### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 c o urt's grant of summary judgment for DynMcDermott (D M) i n 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 Ac t (

ADEA), 29 U.S.C. § 621, et seq. , and Title I o f the Civil Rights Act of 1991. Because a genuine i ssue of material fact exists, we find that U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40424 Document: 00512322871 Page: 1 Date Filed: 07/26/2013No. 12-40424

the di strict 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 D ynMcDermott 1 (DM) as a planner/scheduler for over two years betw e e n 1 998 and 2 000. The record indicates tha t S wafford w as a good, conscientious employee with an e xcellent attendance record. Swafford was transferred to a higher-paying position in December of 2 000 and was laid off in 2003. Swafford’s wife was diagnosed with

an a dvanced s t a ge of cancer in the fall of 2007. In 2008, S wafford, who w as 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 H ill 2 field storage site i n Winnie, Texas. DuBois contacted Swafford w ith the approval of supervisor Ray Wood. Swafford, then 56 years old, applied for the position. Wood emailed t h e D M r e c ruiter on January 3 1, 2008, asking for Swafford’s resume and saying, “I would like him to be the one w e t alk to. He has been a scheduler here before and he knows the job[.]” Wo o d and DuBois identified Swafford as a good choice and the best candidate, and Wo od i ndicated his desire t o hire Swafford for th e position. However, site director Tim Lewis, wh o had longstanding is s u e s with Wood, disagreed. Lewis repeatedly asserted, v erbally and in email, that Swafford was

a poor choice b ecause h e 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, th e p o s ition should be f illed b y someone younger who did not have a disabled spouse.

1 N ew Orleans -bas ed D ynM cD erm ott contracts with the Dep artm ent of Energy ( D O E) to m anage the country’s strategic p etroleum sup p ly.

2 Big H ill is one of D M ’s four crud e oil p etroleum s torage s ites

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With regard to relevant em a ils, on F ebruary 4, 2008, Lewis sent a confidential email to his supervisor, D e borah Hojem, the New Orleans-based Director of Operations and Management for DM, saying: I m ay need to get M ike Swafford a s a temp to help o ut until we get a new hire. Ray, June and Danelle wanted t o hire h im permanently. Mike had been previously trained to do this job since he was having p roblems doing his j ob as and [sic] I &C tech. I j ust put the nix to thi s f or following reasons that I can only tell you.

1. He was riffed already 2. His w ife has canc e r a n d requires and [sic] lot o f his time at home 3. He is at least 56 a n d h a s h is own medical problems (he had bad attendance record when he was riffed)
We have only had about two, maybe three other applicat i o n s . Everyone seems to be at least in their 50's. N o w 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’ cla i m 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. Al s o , o t h e r s said that S wafford actually had an excellent attendance record. L e w i s also t old DuBois and Danelle Houston, another DM planner/scheduler, on February 4 that he w as opposed to h iring S wafford because of his age and because his wife had cancer. On February 6 , 2008, Lewis sent an email to D M 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 s topped the hiring of a person who used to work h ere several y ears a g o a n d w h o was riffed. He also had bad attendance record and a v e ry ill spouse (c ancer). 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 th e 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 t ake to train a n ewbe [sic] (someone out of high school and maybe wanting a career – maybe i n midtwenties or so)? My personal opinion ( and that is all it i s) is that a person could be pretty darn good within 6 months. Thanks.
Tim
On Febr u a r y 7, Lewis told Wood du ring a managers’ r egular 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 require m e n t s w e r e in violation of the l a w and said Lewis c ould do the hiring himself. Lewis testified during his deposition that, when he told Wood at the meeting h e was opposed to hiring Swafford, “Ray literally kind of starting [ sic] screaming, ‘ Tim, you’re telling me to – you’re telling me t o c ommit a felony. Tim, you’re telling me t o commit a felony. Tim, you’re telling me to commit a felony.’” To which, L ewis responded, “[l]ook, Mike is old.” Lewis later s ent an email indicating that he would be on the hiring board and drafted a Corrective Action M emo (CAM) against Wood for i n subordination based on his comments at the meeting. The CAM included the following language: “Failure to follow these instructions will result in further disciplinary

