Opinion
Civil Action No. 1:03-CV-074-C.
August 3, 2004
ORDER
On this date the Court considered UNITED SUPERMARKETS, LTD., FORMERLY D/B/A UNITED SUPERMARKETS, INC.'s ("Defendant" or "United") Motion for Summary Judgment and Brief in Support, together with its Appendix, filed March 12, 2004. The Court also considered Plaintiff CLAY C. BUSH's ("Plaintiff") Brief in Response to Defendant's Motion for Summary Judgment, together with its Appendix, filed April 23, 2004. The Court further considered Defendant's Reply Brief to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed with leave of the Court on May 10, 2004. The Court additionally considered the Plaintiff's Sur-reply, together with its Supplemental Appendix, filed June 8, 2004. After considering all the relevant arguments and evidence, this Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
Plaintiff, along with Charles Jackson and Edwin Petross, originally filed this lawsuit on December 22, 2002, in the 104th Judicial District Court in and for Taylor County, Texas. After Plaintiffs filed their First Amended Petition alleging claims of age discrimination under federal law, Defendant removed the case to this Court.Plaintiff was approximately 44 or 45 years of age when interviewed for a job by David McKenzie ("McKenzie"), one of United's District Managers. Thereafter, Plaintiff worked for Defendant until November of 2000. During Plaintiff's employment with Defendant, he and McKenzie reached an agreement that Plaintiff would transfer to the United store in Vernon, Texas. McKenzie wanted Plaintiff to go to the Vernon store and told Plaintiff that if he didn't take it, he was going to be watched closely and, if he `sneezed', he would be terminated. Plaintiff was further told that if he went to the Vernon store, he could transfer back to Abilene after two years if the Vernon store had good sales while under his control. Before moving to Vernon, Plaintiff investigated the situation there and discovered that the average time a manager stayed was two years. Plaintiff and his wife then went to see McKenzie and told him they would go to Vernon, as McKenzie had suggested, but that they wanted, in effect, an agreement or assurance that upon the expiration of two years, Plaintiff could have the option of transferring back to Abilene. Plaintiff understood that the transfer would be a transfer back to Abilene and that it would be at the company's expense.
At the time of his demotion, Plaintiff was 51 years of age.
Plaintiff subsequently agreed to transfer to Vernon. Thereafter, in November of 2000 — which marked the conclusion of approximately two years at the Vernon store — McKenzie demoted Plaintiff and told him that he would have to re-transfer back to Abilene at his own expense. On November 28, 2000, Plaintiff voluntarily resigned, Plaintiff puts forth that McKenzie reneged on the agreement. During the course of his employment with Defendant, Plaintiff previously received promotions and some favorable performance evaluations. Thus, Plaintiff contends, his demotion arose due to age discrimination.
Plaintiff states that "Defendant terminated Plaintiff Bush in November of 2002" (Pl.'s Br. in Resp. to Def.'s Mot. for Summ. J. at 6) (emphasis added), and additionally in a separate pleading Plaintiff states that "Defendant terminated Plaintiff Bush in November of 2000" (Pl.'s Resp. to Def.'s Reply Br. to Pl.'s Resp. to Def.'s Mot. for Summ. J, at 8) (emphasis added); however, the summary judgment evidence shows that Plaintiff was demoted on November 27, 2000, and then voluntarily resigned on November 28, 2000 ( See Bush Dep. at 102, ll. 7-11, 16-20; McKenzie Aff. ¶¶ 7-8; Pirkle Aff. ¶ 10.).
Defendant's stated reason for Plaintiff's demotion was abusive management style and poor job performance. The store that Plaintiff directed had one of the highest employee turnover rates, making it one of the "worst stores for employee turnover" for the years 1999 and 2000. The high turnover rate was attributed to Plaintiff's "poor management style." Defendant also asserts that it had received complaints about Plaintiff from Plaintiff's subordinates. In addition, on the Wednesday prior to Thanksgiving 2000, Defendant's Chief Operating Officer, Bert Short ("Short"), visited Plaintiff's store and found its inventories to be out of stock on a number of items. Defendant contends that Plaintiff's inability to maintain proper inventories of items during a "key sales season" led Defendant to believe that he possessed poor management skills and was unable to properly direct the Vernon store.
Defendant argues that uncontroverted evidence shows that it has met its burden of proof that it had legitimate, non-discriminatory reasons for its actions toward Plaintiff, i.e., that Plaintiff was demoted because of his abusive management style which led to unacceptable turnover at his store, coupled with his inability to manage large inventory during key sales periods. Defendant contends that Plaintiff has failed to produce any evidence of pretext. Plaintiff responds that there are, at a minimum, fact issues as to whether the Defendant's stated reasons for demotion and termination of Plaintiff are true or credible, thus requiring denial of Defendant's Motion.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotes omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R. CIV.P.56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
III. DISCUSSION
Plaintiff's suit against Defendant is brought under 29 U.S.C. § 623(a). Section 623 creates a private right of action against employers who engage in unlawful employment practices. It provides:It shall be unlawful for an employer —
(1) to fail or refuse to hire or 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;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.29 U.S.C. § 623 (2000).
