason given is merely pretextual.” Moss, 610 

F.3d at 922. 

“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.”’” Jackson, 602 F.3d at 378–79 (quoting Laxton v. Gap, 

Inc., 333 F.3d 572, 578 (5th Cir. 2003)). Evidence that an employer’s proffered 

non-discriminatory explanation is false is “circumstantial evidence that is 

probative of intentional discrimination, and it may be quite persuasive.” 

Reeves, 530 U.S. at 147. “[A] plaintiff’s prima facie case, combined with 

sufficient evidence to find that the employer’s asserted justification is false, 

may permit the trier of fact to conclude that the employer unlawfully 

discriminated.” Id. at 148. “In determining whether the plaintiff’s rebuttal 

precludes summary judgment, ‘[t]he question is whether [the plaintiff] has 

shown that there is a genuine issue of material fact as to whether this reason 

was pretextual.’” Moss, 610 F.3d at 922 (quoting Jackson, 602 F.3d at 378).

Pontotoc County does not dispute that Appellants have made a prima 

facie case of age discrimination. Pontotoc County put forward Appellants’

purported disloyalty as its non-discriminatory justification for terminating 

Appellants. Appellants therefore have the burden of establishing a genuine 

dispute of material fact as to pretext. Given the record in this case, Appellants 

have carried their burden, and the district court erred in granting summary 

judgment.

First, Pontotoc County’s evidence that Appellants were disloyal is weak. 

Moorman pointed to Foster’s statements on the Friday before she was 

terminated that Moorman was incompetent and not a man of his word. But 

that is the only specific example of disloyalty that Moorman could put forward. 

In his deposition, Moorman was asked specifically about issues with 

Fitzpatrick’s loyalty:

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Q. What did they do which led you to believe that they 

weren’t loyal?

A. Different people in the community would tell me 

things that were being said about my competency and my -- what’s 

the word? I hate to say that they just called me a liar, but my --

Q. Well, tell me specifically what those people told you. 

And give me the first person first.

A. The first person?

Q. Yes.

A. And we’re talking which employee?

Q. You’re talking -- we’re talking about Ms. Fitzpatrick 

right now.

A. Okay.

Q. Did anybody in the community say anything about her 

being disloyal or disrespectful about you?

A. No.

Q. Okay. So that’s only going to be Ms. Foster, is that 

correct?

A. Uh-huh (Indicating yes). Ms. Foster.

This testimony is inconsistent with Moorman’s non-discriminatory 

justification of “disloyalty” as to Fitzpatrick. Another example Moorman gives 

of purported disloyalty was that an elected official, Van McWhirter, told him 

“just to be careful cause everybody wasn’t [Moorman’s] friend” and “[t]hat 

everybody wasn’t on [Moorman’s] side.” McWhirter apparently did not specify 

who wasn’t on Moorman’s “side.” Though Moorman, in his deposition, pointed 

to further reasons he felt his staff was disloyal, his descriptions of the offending 

behavior are general and devoid of particulars. Moorman admitted that the 

only negative statement about him of which he was aware was Foster’s 

comment to Lisa Baggett about his not being a man of his word and being 

incompetent. The lack of specific examples of “disloyalty,” aside from the one 

incident on the part of Foster, undermines Moorman’s purported nondiscriminatory justification, especially as to the other four deputy clerks. 

Those infirmities are compounded by the circumstances of Moorman’s 

discussion of retirement with Appellants. Moorman suggested retirement to

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Fitzpatrick and Foster before Foster made—and Moorman heard—the 

comment about his not being a man of his word.4 Given that this was the only 

specific incident suggesting disloyalty that Moorman could point to on the part 

of any of his clerks, a jury could potentially infer from this chronology that 

Moorman wanted to get rid of Appellants before he was aware of this comment. 