ac t i o n u p to and including termination.” Lewis forwarded the CAM to Hojem

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and Human Resources (HR) Director Dione Heusel for review a nd edit. Lewis also met with Wood about the CAM. Shortly after the meeti n g o n February 7 , Bernadette N elson, a DOE employee b ased at Big Hill who attended the managers’ meeting, sent L ewis an email containing a web link to the EEOC guidance o n age d iscrimination in
response to his comments. Lewis r e sponded, “[a]ctually, I k now about this,” offered an explanation as to the need for “folks who can be around a while and continu e t o c o ntrib ut e” and further referenced the “aging workforce.” Lewis then forw a rded the EEOC link provided by Nelson to other employees with the following statement: “This morning in refer e n c e to hiring a scheduler, I mentioned an age. I h ave n ever, nor will I ever discriminate on age or any other issue which is protected b y l aw. Not because it is the law b ut because it is what is fair.” Lewis later “informall y” r e m oved himself f rom the h iring 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: Yo u need to keep this as a reminder that you will be he l d accountable for your actions.

1. Your insubordination on Feb. 7 had Z E RO to do with any f ailure of m i ne to communicate with you. Your, “You h ave to communicate with me, Tim”, was a f eeble attempt to shift blame t o me a nd t o try to justify your insubordination. The blame i s 100% on yo u . Yo u chose to believe June DuBois and you failed to communicate with me. Fu r t h e r more, s preading false rumors will definitely not be in your best interest (i.e., that Shelby and I can do the h iring since you also believed that B rigitte was in my office being assured she would get the scheduler position when I had no knowledge of it).

. . . 4. Your insubordination (c o ntinued insubordination) w i l l 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 Wo o d should have r eceived a CAM for a prior incident after a hurricane and that he already had a CAM f o r sexual h arassment. However, Hojem testified in her deposition that she di d not k n o w w h at 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 u p in Wood’s file. Lewis testified at his deposition that he thought “it died a natural death” because Wood “decided he

w a s going to do the hiring.” Further, Lewis s aid, “Ray, at s ome point in t i m e , decided he was going to do it. So I didn’t pursue it.” On F ebruary 8, a DM recruiter f o rwarded the resume of Mark Thomas, then 3 4 or 35, to Wood with a note s a y i n g , “[t]his resume m ay be a bit of a stretch of what you are looking for.” O n Febr u a r y 1 8, Wood emailed the recruiter and said that only t wo applicants, Swafford and Raymond Kuykendall, had planner/scheduler background. On February 20, the recruiter se n t W o o d the resume o f Stephen S a jewicz and Wood indicated an interest in i nterviewing h i m. On February 25, the r ecruiter emailed Wood t o tell him that s h e h a d spoken t o Kuykendall, but his salary requirements were too high. She further said, “I got you r v o i c e message that you were going to s p e ak with Stephen Sajewicz today on the p hone. I guess that leaves y o ur only other candidate as Phil Swafford.” Interviews w ere condu c t e d on February 2 7, 2008, by Wood, DuBois and Hojem

. Swafford, who lived locally, was interviewed in person. There is e vidence in the record that Wood asked Swafford, during the interview, if his wife’s cancer would interfere w ith his work attendance a nd that S wafford indicated it would not. Sajewicz and Thomas, who had never been identified as

a qualified candidate, w ere interviewed over the telephone. Wood brought Thomas in from Virgin i a f o r a face-to-face interview at DM’s expense while DuBois was on l eave a nd unable to participate. Hojem was also not present for

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that interview. Wood made a decision to hire Thomas on M arch 11, 2008, which was prior to Thomas’ in-person interview. On August 2 6, 2010, the EEOC filed an e nforcement action under t he ADA, t h e AD E A , and the Civil Rights Act of 1991, a sserting that DM f ailed to hire Swafford because of h i s age and because of his association with a family member with a disability. Thereafter, the district c ourt granted D M’s motion for summary judgment and the EEOC filed this appeal. STANDARD OF REVIEW This Court reviews de novo a district c ourt’s grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving p a r t y and drawing all reasonable inferences in that party's f avor. Dediol v. Best Chevrolet , 655 F.3d 435, 439 (5th Cir. 2011). Summary judgm e n t i s p roper when the movant shows that there is no genuine dispute as to any material fact and the movant i s entitled t o j u d g m e n t a s a matter of law. Fed. R

