Hall v. Gillman Inc. ( 1996 )

  •                      United States Court of Appeals,
                                  Fifth Circuit.
                                  No. 95-20143.
                       Robert D. HALL, Plaintiff-Appellant,
     GILLMAN INC.; Frank Gillman Pontiac Company, doing business as
    Frank Gillman Pontiac/GMC, Defendant-Appellee.
                                 April 18, 1996.
    Appeal from the United States District Court for the Southern
    District of Texas.
    Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.
         STEWART, Circuit Judge:
         Robert D. Hall, who was 55 years old at the time, was
    dismissed from his position as GMC Truck Sales manager at Frank
    Gillman Pontiac Company ("Gillman Pontiac").            He sued, alleging
    that age was a determinative factor in his dismissal.              The trial
    court    granted   summary   judgment    to   Gillman   Pontiac,   and   Hall
    appeals.    Finding that Hall had established the existence of a
    genuine issue of fact as to whether the reasons given by Gillman
    Pontiac for Hall's dismissal from employment were mere pretext, we
         Gillman is a franchised General Motors dealer of Pontiac cars
    and GMC trucks.      In 1984, Gillman Pontiac's president, Mr. Ramsey
    Gillman, persuaded Hall to close his used car lot and to return to
          Circuit Judge of the Eighth Circuit, sitting by
    work for Gillman Pontiac, where Hall had previously worked, off and
    on, for a total of about 20 years.    From 1984 until January 1990,
    Hall was Gillman Pontiac's GMC Truck Sales Manager.
         In October 1989, Mr. Gillman met with Hall and Ervin Hawkins,
    Hall's counterpart in charge of Pontiac car sales.     Mr. Gillman
    informed Hall and Hawkins that sales of GMC's and Pontiacs were
    down in 1989, and that he was dissatisfied with their performance.
    Mr. Gillman advised them that changes would be made if they did not
    improve in the next 90 days.
         In January 1990, Mr. Gillman told Hall that Gillman Pontiac
    was replacing him as GMC sales manager because his performance had
    not improved.   Mr. Gillman offered Hall a sales position, but Hall
    declined and instead left Gillman Pontiac.     Hawkins, who is two
    years older than Hall, remained as Pontiac car sales manager for
    another seventeen months because Mr. Gillman thought Hawkins'
    performance had improved.
         Hall filed a complaint with the EEOC alleging unlawful age
    discrimination.   The EEOC issued a no-violation determination, and
    Hall then filed suit in Texas state court alleging claims under the
    Texas Labor Code.   When Hall amended his complaint to include ADEA
    claims, the defendants removed the case to federal court.       The
    district court granted summary judgment for Gillman Pontiac in
    February 1995, without opinion.
            A district court's grant of summary judgment is reviewed de
    novo.   Neff v. American Dairy Queen Corp., 
    58 F.3d 1063
    , 1065 (5th
    Cir.1995), cert. denied, --- U.S. ----, 
    116 S. Ct. 704
    133 L. Ed. 2d 660
        (1996).      Under       Fed.R.Civ.P.       56(c),    summary       judgment    is
    appropriate when the evidence, viewed in the light most favorable
    to the nonmovant, reflects no genuine issues of material fact.
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    106 S. Ct. 2548
    91 L. Ed. 2d 265
            In order to withstand a summary judgment challenge, an ADEA
    plaintiff    must       first    establish     a    prima    facie       case    of   age
    discrimination, after which the defendant is given an opportunity
    to    articulate    a    legitimate,     nondiscriminatory          reason      for   its
    disparate treatment of the plaintiff.                Lindsey v. Prive Corp., 
    987 F.2d 324
    , 326 (5th Cir.1993) (citations omitted). If the defendant
    successfully       does    so,     the   plaintiff         bears    the     burden     of
    demonstrating that the reason was pretextual.                      Id.    The ultimate
    burden of persuasion remains with the plaintiff.                     Id.
            The plaintiff can demonstrate that the reason was pretextual
    in two ways, "either [1] directly by persuading the court that a
    discriminatory reason more likely motivated the employer, or [2]
    indirectly by showing that the employer's proffered explanation is
    unworthy of credence."           Thornbrough v. Columbus and Greenville R.
    760 F.2d 633
    , 639 (5th Cir.1985) (citing Texas Department of
    Community Affairs v. Burdine, 
    450 U.S. 248
    , 255 n. 8, 
    101 S. Ct. 1089
    , 1094 n. 8, 
    67 L. Ed. 2d 207
     (1981)).                  Because we are reviewing
    a summary judgment, we need not determine whether Hall actually
    proved     that     Gillman's       reasons        were     pretextual          for   age
    discrimination, because in the context of a summary judgment
    proceeding, the question is not whether the plaintiff proves
    pretext, but rather whether the plaintiff raises a genuine issue of
    fact regarding pretext.         Thornbrough, 760 F.2d at 646.       Thus, as
    restated recently by this court en banc, a plaintiff can avoid
    summary judgment if the evidence taken as a whole, (1) creates a
    fact issue as to whether each of the employer's stated reasons were
    what actually motivated the employer, and (2) creates a reasonable
    inference that age was a determinative factor in the actions of
    which the plaintiff complains.        Rhodes v. Guiberson Oil Tools, 
    75 F.3d 989
    , 993 (5th Cir.1996) (en banc).              The employer will be
    entitled to summary judgment if the evidence taken as a whole would
    not allow a jury to infer that the actual reason for the discharge
    was discriminatory.       Id.   Conversely, an employee has created an
    issue of fact and the employer is not entitled to summary judgment
    if the evidence taken as a whole would allow a jury to infer that
    the actual reason for the discharge was discriminatory.                    See
    Thornbrough, 760 F.2d at 646.         Hall argues that the evidence he
    produced is sufficient for summary judgment purposes.             We agree.
         Gillman Pontiac concedes for purposes of appeal that Hall has
    established a prima facie case of age discrimination, as delineated
    by this court in Rhodes, 75 F.3d at 992.        However, Gillman Pontiac
    contends   that   it     replaced   Hall   because    of   his    poor   sales
    performance.      Hall     argues   that   Gillman    Pontiac's    claim   is
    unbelievable because he had won a major sales award only a few
    months before the warning given by Mr. Gillman, and that Gillman
    Pontiac ranked high in sales while he was there and has not held
    that rank since he left.       He also presents the affidavits of other
    employees attesting that he usually worked "bell-to-bell."               All
    parties admit that Gillman Pontiac was experiencing a slump in
    sales at the time, and it is not clear from the record whether
    Hall's sales had fallen off any more than anyone else's.            Hall also
    argues that direct evidence shows Gillman Pontiac was motivated by
    a discriminatory reason to dismiss him. He presents the affidavits
    of several employees and former employees attesting that Gillman
    Pontiac's    general   sales    manager   and   chief   operating    officer
    repeatedly stated their intent was to get rid of the old salesmen
    at the dealership.
          We conclude from the summary judgment record that Hall has
    created a genuine issue of fact as to whether Gillman Pontiac
    dismissed him for poor performance or because of his age.                 In
    Thornbrough, we reversed a summary judgment because we found that
    the appellant had created a genuine issue of fact as to pretext.
    Thornbrough, 760 F.2d at 647.       We noted that through the dim mists
    of the record as it stood at the time, we perceived a thin vapor.
    Thornbrough, 760 F.2d at 648.        As in Thornbrough, "whether this
    vapor will precipitate into a victorious shower is a question for
    the jury."   Id.   The trial court erred in granting summary judgment
    under the facts and circumstances of record.        We therefore REVERSE
    and REMAND for further proceedings.