If Moorman had resolved to end Appellants’ employment before he had heard 

about Foster’s statement, a jury could infer that his proffered nondiscriminatory justification was a mere post-hoc rationalization. Moorman 

also stated in his affidavit that none of the retirement discussions “had 

anything to do with my decision to terminate the employment of the deputy 

clerks in my office.” The suggestion that it is merely coincidental that 

Moorman offered retirement to three deputy clerks four days before he fired 

them could be taken by a jury to further erode Moorman’s veracity.

Further, Lipsey’s deposition testimony lends some additional support to 

Appellants’ showing of pretext. During Lipsey’s deposition, she testified as to 

an exchange with Moorman:

Q. Did you ever hear Mr. Moorman make any comments 

about wanting to get rid of or replace the older employees and keep 

the younger ones there?

A. Yes.

Q. Tell me what you heard him say.

A. It was actually the day that Mr. Moorman called me in 

the office to fire me, just me, and he told me that I was actually his 

best employee, and he couldn’t understand why I wasn’t doing the 

job. And he said, what I want to do is keep you and Carla, but I 

would like to, you know, get my own people in here. And he said, 

keep you and Carla and get rid of the other ones.

Q. So he wanted to get rid of the three older ones?

A. Yes.

 

4 In fact, it was his suggestion of retirement that prompted Foster to make that 

comment, given his campaign promise to retain all five deputy clerks.

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Given the paucity of evidence supporting any sort of “disloyalty” on the part of 

Purdon or Lipsey, a reasonable jury could potentially infer that they were fired 

as a cover for unlawful age discrimination against Appellants.5

The evidence in this case is undoubtedly thin on both sides. Yet at the 

summary judgment stage, the defendant has the burden of showing that there 

is no genuine dispute of material fact, and all evidence is viewed in the light 

most favorable to the non-moving party. Given the weaknesses in the evidence 

supporting Pontotoc County’s purported non-discriminatory justification, 

Appellants’ evidence suggesting pretext, combined with their prima facie case,

is sufficient to preclude summary judgment. Resolution of this case will largely 

turn on credibility determinations, with regard to both Pontotoc County’s and 

Appellants’ witnesses. The district court, in granting summary judgment, 

appears to have drawn several of those conclusions as to credibility itself. 

While a jury may ultimately reach those same conclusions, assessments of 

 

5 Pontotoc County also argues that the “same actor” inference should apply in its favor. 

“The ‘same actor’ inference arises when the individual who allegedly discriminated against 

the plaintiff was the same individual who hired the plaintiff and gives rise to an inference 

that discrimination was not the motive behind plaintiff’s termination.” Russell v. McKinney 

Hosp. Venture, 235 F.3d 219, 228 n.16 (5th Cir. 2000). The inference arises because “[c]laims 

that employer animus exists in termination but not in hiring seem irrational” as it “hardly 

makes sense to hire workers from a group one dislikes . . . only to fire them once they are on 

the job.” Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (alteration in original) 

(quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)), abrogated on other grounds by 

Reeves, 530 U.S. 133. The same actor inference likely does not apply on the facts of this case. 

First, Pontotoc County cites no case in which the decision to retain an employee—rather than 

a decision to hire him—is sufficient to trigger the inference. But cf. Sreeram v. La. State Med. 

Ctr.-Shreveport, 188 F.3d 314, 321 (5th Cir. 1999) (applying the inference and affirming 

summary judgment where a decision-maker rejected a committee’s recommendation that he 

terminate the plaintiff). Second, there is a plausible explanation for the inconsistency that 

the jury could accept, namely, Moorman’s campaign promise to retain and work with the 

then-employed deputy clerks. See Russell, 235 F.3d at 228 n.16 (“Further, we also note that 

the ‘same actor’ inference does ‘not rule out the possibility that an individual could prove a 

case of discrimination.’” (quoting Brown, 82 F.3d at 658)).

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credibility are not appropriately drawn by the court at the summary judgment 

stage.6

IV.

Accordingly, the judgment of the district court is REVERSED, and the 

case is REMANDED to the district court.

 

6 We of course express no view on the ultimate merits of this case once it is submitted 

to a trier of fact.

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