IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40424

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant

v.

DYNMCDERMOTT PETROLEUM OPERATIONS COMPANY,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No.1:10-CV-510 

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

This is an appeal from the district court's grant of summary judgment for

DynMcDermott (DM) in an enforcement action brought by the Equal

Employment Opportunity Commission (EEOC) under Title I to the Americans

With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and Title I of the Civil

Rights Act of 1991. Because a genuine issue of material fact exists, we find that

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2013

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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the district court erred in granting summary judgment for DM on the claims of

discrimination under the ADEA and the ADA. Therefore, we REVERSE.

FACTS AND PROCEDURAL HISTORY

Phillip Michael Swafford worked for DynMcDermott1

(DM) as a

planner/scheduler for over two years between 1998 and 2000. The record

indicates that Swafford was a good, conscientious employee with an excellent

attendance record. Swafford was transferred to a higher-paying position in

December of 2000 and was laid off in 2003. Swafford’s wife was diagnosed with

an advanced stage of cancer in the fall of 2007. In 2008, Swafford, who was then

self-employed, was encouraged by former co-worker and then-current DM lead

scheduler June DuBois to apply for a vacant planner/scheduler position at DM’s

Big Hill2field storage site in Winnie, Texas. DuBois contacted Swafford with the

approval of supervisor Ray Wood. Swafford, then 56 years old, applied for the

position. Wood emailed the DM recruiter on January 31, 2008, asking for

Swafford’s resume and saying, “I would like him to be the one we talk to. He has

been a scheduler here before and he knows the job[.]” 

Wood and DuBois identified Swafford as a good choice and the best

candidate, and Wood indicated his desire to hire Swafford for the position. 

However, site director Tim Lewis, who had longstanding issues with Wood,

disagreed. Lewis repeatedly asserted, verbally and in email, that Swafford was

a poor choice because he was too old and his wife had cancer, which Lewis said

required a lot of Swafford’s time at home. Lewis further indicated that, because

of DM’s aging workforce problem, the position should be filled by someone

younger who did not have a disabled spouse.

1 New Orleans-based DynMcDermott contracts with the Department of Energy (DOE)

to manage the country’s strategic petroleum supply.

2 Big Hill is one of DM’s four crude oil petroleum storage sites.

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With regard to relevant emails, on February 4, 2008, Lewis sent a

confidential email to his supervisor, Deborah Hojem, the New Orleans-based

Director of Operations and Management for DM, saying:

I may need to get Mike Swafford as a temp to help out until we get

a new hire.

Ray, June and Danelle wanted to hire him permanently. Mike had

been previously trained to do this job since he was having problems

doing his job as and [sic] I&C tech. I just put the nix to this for

following reasons that I can only tell you.

1. He was riffed already

2. His wife has cancer and requires and [sic] lot of his time at

home 

3. He is at least 56 and has his own medical problems (he had

bad attendance record when he was riffed)

We have only had about two, maybe three other applications. 

Everyone seems to be at least in their 50's. Now I don’t have a

problem with “young folks” but I need to have someone that will be

here for a long, long time.

Lewis’ claim that Swafford had bad attendance when he was laid off is

unsupported by the record. Lewis testified at his deposition that Swafford did

not miss a lot of work while employed at DM. Also, others said that Swafford

actually had an excellent attendance record.

Lewis also told DuBois and Danelle Houston, another DM

planner/scheduler, on February 4 that he was opposed to hiring Swafford

because of his age and because his wife had cancer.

On February 6, 2008, Lewis sent an email to DM employee Chris Breaux,

with a copy to Hojem, which said:

As you know, we lost one of our three schedulers a week or so ago.

I stopped the hiring of a person who used to work here several years

ago and who was riffed. He also had bad attendance record and a

very ill spouse (cancer). However, he was trained in doing

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scheduling since he could not go out into the field to do his regular

I&C (at that time) work.

Long story short. In discussing this with June DuBois, (who by the

way had ALREADY CALLED THIS PERSON), she said that it

takes 1.5 YEARS to learn the job.

I just decided not to say anything.

How long do you feel it would take to train a newbe [sic] (someone

out of high school and maybe wanting a career – maybe in midtwenties or so)?

My personal opinion (and that is all it is) is that a person could be

pretty darn good within 6 months.

Thanks.

