Rachid v. Jack in the Box, Inc.

• Citation: 376 F.3d 305
• Decision Date: 25 June 2004
• Docket Number: No. 03-10803.,03-10803.
• Parties: Ahmed P. RACHID, Plaintiff-Appellant, v. JACK IN THE BOX, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.3d 305

Ahmed P. RACHID, Plaintiff-Appellant, v. JACK IN THE BOX, INC., Defendant-Appellee.

No. 03-10803.

United States Court of Appeals, Fifth Circuit.

June 25, 2004.

Durwood Douglas Crawford (argued), Goins, Underkofler, Crawford & Langdon, Dallas, TX, for Plaintiff-Appellant.

Lu Pham (argued), Karger, Key, Barnes & Lynn, Fort Worth, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Ahmed P. Rachid ("Rachid") filed an age discrimination claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, alleging that he was terminated from his managerial position at Jack In The Box, Inc. ("JIB"). Because Rachid established a prima facie case and because issues of material fact concerning JIB's proffered reason for terminating Rachid are disputed, summary judgment was improper and this case is REVERSED and REMANDED.

I. FACTS AND PROCEEDINGS

Rachid was employed by JIB from October 1995 to February 2001. Patrick Powers ("Powers") became Rachid's supervisor in September 1999. Rachid managed two restaurants, and shared managerial duties at one of the restaurants with Khalil Haidar ("Haidar"). Powers repeatedly criticized Rachid, and, according to both Rachid and Haidar, made disparaging comments about Rachid's age. Rachid, who was 52 years old, reported these comments to JIB's human resources department, and even requested a transfer because he feared that Powers sought to fire him because of his age. A transfer was never approved and Rachid was fired, according to JIB, for failing to follow policies related to recording employee time.

The parties sharply join issue over whether Rachid violated company policy. On June 15, 2000, Powers sent the following email to managers of JIB restaurants:

Each week I down load [sic] the "punch changes" at each store for the prior week. I am concerned about the increased number of "punch changes" that are related to BREAKS. Let me make clear if anyone alters an employee's hours to save labor, THEY [sic] ARE BREAKING THE LAW! This is the type of offense that I have no ability to help an individual. Employees must punch out for breaks on there [sic] own, M[anagers-In-Charge] need to verify that each employee punched out at the clock. If an employee fails to punch out at the clock they [sic] are to be written up on a P108 [disciplinary form]. NO MANAGER IS TO GO BACK AND DO A PUNCH CHANGE WITHOUT A SIGNED P108 FOR PROOF! The P108 needs to be kept in the employee file. If the employee contests their [sic] hours and there are punch changes without a P108 for back-up documentation, the manager is putting their [sic] job at risk. It becomes a case of "he said/she said" and the manager has no proof that they [sic] didn't "illegally alter" the time clock. The P108 is the only protection you have against this kind of allegation. Remember: "very few people have ever been fired for missing a number, but all that get caught reporting a false number will always be fired!" I cannot help you out of this kind of problem.

The parties disputed whether this email sent by Powers represents JIB's company policy.¹

One of JIB's human resources employees, Kellie Teal-Guess ("Teal-Guess"), investigated several "punch changes" entered for employees at restaurants that Rachid managed. Though Rachid disputes whether this investigation revealed any time-card alterations made by Rachid,² he concedes in his deposition that he occasionally changed time-cards when employees took breaks, and that he did not fill out P108 forms for all of those changes. Without further investigation, Powers terminated Rachid immediately upon learning that he had altered time-cards without completing P108 forms. Rachid's replacement was 47 years old.

Rachid filed an EEOC charge complaining of age discrimination under the ADEA, acquired a Right to Sue letter, and filed suit. The district court granted summary judgment in favor of JIB and dismissed Rachid's claim. Rachid timely appeals.

II. STANDARD OF REVIEW

This Court reviews a grant of summary judgment de novo, and applies the same standard as the district court. Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297 (5th Cir.2002). District courts properly grant summary judgment if, viewing the facts in the light most favorable to the nonmovant, the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

III. DISCUSSION

A. Proper legal standard for an ADEA claim.

It appears that the district court applied the McDonnell Douglas approach in analyzing Rachid's claim. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The district court's opinion states that Rachid did not establish a prima facie case, and later notes that "nothing in the record suggests that J[IB]'s basis for terminating Rachid was a pretext." The term "pretext" strongly suggests that the district court engaged in a McDonnell Douglas burden shifting analysis.³ See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. It is disputed, however, whether this is the proper legal framework.

(1) Age discrimination under the ADEA pre-Desert Palace.⁴

Under the ADEA, "[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). "When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). To demonstrate age discrimination a "plaintiff must show that '(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.'" Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003) (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993)). That is, regardless of how much younger his replacement is, a plaintiff in the protected class⁵ may still establish a prima facie case by producing evidence that he was "discharged because of his age." Palasota, 342 F.3d at 576 (quotations omitted).

A plaintiff can demonstrate age discrimination in two ways, either through:

direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the "pretext" method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)....

If, however, plaintiff produces direct evidence of discrimination, the McDonnell Douglas test is "inapplicable." The Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)], mixed-motives theory of discrimination comes into play where direct evidence of discrimination is presented, but the employer asserts that the same adverse employment decision would have been made regardless of discrimination. Although Price Waterhouse can be characterized as a method to prove discrimination, the mixed-motives theory is probably best viewed as a defense for an employer. See Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775 ("[T]he employer's burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and the employer, if it wishes to prevail, must persuade it on another.").

Unlike McDonnell Douglas, which simply involves a shifting of the burden of production, Price Waterhouse involves a shift of the burden of persuasion to the defendant. In other words, under Price Waterhouse, once a plaintiff presents direct evidence of discrimination, the burden of proof shifts to the employer to show that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff prevails

....

In summary, Price Waterhouse and McDonnell Douglas are alternative methodologies for proving discrimination.

Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1216-17 & n. 11 (5th Cir.1995) (quotations and citations omitted).

One district court in this Circuit recently described the mixed-motives analysis. "A mixed-motives case arises when an employment decision is based on a mixture of legitimate and illegitimate motives.... If the employee proves the unlawful reason was a motivating factor, the employer must demonstrate that it would have taken the same action in the absence of the impermissible motivating factor." Louis v. E. Baton Rouge Parish Sch. Bd., 303 F.Supp.2d 799, 801-04 (M.D.La.2003); see also Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir.1999) (noting that a mixed-motives analysis applies "where the evidence is sufficient to allow a trier to find both forbidden and permissible motives.") (quotations and citations omitted). Whereas under the pretext prong of the McDonnell Douglas analysis, the plaintiff aims to prove that discriminatory motive was the determinative basis for his termination, under the mixed-motives framework the plaintiff can recover by demonstrating that the protected characteristic (under the ADEA, age) was a motivating factor in the employment decision. See id.; Mooney, 54 F.3d at 1216-17.

The parties contest whether Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), alters the analysis by allowing a plaintiff to proceed with a mixed-motives approach in a case where there...