. Civ. P. 56(a). “A genuine issue of material fact exists ‘ i f t he evidence is such that a reasonable jury could return a verdict for the non-moving party

. ’ ” Cr a wford v . F ormosa Plastics Corp

. , 2 34 F.3d 899, 902 (5th Cir. 2000) (quoting A n d e rs o n 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 e r red in granting summary judgment for DynMcDermott under the ADEA and the ADA.
II. Whether the district court er r e d i n holding that the evidence would not support a finding t hat the proffered reasons for t he fai l ure to hire were not worthy of credence. 3
The EEOC asserts that the district cour t e rred in granting summary judgment because there was ample evidence, whether direct or c ircumstantial, to send the case to a jury. DM asserts that summary judgment was proper.

3 Becaus e thes e is s ues are intertw ined , they are com bined f or d is cus sion. 7 Case: 12-40424 Document: 00512322871 Page: 7 Date Filed: 07/26/2013No. 12-40424

The ADEA makes it unlawful for an employer “to fail or r efuse t o hire or t o d i s c harge a ny individual or otherwise discriminate against any individua l with respect t o hi s c o m p ensation, terms, conditions, or privileges of e mployment, because of such i ndividual's age.” 29 U.S.C. § 6 23(a)(1). A plaintiff has the burden of proving by a preponderance o f the evidence, direct or c ircumstantial, 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. 7 9 2 , 8 02, 93 S.Ct. 1817, 3 6 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 P ackaging Corp. , 602 F.3d 374, 378 (5th Cir. 2010). The b u r d e n t h e n s hifts to the employer to provide a l egitimate, nond i s c r i minatory reason f or the action. Moss , 610 F.3d at 922. I f t h e employer articulates a legitimate, nondiscriminatory reason for the actio n , the plaintiff must then rebut the e mployer’s purported reason to show that it is merely pretextual. Id

.

I n determining whether the plaintiff’s rebuttal preclud e s summary judgment, the question is whether the plaintiff has shown that there is a genuine issue of material fact a s t o w h e ther this reason was pretextual. A plaintiff may show pretext e ither 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 clear l y better qualified (as opposed t o m e r e l y better or as qualified) than the employees who are selected will be s ufficient to prove that the employer’s proffered reasons are pretextual. Id . (Internal marks and citations omitted).

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T o e stablish a prima facie case of age discrimination in this contex t , t h e EEOC m ust show that ( 1) D M failed to hire Swafford; ( 2) he was qualified for the position; (3) he was w ithin the protected c lass (age 40 or over) at the time; and (4) a younger person was h ired. J a c k s o n , 602 F.3d at 378; see a lso Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999). The ADA makes it unlawful for a covered employer to discriminate a g ai n s t

an indiv i d u a l b e c ause of his disability or because of his relationship or association with an i ndividual with a disab i l i ty. 42 U

. S.C. § 12112(a), (b)(4). Under the ADA, the discrimin a t i o n n e e d not be the sole r eason for the action, but must play a role in the employer’s decision-making process and have a determinative influence on the o u t c o me. Pinkerton v. Spelling , 529 F.3d 513, 519 (5th Cir. 2008). This Court has said that, “[t]o qualify a s direct e vidence, a document [or comments] must be (1) age related, (2) p roximate in time to the [action], (3) made by an individual with authority over the termination, and (4) related to the employment d ecision.” Palasota v. H aggar Clothing Co. , 3 42 F.3d 569, 576 (5th Cir. 2003); see also Reed v. Neopost U SA, Inc. , 701 F.3d 434, 441 ( 5th C ir. 2012). The district c ourt found that the evidence referenced by the EEOC did not consti t u t e direct evidence b ecause it required drawing certain inferences. Specifically, the district court said: First, an inference must be made that despite being removed from the h iring process by H ojem, Lewis s till played a role in the decision to not hire Swafford. And second, the fact-finder w ould h ave to infer that Wood was c owed by Lewis, e ven though Wood s tood up to L ewis during the February 7 m orning meeting, never r eceived th e t h r e a t ened CAM, and was reassured by H ojem that no a dverse consequences would arise from Lewis’s actions and statements.
The district court f

urther found that, e ven if the evidence does not requir e the fact finder to m ake inferences, Lewis’ statements and actions “amount to mere