Tim

On February 7, Lewis told Wood during a managers’ regular morning

meeting that he did not want Wood to hire Swafford because of Swafford’s age

and his wife’s illness. Wood replied that those requirements were in violation

of the law and said Lewis could do the hiring himself. Lewis testified during his

deposition that, when he told Wood at the meeting he was opposed to hiring

Swafford, “Ray literally kind of starting [sic] screaming, ‘Tim, you’re telling me

to – you’re telling me to commit a felony. Tim, you’re telling me to commit a

felony. Tim, you’re telling me to commit a felony.’” To which, Lewis responded,

“[l]ook, Mike is old.”

Lewis later sent an email indicating that he would be on the hiring board

and drafted a Corrective Action Memo (CAM) against Wood for insubordination

based on his comments at the meeting. The CAM included the following

language: “Failure to follow these instructions will result in further disciplinary

action up to and including termination.” Lewis forwarded the CAM to Hojem

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and Human Resources (HR) Director Dione Heusel for review and edit. Lewis

also met with Wood about the CAM. 

Shortly after the meeting on February 7, Bernadette Nelson, a DOE

employee based at Big Hill who attended the managers’ meeting, sent Lewis an

email containing a web link to the EEOC guidance on age discrimination in

response to his comments. Lewis responded, “[a]ctually, I know about this,”

offered an explanation as to the need for “folks who can be around a while and

continue to contribute” and further referenced the “aging workforce.” Lewis then

forwarded the EEOC link provided by Nelson to other employees with the

following statement: “This morning in reference to hiring a scheduler, I

mentioned an age. I have never, nor will I ever discriminate on age or any other

issue which is protected by law. Not because it is the law but because it is what

is fair.”

Lewis later “informally” removed himself from the hiring board, but

proceeded with the CAM against Wood. On February 11, 2008, Lewis emailed

Hojem of his intention to give Wood the CAM along with a reminder and list of

expectations, which said in relevant part:

You need to keep this as a reminder that you will be held

accountable for your actions.

1. Your insubordination on Feb. 7 had ZERO to do with any failure

of mine to communicate with you. Your, “You have to communicate

with me, Tim”, was a feeble attempt to shift blame to me and to try

to justify your insubordination. The blame is 100% on you. You

chose to believe June DuBois and you failed to communicate with

me. Furthermore, spreading false rumors will definitely not be in

your best interest (i.e., that Shelby and I can do the hiring since you

also believed that Brigitte was in my office being assured she would

get the scheduler position when I had no knowledge of it).

. . .

4. Your insubordination (continued insubordination) will be

properly annotated in the written portion of your performance

evaluation to ensure this incident is not forgotten.

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Lewis also indicated that Wood should have received a CAM for a prior incident

after a hurricane and that he already had a CAM for sexual harassment. 

However, Hojem testified in her deposition that she did not know what Lewis

was talking about with regard to any CAM for sexual harassment.

Although Lewis drafted the CAM for insubordination and met with Wood

about it, the CAM ultimately did not end up in Wood’s file. Lewis testified at his

deposition that he thought “it died a natural death” because Wood “decided he

was going to do the hiring.” Further, Lewis said, “Ray, at some point in time,

decided he was going to do it. So I didn’t pursue it.” 

On February 8, a DM recruiter forwarded the resume of Mark Thomas,

then 34 or 35, to Wood with a note saying, “[t]his resume may be a bit of a

stretch of what you are looking for.” On February 18, Wood emailed the

recruiter and said that only two applicants, Swafford and Raymond Kuykendall,

had planner/scheduler background. On February 20, the recruiter sent Wood

the resume of Stephen Sajewicz and Wood indicated an interest in interviewing

him. On February 25, the recruiter emailed Wood to tell him that she had

spoken to Kuykendall, but his salary requirements were too high. She further

said, “I got your voice message that you were going to speak with Stephen

Sajewicz today on the phone. I guess that leaves your only other candidate as

Phil Swafford.” Interviews were conducted on February 27, 2008, by Wood,

DuBois and Hojem. Swafford, who lived locally, was interviewed in person. 

There is evidence in the record that Wood asked Swafford, during the interview,

if his wife’s cancer would interfere with his work attendance and that Swafford

indicated it would not. Sajewicz and Thomas, who had never been identified as

a qualified candidate, were interviewed over the telephone. Wood brought

Thomas in from Virginia for a face-to-face interview at DM’s expense while

DuBois was on leave and unable to participate. Hojem was also not present for

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that interview. Wood made a decision to hire Thomas on March 11, 2008, which

was prior to Thomas’ in-person interview.

