Drake v. Magnolia Mgmt Corp ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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___________________
No. 00-31481
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PATRICIA DRAKE,
Plaintiff-Appellant,
versus
MAGNOLIA MANAGEMENT CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
Lower Docket No. 99-S
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July 11, 2001
Before DAVIS, JONES, and DEMOSS, Circuit Judges.
PER CURIAM:*
Appellant Patricia Drake sued appellee Magnolia
Management Corporation (“Magnolia”), asserting federal and state
discrimination claims after she was fired as the Director of
Nursing at a Magnolia-owned nursing home. The district court
*
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opinion should not be published and is not precedent except under the limited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.
granted summary judgment to Magnolia, and Drake brought this
appeal.
Drake alleges that the district court disregarded direct
evidence in support of her claims. We disagree. The age- and
gender-related statements that Drake’s supervisor Todd Robertson
allegedly made were not direct evidence of discrimination.
Virtually all of the statements were not related to Drake. The few
statements that Robertson allegedly made to Drake were not
connected to her termination. Thus, the statements only indirectly
suggested a discriminatory motive for Drake’s termination.
We turn to whether Drake presented sufficient
circumstantial evidence of discrimination to withstand Magnolia’s
summary judgment motion. We assume for the sake of argument that
Drake established prima facie claims for both age and gender
discrimination.1
Magnolia asserts that it fired Drake because 1) the
nursing department, while under her supervision, failed to submit
certain reports to the state for over a month; 2) the department
failed to adhere to company procedures for weighing residents; 3)
the department failed to properly monitor food consumption by
1
The district court held that Drake failed to establish a prima facie
gender discrimination case because her replacement was female. This fact,
however, does not necessarily foreclose a prima facie case. Nieto v. L&H Packing
Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997) (holding that a plaintiff could
establish a prima facie case even if his replacement was within his protected
class).
2
residents; 4) doctors were not signing care plans according to
company policy; and 5) Drake did not cooperate with other
department heads.
Drake must establish that these asserted reasons for
Drake’s discharge were pretexts for age or gender discrimination.
Evidence that proffered justifications were pretexts “will be
sufficient in most cases [for a plaintiff] to survive summary
judgment.” Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400,
402 (5th Cir.2001).
Here, substantial uncontradicted evidence supports
Magnolia’s asserted reasons for the termination. A Magnolia
consultant identified the problems in her department that the
company associates with Drake’s termination, and Drake does not
accuse the consultant of wrongdoing. Indeed, Drake confirmed the
existence of most of the asserted problems in her deposition
testimony. She contests only one of the proffered reasons in her
appellate brief.
We conclude that Robertson’s alleged age and gender-
related comments are not sufficient to create a genuine, material
issue of fact on Drake’s age and gender discrimination claims. To
be sure, Robertson’s alleged comments suggest that Robertson held
age and gender prejudices. This court has held that remarks
suggesting bias can, along with other evidence of pretext, allow a
plaintiff to withstand summary judgment. Russell v. McKinney Hosp.
3
Venture, 235 F.3d 219, 225 (5th Cir. 2000) (reversing summary
judgment for an employer in an ADEA case). Here, however, there is
no supporting evidence of age or gender animus. Robertson directed
very few comments at Drake, moreover, and his alleged comments were
not connected in any way to her termination. These comments simply
are not sufficient to overcome Drake’s utter failure to rebut
nearly all of Magnolia’s asserted reasons for firing her. Thus,
summary judgment was appropriate on Drake’s age and gender
discrimination claims.2
We also affirm the district court’s grant of summary
judgment to Magnolia on Drake’s remaining claims. Drake’s
retaliation claim fails because there is no evidence in the record
linking her alleged informal complaints with her termination.
Drake waived her hostile work environment claim by failing to
address it in her appellate brief.
Based on the foregoing, we AFFIRM the district court’s
grant of summary judgment.
2
We do not rely on the “same actor inference” to reach
this conclusion. Thus, we need not address Drake’s arguments on
this point.
4