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stray remarks” b ecause the EEOC cannot s atisfy the element which r e quires the comment

- m a k e r to be the one with authority over the hiring decision. We disagree. Stray remarks are analyzed under B rown 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. 1 33, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the stray r emarks doctrine remains intact where the p laintiff h as failed to produce substantial e vidence of pretext. Auguster v . Vermilion Parish School Bd. , 2 49 F.3d 400, 405 ( 5th Cir. 2 001). See also Wallace v. M e t hodis t Hosp. System , 271 F.3d 212, 223 (5th Cir. 2001). Here, the district court a pplied the stray remarks doctrine before determining whether the plaintiff had f ailed to produce substantial evidence of pretext and then refused t o c o n s i d er those remarks in determining pretext, which will be discussed later herein. Notwithstanding that the district co u r t ’ s analysis appears to be flawed, courts do not “blindly ac c e p t the titular decisionmaker as the true decisionmaker.” R ussell v. M cKinney Hosp. Venture , 235 F .3d 219, 227 (5th Cir. 2000). “Rather, the discriminatory animus of a manager can b e imputed to the ultimate decisionmaker if the decisionmaker ‘acted as a rubber s tam p , o r t h e “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 h as applied in a circumstantial evidence case is whether L e w i s h ad influence or l everage over Wood’s decisionmaking. Id

. The distr i c t c o u rt found that “Wood w as not Lewis’s c at’s paw because there i s no evidence that Lewis had the r equisite influence, control, or l everage

over Wood’s decision to not hire Swafford.” H owever, this finding i s u nsupported by the r ecord. There i s no dispute that Lewis was Wood’s direct supervisor and

was responsible for Wood’s performan c e evaluations and implementation of d i s c iplinary actions, such as the CAM Lewis prepared after Wood spok e o u t

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against refusing to h ire Swafford based on age and his wife’s disability and the statements that Wo od should have or did receive discipline regarding two earlier incidents. Also, Wood’s p ay 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 a nd removed some of h is duties as a r esult 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 o f direct e vidence, as set out above. 4 However, even if the remarks are o n l y c ircumstantial evidence, the McDonnell Douglas analys i s w o ul d s till w e i gh a g ainst DM. As stated previously, under M cDonnell Douglas , a plaintiff relying on circumstantial evidence must establish a prima facie case of discrimination. Moss , 610 F.3d at 922. To establish a p rima facie case of age discriminati o n , the EEOC must show that (1) DM failed to hire Swafford; (2) he was qualified for the position; (3) he

was w ithin the protect ed class (age 40 or over) at the time; and (4) a younger person was hired. Jackson , 602 F.3d at 378. DM i ndeed 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 D M a s s e r t s that the EEO C only argues on ap p eal that there w as circum s tantial o r ind irect evid ence and , thus , has now waivedor aband oned any claim of d irect evid ence. We d is agree. While the EEO C d id not s trongly argue a claim of d irect evid ence, it d id as s ert both in its brief

. H ow ever, even if the EEO C had aband oned a claim of d irect evid ence, the outcom e of the cas e w ould not be af f ected becaus e w e f

ind that it w ould p revail on a c i rcum s tantial evid ence claim

.

5 The d is trict court found that D M “d oes not as s ert, and in f act as s um es , that the EEO C has p re s e n t e d a p r im a f acie cas e of dis crim ination. Theref ore, the Court w ill proceed to d eterm ine w hether [ D M ] has of fered a legitim ate, n o n d is crim inatory reas on f or its d ecis ion to hire Thom as andnot Sw af f ord andw hether the EEO C has s how n that reas on to be mere p retext f or d is crim ination. ” O n ap p eal, it als o d oes not ap p ear that D M is as s erting that the EEO C has f

ailed to m ak e a prim a f acie cas e und er the AD EA, although the brief is not very clear. D M d oes , how ever, m ention a sum m ary jud g m ent claim that the EEO C f ailed to m ak e 11 Case: 12-40424 Document: 00512322871 Page: 11 Date Filed: 07/26/2013No. 12-40424