On August 26, 2010, the EEOC filed an enforcement action under the

ADA, the ADEA, and the Civil Rights Act of 1991, asserting that DM failed to

hire Swafford because of his age and because of his association with a family

member with a disability. Thereafter, the district court granted DM’s motion for

summary judgment and the EEOC filed this appeal.

STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of summary judgment,

viewing all evidence in the light most favorable to the nonmoving party and

drawing all reasonable inferences in that party's favor. Dediol v. Best Chevrolet,

655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper when 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). “A

genuine issue of material fact exists ‘if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.’” Crawford v. Formosa

Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

DISCUSSION

I. Whether the district court erred in granting summary judgment

for DynMcDermott under the ADEA and the ADA.

II. Whether the district court erred in holding that the evidence

would not support a finding that the proffered reasons for the failure

to hire were not worthy of credence.3

The EEOC asserts that the district court erred in granting summary

judgment because there was ample evidence, whether direct or circumstantial,

to send the case to a jury. DM asserts that summary judgment was proper.

3 Because these issues are intertwined, they are combined for discussion.

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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 respectto his compensation, terms, conditions, or privileges of employment,

because of such individual's age.” 29 U.S.C. § 623(a)(1). A plaintiff has the

burden of proving by a preponderance of the evidence, direct or circumstantial,

that age was the “but-for” cause of the employer’s adverse action. Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). 

Again, a discrimination case may be proved through either direct or

circumstantial evidence. Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d

325, 328 (5th Cir. 1994). 

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.

1817, 36 L.Ed. 2d 668 (1973), a plaintiff relying on circumstantial evidence must

establish a prima facie case of discrimination. Moss v. BMC Software, Inc., 610

F.3d 917, 922 (5th Cir. 2010). See also Jackson v. Cal-Western Packaging Corp.,

602 F.3d 374, 378 (5th Cir. 2010). The burden then shifts to the employer to

provide a legitimate, nondiscriminatory reason for the action. Moss, 610 F.3d

at 922. If the employer articulates a legitimate, nondiscriminatory reason for

the action,the plaintiff must then rebut the employer’s purported reason to show

that it is merely pretextual. Id.

In determining whether the plaintiff’s rebuttal precludes

summary judgment, the question is whether the plaintiff has shown

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

reason was pretextual. 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. A showing

that the unsuccessful employee was clearly better qualified (as

opposed to merely better or as qualified) than the employees who

are selected will be sufficient to prove that the employer’s proffered

reasons are pretextual.

Id. (Internal marks and citations omitted).

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To establish a prima facie case of age discrimination in this context, the

EEOC must show that (1) DM failed to hire Swafford; (2) he was qualified for the

position; (3) he was within the protected class (age 40 or over) at the time; and

(4) a younger person was hired. Jackson, 602 F.3d at 378; see also Haas v.

ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999). 

The ADA makes it unlawful for a covered employer to discriminate against

an individual because of his disability or because of his relationship or

association with an individual with a disability. 42 U.S.C. § 12112(a), (b)(4). 

Under the ADA, the discrimination need not be the sole reason for the action,

but must play a role in the employer’s decision-making process and have a

determinative influence on the outcome. Pinkerton v. Spelling, 529 F.3d 513,

519 (5th Cir. 2008).

This Court has said that, “[t]o qualify as direct evidence, a document [or

comments] must be (1) age related, (2) proximate in time to the [action], (3) made

by an individual with authority over the termination, and (4) related to the

employment decision.” Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th

Cir. 2003); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012).

The district court found that the evidence referenced by the EEOC did not

constitute direct evidence because it required drawing certain inferences. 

Specifically, the district court said:

First, an inference must be made that despite being removed from

the hiring process by Hojem, Lewis still played a role in the decision

to not hire Swafford. And second, the fact-finder would have to infer

that Wood was cowed by Lewis, even though Wood stood up to Lewis

during the February 7 morning meeting, never received the

threatened CAM, and was reassured by Hojem that no adverse

consequences would arise from Lewis’s actions and statements.

The district court further found that, even if the evidence does not require the

fact finder to make inferences, Lewis’ statements and actions “amount to mere

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stray remarks” because the EEOC cannot satisfy the element which requires the

comment-maker to be the one with authority over the hiring decision. We

disagree.

