Berquist v. Washington Mut. Bank

• Decision Date: 31 August 2007
• Docket Number: No. 05-20956.,05-20956.
• Citation: 500 F.3d 344
• Parties: Philip BERQUIST, Plaintiff-Appellant, v. WASHINGTON MUTUAL BANK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

500 F.3d 344

Philip BERQUIST, Plaintiff-Appellant, v. WASHINGTON MUTUAL BANK, Defendant-Appellee.

No. 05-20956.

United States Court of Appeals, Fifth Circuit.

August 31, 2007.

Joseph Y. Ahmad (argued), Ahmad, Zavitsanos & Anaipakos, Houston, TX, for Berquist.

Jeffrey C. Londa, Robert Lewis Ivey (argued), Ogletree Deakins, Houston, TX, for Washington Mut. Bank.

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

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

We denied Appellant's petition for panel rehearing. In response to the petition for rehearing, the opinion of the court issued on July 12, 2007, at 492 F.3d 576 (5th Cir.2007), is withdrawn, and the following is substituted.

This appeal arises from the district court's grant of summary judgment in favor of Washington Mutual Bank ("Washington Mutual") on Philip Berquist's claim of age discrimination. We affirm the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Berquist began his career working in the internal audit department of United Savings Bank. In 1992, Bank United acquired United Savings Bank, which retained Berquist as an employee. Berquist received several promotions during his tenure with United Savings Bank and Bank United. In 2000, Bank United merged with Washington Mutual. Washington Mutual asked Berquist to stay an additional nine months after the merger to help consolidate the risk rating grids used in the two credit review departments. Berquist accepted this offer.

Following this nine-month period, Washington Mutual offered Berquist a permanent position. Berquist held the position of "Senior Credit Examiner, Loan Review Department, Corporate Credit Risk Management." Berquist alleges that he was qualified for the new position, he received "exceeds expectations" performance evaluations in 2001 and early 2002, and he never received written or verbal notices criticizing his job performance. In September 2002, Washington Mutual hired Melissa Martinez to supervise the bank's credit review function, and in early 2003, promoted Martinez to Chief Credit Review Officer. Martinez served as the corporate manager of Berquist's duties throughout the deterioration of his employment relationship with the bank.

In November 2002, the bank decided to transfer Berquist's then-current job functions from Houston, Texas, to Seattle, Washington. In light of this business decision, Washington Mutual offered Berquist a different job in the credit review department. Washington Mutual contends that Berquist's work tasks, prior to November 2002, only involved operational and administrative duties. After this date, Berquist's job duties required credit review skills. Martinez asked Berquist to work on the "review and approval" of unissued loan reports. Berquist accepted this job position and exclusively focused on "review and approval" work from early November 2002 to February 6, 2003.

In late 2002, the credit review department of the Houston office was staffed by Berquist, age 54, Ron Yancis, age 56, Donald Plaisance, age 39, and Karl Zatopek, age 41. Berquist and Yancis worked in the Commercial Banking Group ("CBG") under the management of Robert Granfelt. Plaisance and Zatopek worked in the Specialty Finance Group ("SFG") under the management of Cynthia Hart, and later under the immediate supervision of Scott Frazee. Frazee's counterpart position in CBG remained vacant, and therefore, Frazee acted as the administrative manager for both groups.

During a December 2002 conference call, Berquist alleges that Martinez said, "Performance issues will be promptly and aggressively dealt with. We will build leaders internally and attract younger talent." On February 6, 2003, Martinez reported to Berquist that she was "very unhappy" with the Houston office's production. Shortly thereafter, Martinez issued Berquist a performance improvement notice ("PIN"), criticizing Berquist's allegedly negative attitude, poor communication skills, and below standard work product. The PIN also alleged that Berquist's "[t]echnical skills and proficiencies are `operational' in nature and not commensurate with the job function, CCR [Corporate Credit Review] focus, or those required for a Credit Review Officer."

In response to the PIN, Berquist asked for specific examples, which he never received from Martinez. Berquist denied every allegation of poor work performance in a written response. Berquist conceded that his work experience before the merger was "strictly in an administrative and operational role," and based on his understanding, Washington Mutual asked him to remain with the bank to "continue in [his] administrative and operational duties." Further, Berquist adds that "I have never at any time represented to anyone that I have specific expertise in credit review since my responsibilities at both Bank United and [Washington Mutual] were solely of an administrative and operational nature."

On May 14, 2003, Martinez told Berquist that his skills and proficiencies were no longer needed in the credit review function. Martinez allowed Berquist forty-five days to find a position in another department of Washington Mutual. Berquist asserts that he asked Martinez to downgrade his PIN so as to not prevent an internal transfer to another position, but she denied this request.

On June 9, Washington Mutual offered Berquist a separation proposal, which he refused to accept. Following this offer, on June 26, 2003, Martinez conveyed to Berquist that he would be laid off in conjunction with a reorganization of the CBG. Washington Mutual contends that it decided for business reasons to eliminate the CBG function in Houston and transfer the group to Seattle or California because the West Coast handled a greater portion of the CBG's asset base. Based on this avowed business decision, Berquist did not receive forty-five days to secure another position.

Berquist filed suit against Washington Mutual alleging violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"), and Washington Mutual moved for summary judgment. The district court granted Washington Mutual's motion. The court concluded that Berquist failed to establish a prima facie case of wrongful termination based on age discrimination because the record lacked evidence of Berquist's qualifications for his position. Additionally, the court concluded that Berquist failed to establish a prima facie case of "reduction in force" based on unlawful age discrimination because the record lacked evidence of Berquist being qualified for another position in the company. Berquist does not appeal the district court's holding on his claim of reduction in force based on unlawful age discrimination; therefore, we address whether the district court properly granted summary judgment on his wrongful termination claim.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, applying the same legal standards as the district court. Machinchick v. P.B. Power, Inc., 398 F.3d 345, 350 (5th Cir.2005). In deciding a motion for summary judgment, the court must determine whether the submissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.2003). In deciding whether a fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). "Even if we do not agree with the reasons given by the district court to support summary judgment, we may affirm the district court's ruling on any grounds supported by the record." Lifecare Hospitals, Inc. v. Health Plus of Louisiana, 418 F.3d 436, 439 (5th Cir.2005) (citing Forsyth v. Barr, 19 F.3d 1527, 1534 n. 12 (5th Cir.1994)).

III. DISCUSSION

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). "A plaintiff can demonstrate age discrimination in two ways, either through: direct evidence or by an indirect or inferential [circumstantial] method of proof." Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir.2004). A plaintiff relying on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the employment decision. Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). If a plaintiff produces direct evidence of discrimination, no further showing is required, and the burden shifts to the employer.¹ Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

To establish a prima facie case of age discrimination based on circumstantial evidence, "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." Rachid, 376 F.3d at 309 (internal quotations and citations omitted); Palasota v. Haggar Clothing Co., 342 F.3d 569, 575-76 (5th Cir. 2003). Berquist fulfills the first and third elements of a prima facie case: he was terminated from his position and he was a member of the protected class at the time of discharge. With respect to the remaining elements, we first determine whether Berquist fulfilled the second component of a prima facie case, demonstrating his qualifications for the position of a credit review officer.

A...