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 w as more qualified. A s this would b e a l e gi t i mate, 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 th at the employer’s proffered explanation is unworthy of credence.” Reeves v. Sanderson Plumbing Prods., I nc. , 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. 1 089, 67 L.Ed.2d 20 7 ( 1 9 81))

. “Moreover, although the presumption o f discriminati o n ‘ dro p s o ut o f th e p ic ture’ o nce the defendant meets its b urden o f p r o d u ction, the trier of fact may still c o nsider 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, b e c a u s e DM satisfied its burden of producing a legitimate, nondiscriminatory reason for its deci s i o n , t he “burden shifts to the E EOC t o show that the reasons given are false o r that Swafford was ‘clearly better q u a l i f

i ed’ for the scheduler position.” The district court then addressed the EEOC’s assertions that the evidence raises a q u e s t ion of fact about whether Lewis i nfluenced 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 f

ound that Lewis’ statements had no influence o n Wood because Hojem h ad assured Wood that there would be no retaliation from Lewis.

a p rim a f

acie cas e und er the AD A. 12 Case: 12-40424 Document: 00512322871 Page: 12 Date Filed: 07/26/2013No. 12-40424

The district court also dismissed evidence in Nelson’s deposition that Wood had already decided to hire Swafford on February 7 as an “im p recise r ecollection” and because interviews did not occur until February 27. Wh i l e there is e vidence that Hojem spoke to L e wis 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 s e v e ral days, at least from F ebruary 7 until the 1 1th. The record is not clear as t o w h en Lewis decided not to p ursue th e CAM. However, the record is clear that Wood had indicated his desire to h ire S wafford repeatedly to numerous people prior to receiving the CAM from Lewis on February 11. In fact, the whole incident at the meeting wherein L e wis accused Wood of insubordination w as because Lewis believed Wood “w a s j u s t wanting to, say, buck the system and tr y t o get – try to g et [ Swafford] hired without going through the application process.” Lewis said that Wood “had said w ords to the effect of, ‘You know, I think Brenda, you know, we’ve had that slot empty for a long time. What about, yo u k now, h iring Mike Swafford?’” After Lewis disagreed with Wood’s desire to hire Swafford, Wood repeatedly informed Lewis that he w as 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 l ater – 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 nat u r a l d e a t h” b ecause Wood had agreed to d o 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, t h e district court found that “Swafford’s qualifications were not ‘of such a weight and significan c e t hat no reasonable
person, in the exercise of impartial j udgment, could have chosen [Thomas] over [Swafford] for the j ob in question.’” (Quoting Celestine v. Petroleos de Venezuella SA , 266 F.3d 3 43, 356-5 7 ( 5 t h C i r . 2001) (marks original). We note that this high standard ap p l i e s i n cases where the plaintiff seeks to show that he was “clearly better qualified” than the person selected f or the position. See Celestine , 266 F.3d at 3 56; Burrell v. Dr. Pepper/ Seven Up Bottling G rp., Inc. , 4 8 2 F

. 3 d 408, 412 (5th Cir. 2 007). A s we h ave noted, “[w]hile a showing that a plaintiff is ‘clearly better qualified’ is one way of demonstrating that the emp l o y er’s explanation is a p retext, it is not the only way.” B urrell , 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” o r “unworthy of c redence.” Id

. a t 4 12 & n.11. “An explanation i s 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 R i c h a rd Ellis, Inc. , 309 F.3d 893, 899 (5th Cir. 2002). Rather, the question i s whether that assessment, “even if incorrect, was the real reason for” the action. Id

. As the district c ourt states, Wood completed the e v a l u a tion form to hire Thomas. That form provided for scores between zero and two i n the categories of education, e xp erience, t echnical skills, communication skills, interpersonal skills, and customer services skills. A zero indicated the c andidate did not meet the minimu m r e q u i r ements, a one indicated that the candidate met the

m i n i m u m requirements, and a two indicated that the candidate met b oth t h e

m i n i m u m and p referred requirements. Wood said that he and DuBois, in a collaborative e ffort, compiled the scores. And that D u B o i s h ad her own sheet.