Stray remarks are analyzed under Brown v. CSC Logic, Inc., 82 F.3d 651

(5th Cir. 1996), in direct evidence cases. This Court has said that, post-Reeves

v. Sanderson Plumbing Products, 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105

(2000), the stray remarks doctrine remains intact where the plaintiff has failed

to produce substantial evidence of pretext. Auguster v. Vermilion Parish School

Bd., 249 F.3d 400, 405 (5th Cir. 2001). See also Wallace v. Methodist Hosp.

System, 271 F.3d 212, 223 (5th Cir. 2001). Here, the district court applied the

stray remarks doctrine before determining whether the plaintiff had failed to

produce substantial evidence of pretext and then refused to consider those

remarks in determining pretext, which will be discussed later herein.

Notwithstanding that the district court’s analysis appears to be flawed,

courts do not “blindly accept the titular decisionmaker as the true

decisionmaker.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.

2000). “Rather, the discriminatory animus of a manager can be imputed to the

ultimate decisionmaker if the decisionmaker ‘acted as a rubber stamp, or the

“cat's paw,” for the subordinate employee's prejudice.’” Laxton v. Gap Inc., 333

F.3d 572, 584 (5th Cir. 2003). The relevant inquiry this court has applied in a

circumstantial evidence case is whether Lewis had influence or leverage over

Wood’s decisionmaking. Id.

The district court found that “Wood was not Lewis’s cat’s paw because

there is no evidence that Lewis had the requisite influence, control, or leverage

over Wood’s decision to not hire Swafford.” However, this finding is unsupported

by the record. There is no dispute that Lewis was Wood’s direct supervisor and

was responsible for Wood’s performance evaluations and implementation of

disciplinary actions, such as the CAM Lewis prepared after Wood spoke out

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against refusing to hire Swafford based on age and his wife’s disability and the

statements that Wood should have or did receive discipline regarding two earlier

incidents. Also, Wood’s pay and any raises were merit-based and dependent on

performance reviews done by Lewis. There is additional evidence of an ongoing

feud between Lewis and Wood, and that Lewis had refused to communicate with

Wood and removed some of his duties as a result of the feud. All of this indicates

that Lewis had influence or leverage over Wood’s decisionmaking. Id. Further,

the remarks would appear to meet the other requirements of direct evidence, as

set out above.4

However, even if the remarks are only circumstantial evidence, the

McDonnell Douglas analysiswould stillweigh against DM. As stated previously,

under McDonnell Douglas, a plaintiff relying on circumstantial evidence must

establish a prima facie case of discrimination. Moss, 610 F.3d at 922.

To establish a prima facie case of age discrimination,the EEOC must show

that (1) DM failed to hire Swafford; (2) he was qualified for the position; (3) he

was within the protected class (age 40 or over) at the time; and (4) a younger

person was hired. Jackson, 602 F.3d at 378. DM indeed failed to hire Swafford,

then 56, who was qualified for the position and instead hired Thomas, who was

more than 20 years younger. Thus, a prima facie case was established.5

4 DM asserts that the EEOC only argues on appeal that there was circumstantial or

indirect evidence and, thus, has now waived or abandoned any claim of direct evidence. We

disagree. While the EEOC did not strongly argue a claim of direct evidence, it did assert both

in its brief. However, even ifthe EEOC had abandoned a claim of direct evidence, the outcome

of the case would not be affected because we find that it would prevail on a circumstantial

evidence claim.

5 The district court found that DM “does not assert, and in fact assumes,that the EEOC

has presented a prima facie case of discrimination. Therefore, the Court will proceed to

determine whether [DM] has offered a legitimate, nondiscriminatory reason for its decision

to hire Thomas and not Swafford and whether the EEOC has shown that reason to be mere

pretext for discrimination.” On appeal, it also does not appear that DM is asserting that the

EEOC has failed to make a prima facie case under the ADEA, although the brief is not very

clear. DM does, however, mention a summary judgment claim that the EEOC failed to make

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The burden then shifts to DM to provide a legitimate, nondiscriminatory

reason for the action. Moss, 610 F.3d at 922. DM asserts that Swafford was not

hired because Thomas was more qualified. As this would be a legitimate,

nondiscriminatory reason for the action, the EEOC must then rebut the

purported reason to show that it is merely pretextual. That is, the EEOC may

attempt to establish that Swafford was the victim of intentional discrimination

“by showing that the employer’s proffered explanation is unworthy of credence.” 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097,

147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S.

248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “Moreover, although the

presumption of discrimination ‘drops out ofthe picture’ once the defendant meets

its burden of production, the trier of fact may still consider the evidence

establishing the plaintiff’s prima facie case ‘and inferences properly drawn

therefrom . . . on the issue of whether the defendant’s explanation is

pretextual.’” Reeves, 530 U.S. at 143.

Here, the district court said that, because DM satisfied its burden of

producing a legitimate, nondiscriminatory reason for its decision, the “burden

shifts to the EEOC to show that the reasons given are false or that Swafford was

‘clearly better qualified’ for the scheduler position.” The district court then

addressed the EEOC’s assertions that the evidence raises a question of fact

about whether Lewis influenced Wood’s decision, the statements about Thomas’

qualifications and about Swafford’s previous performance, and the statements

by Lewis and other DM management about the “aging workforce.”

Influence

The district court found that Lewis’ statements had no influence on Wood

because Hojem had assured Wood that there would be no retaliation from Lewis. 

a prima facie case under the ADA.

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The district court also dismissed evidence in Nelson’s deposition that Wood had

already decided to hire Swafford on February 7 as an “imprecise recollection”

and because interviews did not occur until February 27.

While there is evidence that Hojem spoke to Lewis and Wood regarding

retaliation, the timing of these discussions does not alleviate a question of fact

regarding influence. Lewis’ remarks and resulting threats of retaliation against

Wood lasted several days, at least from February 7 until the 11th. The record

is not clear as to when Lewis decided not to pursue the CAM. However, the

record is clear that Wood had indicated his desire to hire Swafford repeatedly to

numerous people prior to receiving the CAM from Lewis on February 11. 

In fact, the whole incident at the meeting wherein Lewis accused Wood of

insubordination was because Lewis believed Wood “was just wanting to, say,

buck the system and try to get – try to get [Swafford] hired without going

through the application process.” Lewis said that Wood “had said words to the

effect of, ‘You know, I think Brenda, you know, we’ve had that slot empty for a

long time. What about, you know, hiring Mike Swafford?’” After Lewis

disagreed with Wood’s desire to hire Swafford, Wood repeatedly informed Lewis

that he was violating federal law because Lewis was discriminating based on age

and disability.

Also, the record indicates that Hojem did not make any assurance to Wood

regarding retaliation until weeks later – after Wood had already decided to

interview Thomas, who he had previously not identified as a qualified applicant,

and after the CAM had “died a natural death” because Wood had agreed to do

the hiring. All of this corroborates the portion of Nelson’s deposition referenced

by the district court.

For these reasons, the district court’s finding that there was no issue of

fact about whether Lewis influenced Wood is unsupported by the record.

Qualifications

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With regard to qualifications, the district court found that “Swafford’s

qualifications were not ‘of such a weight and significance that no reasonable

person, in the exercise of impartial judgment, could have chosen [Thomas] over

[Swafford] for the job in question.’” (Quoting Celestine v. Petroleos de Venezuella

SA, 266 F.3d 343, 356-57 (5th Cir. 2001) (marks original). We note that this

high standard applies in cases where the plaintiff seeks to show that he was

“clearly better qualified” than the person selected for the position. See Celestine,

266 F.3d at 356; Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d

408, 412 (5th Cir. 2007). As we have noted, “[w]hile a showing that a plaintiff

is ‘clearly better qualified’ is one way of demonstrating that the employer’s

explanation is a pretext, it is not the only way.” Burrell, 482 F.3d at 412, n.11. 

Pretext may also be shown by “any evidence which demonstrat[es] the

employer’s proffered reason is false” or “unworthy of credence.” Id. at 412 &

n.11. “An explanation is false or unworthy of credence if it is not the real reason

for the adverse employment action.” Laxton, 333 F.3d at 578. “Merely disputing

[the employer’s] assessment of [the employee’s] performance will not create an

issue of fact.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.

2002). Rather, the question is whether that assessment, “even if incorrect, was

the real reason for” the action. Id. 

As the district court states, Wood completed the evaluation form to hire

Thomas. That form provided for scores between zero and two in the categories

of education, experience, technical skills, communication skills, interpersonal

skills, and customer services skills. A zero indicated the candidate did not meet

the minimum requirements, a one indicated that the candidate met the

minimum requirements, and a two indicated that the candidate met both the

minimum and preferred requirements. Wood said that he and DuBois, in a

collaborative effort, compiled the scores. And that DuBois had her own sheet. 