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B u t DuBois contradicted that claim, saying that she had never seen t h e candidate evaluation form and did not assist in its preparation. Swafford and Thomas b oth scored a two on all c ategories except education, where Thomas scored a t wo and S w a f f o rd scored a o ne. The position does not require a college d egree. However, Swafford had an a ssociate’s degree, whereas Thomas’ resume indicated he had a bachelor’s d egree. I n reality, Thomas had no college degree. While the district court cites cases for the propositions that the employer h as a r i gh t t o r e l y on the representations m ade by an applicant and has no duty to verify i n f o r m a t i o n, it is w orth noting that Thomas was not

even asked about h is e ducation during the interview. The distri c t c o u r t also noted that Wood considered Thomas’ military training as part of his e ducation ranking, and that Wood ranked the third applicant a two based on his noncollege training. This does not support r a nking S wafford lo wer as he also had military training, spending six years in the Texas N ational Guard before being honorably discharged. Moreover, the record establishes that only Swafford had e xperience with the SAP program used by DM. Further, although Swafford worked as a p l a nner/scheduler at DM for only two years, the record indicates that he u s e d the SAP program during his entire employment at DM from 1 9 9 8

- 2 0 0 3. Swafford also w orked in area refin e r i es as an apprentice insulator and a pipefitter/fab r i c a t o r from 1973 until 1992. Thomas had been a l ogistical coordinator in the military, which included planning, but had no e x p erience working with the specific s ystem u s e d b y DM. Thomas also t estified in his deposition that, during his i nterview, h e did n ot recall anyone asking him about the differences between the program he had used in the Army and the one used by D M. The r ecord also establishes that the program u sed by DM was unique, which w a s a reason the position took so long to learn, and that u s ing the progr a m w a s an essential duty of the s cheduler p osition. Additionally, Lewis

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acknowledged that D M had never hired anyone who had gained experience with the SAP s ystem anywhere else, further indicating t h e uniqueness of the program. S w af f o r d’ s p e rf

o r m a nc e as a planne r/ s ch e dul e r w a s ab ov e e xp e c t ati o n s a n d described as e xcellent and meticulous. Swafford had a n excellent attendance record. L ewis acknowledged that Swafford trained his replacement when he transferred and that he had no perfor m a n c e issues. Further, as stated previously, Swafford ’ s performance a nd ability w as at such a h igh level that Lewis had sent an e m a i l o n February 4 saying h e may need to hire him temporarily to help out until someone was hired. Accordingly, the district court’s finding that th e r e was no i ssue 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 s tatements regarding DM’s aging workforce were actually m a d e , but then found that, “ [a]ssuming all of these statements were made, they d o not raise an issue of pretext because they do n ot ‘refer in a ny way t o [Swafford’s] age, let alone the age of any a pplicant or employee, or the emplo y m e n t decisions of which he complains.’” The district court then said that many of Lewis’ statements about the “aging workforce” were directly r elated t o the h iring of a ne w p l a n n e r/scheduler and that “Lewis was concerned with being able to replace people who retired with others who would work in the company for a l ong p eriod o f time.” The di strict court then found that, “because he did not have a ny i nfluence 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:

16 Case: 12-40424 Document: 00512322871 Page: 16 Date Filed: 07/26/2013No. 12-40424 None o f the E EOC’s proffered c ircumstantial evidence raises a fact issue but-for Swafford’s age, [DM] would h ave hired h im; nor does the evidence demonstrat e t hat Swafford’s association w ith a person with a disability was e ither a but-for cause o f [DM’s] decision or a motivating factor in its decision. The Court c oncludes that the EEOC h a s not presented sufficient direct or circumstant i a l evidence to overcome summary judgment. Thus, the EEOC has not met its burden u nder the butfor causation s tandard of the ADEA, or either the but-for or mixed motive standard of the ADA, whichever standard is applicable. Hojem admitted that D M site directors had met to discu s s ways to deal with it s “ aging workforce” problem, such as by creating a knowledge-retention system to captur e “ k n o w l edge association with a particular job that we could transfer to th e n e w p e r son.” Hojem also admitted that Lewis t o ld her that he said during the February 7 meeting “that he did not want to hire Mr. S wafford because of his age and the fact t h a t his wife was ill, and it would c a use him to miss work.” Hojem said she told him that his action was highly inappropriate and against the rules a nd regulations. However, she neither addressed the issue in writing nor responded t o Lewis’ various emails wherein he made statements similar t o what h e had said during the meeting. R ather, s h e s aid she never received the various emails. However, Heuse l , w h o was copied on some of the emails to H ojem, replied to at least one, thanked L ewis for keeping h er in the loop, and told him to “[p]lease let me know if/how we can support you.” Lewis acknowledged the trustworthiness of othe r e m p loyees who made statements regarding his remarks a nd the events that o ccur r e d