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But DuBois contradicted that claim, saying that she had never seen the

candidate evaluation form and did not assist in its preparation.

Swafford and Thomas both scored a two on all categories except education,

where Thomas scored a two and Swafford scored a one. The position does not

require a college degree. However, Swafford had an associate’s degree, whereas

Thomas’ resume indicated he had a bachelor’s degree. In reality, Thomas had

no college degree. While the district court cites cases for the propositions that

the employer has a right to rely on the representations made by an applicant

and has no duty to verify information, it is worth noting that Thomas was not

even asked about his education during the interview. The district court also

noted that Wood considered Thomas’ military training as part of his education

ranking, and that Wood ranked the third applicant a two based on his noncollege training. This does not support ranking Swafford lower as he also had

military training, spending six years in the Texas National Guard before being

honorably discharged.

Moreover, the record establishes that only Swafford had experience with

the SAP program used by DM. Further, although Swafford worked as a

planner/scheduler at DM for only two years, the record indicates that he used

the SAP program during his entire employment at DM from 1998-2003. 

Swafford also worked in area refineries as an apprentice insulator and a

pipefitter/fabricator from 1973 until 1992. Thomas had been a logistical

coordinator in the military, which included planning, but had no experience

working with the specific system used by DM. Thomas also testified in his

deposition that, during his interview, he did not recall anyone asking him about

the differences between the program he had used in the Army and the one used

by DM. The record also establishes that the program used by DM was unique,

which was a reason the position took so long to learn, and that using the

program was an essential duty of the scheduler position. Additionally, Lewis

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acknowledged that DM had never hired anyone who had gained experience with

the SAP system anywhere else, further indicating the uniqueness of the

program.

Swafford’s performance as a planner/scheduler was above expectations and

described as excellent and meticulous. Swafford had an excellent attendance

record. Lewis acknowledged that Swafford trained his replacement when he

transferred and that he had no performance issues. Further, as stated

previously, Swafford’s performance and ability was at such a high level that

Lewis had sent an email on February 4 saying he may need to hire him

temporarily to help out until someone was hired.

Accordingly, the district court’s finding that there was no issue of fact

regarding the statements about Thomas’ qualifications and Swafford’s previous

performance is unsupported by the record.

Aging Workforce

The district court appears to dispute that any statements regarding DM’s

aging workforce were actually made, but then found that, “[a]ssuming all of

these statements were made, they do not raise an issue of pretext because they

do not ‘refer in any way to [Swafford’s] age, let alone the age of any applicant or

employee, or the employment decisions of which he complains.’” The district

court then said that many of Lewis’ statements about the “aging workforce” were

directly related to the hiring of a new planner/scheduler and that “Lewis was

concerned with being able to replace people who retired with others who would

work in the company for a long period of time.” The district court then found

that, “because he did not have any influence over the hiring decision, as the

Court has already found, his statements cannot raise a genuine issue of pretext.” 

We disagree.

Finally, the court found:

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None of the EEOC’s proffered circumstantial evidence raises

a fact issue but-for Swafford’s age, [DM] would have hired him; nor

does the evidence demonstrate that Swafford’s association with a

person with a disability was either a but-for cause of [DM’s] decision

or a motivating factor in its decision.

The Court concludes that the EEOC has not presented

sufficient direct or circumstantial evidence to overcome summary

judgment. Thus, the EEOC has not met its burden under the butfor causation standard of the ADEA, or either the but-for or mixed

motive standard of the ADA, whichever standard is applicable.

Hojem admitted that DM site directors had met to discuss ways to deal

with its “aging workforce” problem, such as by creating a knowledge-retention

system to capture “knowledge association with a particular job that we could

transfer to the new person.” Hojem also admitted that Lewis told her that he

said during the February 7 meeting “that he did not want to hire Mr. Swafford

because of his age and the fact that his wife was ill, and it would cause him to

miss work.” Hojem said she told him that his action was highly inappropriate

and against the rules and regulations. However, she neither addressed the issue

in writing nor responded to Lewis’ various emails wherein he made statements

similar to what he had said during the meeting. Rather, she said she never

received the various emails. However, Heusel, who was copied on some of the

emails to Hojem, replied to at least one, thanked Lewis for keeping her in the

loop, and told him to “[p]lease let me know if/how we can support you.”

Lewis acknowledged the trustworthiness of other employees who made

statements regarding his remarks and the events that occurred. He also

admitted that he had made certain remarks at the meeting, but then attempted

to distinguish between “age” and “old,” saying: “I said, ‘Look, Mike is old.’ 

That’s what I said. The intent was absolutely nothing to do with don’t hire him,

because of age. I never mentioned age.” Lewis did not remember saying

anything about Swafford’s wife having cancer, but again acknowledged the

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trustworthiness of other employees who gave statements to the contrary. Lewis,

who denied knowing that DuBois wanted to hire Swafford, said that he went to

explain to DuBois and Houston what had happened at the meeting because “I

knew they wanted him in there.”

The record also indicates that Hojem had approved the travel for Thomas’

call back interview by 7:10 a.m. on February 27, 2008, which was before any of

the interviews had been done. Also, as stated previously, the call back interview

for Thomas was merely a formality, as Wood made the decision to hire him on

March 11, 2008, which was prior to Thomas traveling from Virginia at DM’s

expense for the face-to-face interview. Wood testified that, despite the fact that

a “phone interview is quite hard to do” because “you can’t reach the personality

or any of that type stuff,” here “[t]he scoring was already done before [Thomas]

came. All I wanted to do is verify what he was telling me in the interview

process and get to meet him.”

For these reasons, the district court’s finding that there was no issue of

fact about whether the aging workforce statements were pretextual is not

supported by the record.

Because this case is here on summary judgment review, this Court views

the evidence in the light most favorable to the EEOC, taking the record evidence

and all reasonable inferences therefrom in its favor. According to the EEOC’s

version of the facts, which are supported by the record, Lewis’ remarks were not

an isolated incident. They continued for a number of days and were offered both

verbally and in emails. The remarks were never offered in conjunction with any

other potential reasons for not hiring Swafford. Lewis never said he was

opposed to Swafford because there was a more qualified candidate. Instead,

Lewis only offered Swafford’s age and wife’s illness as a basis for not hiring him. 

Further, Swafford was rejected by Lewis before Thomas ever applied. Lewis’

supervisor, Hojem, and HR Director Heusel were copied on the exchanges

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regarding Lewis’ opposition to Swafford because of his age and the fact that his

wife had cancer. Lewis further had sent earlier emails to Hojem indicating that

he had “put the nix” on Wood’s desire to hire Swafford permanently because of

his age and his wife’s health problems. Additionally, the entire matter was

brought to the attention of DM CEO Bob McGough and General Counsel John

Poindexter. However, there is no indication that they ever took any action. 

Also, Wood repeatedly indicated his desire to hire Swafford until he was given

the CAM by Lewis.

Based on all of that, the evidence is such that a reasonable jury could

return a verdict for the EEOC, finding that but for Swafford’s age and disabled

wife, DM would have hired him. Thus, a genuine issue of material fact exists

and the district court erred in granting summary judgment for DM on the claims

of discrimination under the ADEA and the ADA. Therefore, we reverse.

III. Whether the district court erred in granting summary judgment

on the Commission’s request for liquidated and/or punitive damages.

The district court merely found that, because the “EEOC hasnot presented

sufficient direct or circumstantial evidence of intentional discrimination to

overcome summary judgment, the Court further concludes that summary

judgment is proper on the EEOC’s claims for liquidated and punitive damages.” 

Liquidated damages are available in cases of willful violations of the

ADEA. 29 U.S.C. § 626(b). A violation is willful if the employer knew or showed

reckless disregard of whether its conduct was prohibited by statute. Hazen

Paper Co. v. Biggins, 507 U.S. 604, 617, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993).

Under the ADA, a complaining party may recover punitive damages if it

proves that the defendant engaged in “discriminatory practices with malice or

with reckless indifference to the federally protected rights of an aggrieved

individual.” 42 U.S.C. § 1981a(b)(1).

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Here, both Lewis and Wood repeatedly indicated, as set out previously

herein, that they knew discriminating against Swafford because of his age or his

wife’s disability was illegal. Because the EEOC has presented sufficient

evidence to overcome summary judgment, we likewise reverse the district court’s

grant of summary judgment on the claims for liquidated and punitive damages.

CONCLUSION

For the reasons set out herein, the district court erred in granting

summary judgment to DM on the claims for discrimination under the ADEA and

the ADA, as well as the claims for liquidated and punitive damages. Therefore,

we REVERSE.

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