. H e also admitted that he had made c ertain remarks at the meeting, but then attempted to distinguish between “age” and “old,” s aying: “ I said, ‘Look, Mike i s o l d .’ That’s what I said. The i ntent was absolutely nothing t o do with don’t hire him, because of a ge. I n ever mentioned age.” Lewis did n o t r emember saying anything abou t S wafford’s wife having cancer, but a gain acknowledged the

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trustworthiness of other employees who gave statements to the contrary. Lewis, who denied knowing that D uBois wanted to hire Swafford, s aid that he went to explain to DuBois and Houston what h a d happened at the m eeting 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 2 7, 2008, which was b efore 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 dec i s i on t o hire him on March 11, 2008, which w a s p r i o r t o Thomas traveling f rom Virginia at DM’s
expense for the face-to-face interview. Wood testified that, despite the f act that

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

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

came. All I wanted to do is verify what he was t e l l i n g 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 a ging w orkforce statements w e r e p r e t extual is not supported by the record. Because this case is here on summary judgment review, this C ourt views the e vidence in the light most favorable to the EEOC, taking the record evidence and all re a s o n ab l e i nferences therefrom i n its favor. According to the EEOC’s version of the facts, which are supported b y the record, Lewis’ remarks were not

an i solated incident. They continued for a number of days a nd were offered both verbally and in emails. The remarks were never offered in conjunction with any other pot e n t i al reasons for not hiring Swafford. Lewis never said he was opposed to Swafford because there w a s 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 eve r a p p l i e d. Lewis’ supervisor, Hojem, and HR Director H euse l w ere 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 H ojem indicating that he had “put the nix” o n Wood’s desire to hire Swafford permanently because of his ag e and his wife’s health problems. A dditionally, the entire matter was brought to the attention of DM CEO Bob McGough and General Counsel John Poindexter. H o w e v er, there is no indication that they e ver 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 j ury could return a verdict for the E EOC, finding that but for Swafford’s age and disabled wife, D M would have h ired h i m . T h u s , a genuine issue of material fact exists and the district court erred i n 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, becau s e th e “ E E O C h a s n o t p r esented sufficient direct or circumstantial evidence of i ntentional discriminati o n to

overcome summary j u dgment, the Court f urther conclud e s t h at summary judgment is proper o n the EEOC’s claims for liquidated and punitive damages.” Liquidated d amag e s a r e available in cases of willful violations of the ADEA. 29 U.S.C. § 6 26(b). A violation i s willful if the employer knew or showed reckless disregard o f whether its c o nduct was p rohibited by statute. Hazen Paper Co. v . Biggins , 5 07 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 protecte d r i ghts of an a ggrieved individual.” 42 U.S.C. § 1981a(b)(1).

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Here, both Lewi s a n d W ood r e peatedly indicated, as set out previously herein, th at they knew discriminating against Swafford because o f his age or his wife’s di sability was illegal. Be c a u s e the EEOC has presented sufficient evidence t o ov e rc o m e s u m m ary judgment, we likewise reverse the district court’s grant o f summary judgment on the claims for liquidated a nd punitive damages. CONCLUSION For the reasons set out herein, the dis t r i c t court erred in granting
summary judgment t o DM on the claims for di scrimination under the ADEA and the ADA, as well as the claims for liquidated and punitive damages. Therefore, we REVERSE.

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