Following the recent opinion in Desert Palace, Inc. d/b/a Caesars Palace Hotel Casino v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003), a recent Fifth Circuit decision has modified the proper approach to analyzing an ADEA discrimination case, stating it as follows:
[T]he plaintiff must still demonstrate a prima facie case of discrimination; the defendant must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons for its conduct, and another `motivating factor is the plaintiff's protected characteristic (mixed-motive[s] alternative).'"Rachid v. Jack in the Box, Inc., 2004 WL 1427046 * 5 (5th Cir., June 25, 2004). Plaintiff's argument presumes that he has chosen to proceed under the pretext alternative.
In order to establish a prima facie case of discrimination, a plaintiff must prove that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced with a person who is not a member of the protected class. See Pegram v. Honeywell, 361 F.3d 272, 281 (5th Cir. 2004); Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). Proof of a prima facie case raises an inference of discrimination and, in the absence of further evidence, creates a mandatory presumption in favor of the plaintiff. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 528, 113 S. Ct. 2742, 2758, 125 L. Ed. 2d 407 (1993). However, once an employer meets its burden of production to put forward a legitimate, nondiscriminatory reason for its adverse employment action, the presumption provided by the prima facie case "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 10, 101 S. Ct. 1089, 1095 n. 10, 67 L. Ed. 2d 207 (1981).
Defendant has not disputed Plaintiff's prima facie case. Rather, the dispute here arises with regard to the credibility of Defendant's stated reasons for Plaintiff's demotion, and whether those reasons were legitimate and non-discriminatory or whether they were simply a pretext for discrimination. Defendant has asserted that it demoted Plaintiff for (1) his abusive management style; which led to (2) unacceptable turnover at his store; coupled with (3) his inability to manage large inventory during key sales periods. In support of its reasons for Plaintiff's demotion, Defendant provides evidence that Plaintiff's store had a 106% employee turnover rate in 1999 and a 103% rate in 2000 ( See Pirkle Aff. ¶¶ 8-9, Attach. 9-10), making it one of the "five worst stores for employee turnover" for the year 1999 and one of the worst again in 2000. ( See id. at ¶¶ 8-9). Defendant's Vice President of Human Resources attributed the high turnover rate to Plaintiff's "abusive" and "poor management style." ( See id. at ¶¶ 8, 10.) In addition, Defendant provides summary judgment evidence in the form of an affidavit from McKenzie that he had received complaints about Plaintiff's abusive and poor management style from Plaintiff's subordinates ( see McKenzie Aff. ¶¶ 4-6), and includes affidavits of some of those subordinates in support of its contention, ( see App. to Def's. Mot. for Summ. J., Ex. 5-8).
In support of its articulated reason that Plaintiff was unable to manage large inventory during key sales periods, Defendant cites an incident that occurred during the Thanksgiving season of 2000. The Wednesday prior to Thanksgiving, Defendant's Chief Operating Officer, Bert Short ("Short"), visited Plaintiff's store and found its inventories to be out of stock on a number of items. Defendant contends that Plaintiff's inability to maintain proper inventories of items during a "key sales season" led Defendant to believe that he possessed poor management skills and was unable to properly direct Defendant's store in Vernon. ( See McKenzie Aff. ¶ 3).
Defendant further contends that it is entitled to the "same actor" inference of no discrimination because the same person both hired and was involved in adverse employment action against Plaintiff. Under the same actor defense, there is an inference that "where the same person does the hiring and firing of an individual, the firing was not likely to have been a result of improper discriminatory motive." Tellepsen Pipeline Servs. Co. v. Nat'l Labor Relations Bd., 320 F.3d 554, 570 (5th Cir. 2000). Plaintiff argues that the same actor presumption "can be overcome where there is change in circumstances between the time of hiring and firing," citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n. 16 (5th Cir. 2000). However, in Russell, the issue of who had actually hired the plaintiff was not uncontested, see id., whereas in the present case McKenzie was indisputably the same person who hired and demoted Plaintiff. Further, Plaintiff has neither alleged nor presented any evidence of a change of circumstance between the time he was hired and was demoted.
Defendant having met its burden of producing a legitimate, nondiscriminatory reason for demoting Plaintiff, and evidence of the same, the burden now shifts back to Plaintiff to produce evidence that would be sufficient to persuade a jury that United's proffered legitimate nondiscriminatory reason is a pretext for discrimination against him because of his protected status. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000). In order to survive summary judgment, Plaintiff is required to offer proof to rebut each of the defendant's articulated reasons. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).
A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered reason is "unworthy of credence." Id. Furthermore, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. See St. Mary's, 509 U.S. at 524. It is not enough simply to disbelieve the employer's proffered nondiscriminatory reason. See id. at 519. The plaintiff must provide "sufficient evidence to find that the employer's asserted justification is false." Russell, 235 F.3d at 223 (quoting Reeves, 530 U.S. at 2109). "An employer is entitled to judgment as a matter of law on this ultimate question `if the evidence taken as a whole would not allow a jury to infer that the actual reason for the [employer's decision] was discriminatory.'" Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir. 2000) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc)).
Plaintiff contends that Defendant's articulated reason that he was demoted for his abusive management style is not true or credible because "the opposing evidence . . . presents a view that the person who utilized `abusive tactics' was Mr. David McKenzie." (Bush Aff. ¶¶ 5, 6). However, Plaintiff's evidence offered to rebut Defendant's reason does not even attempt to meet Defendant's articulated reason head-on. Plaintiff's contention that McKenzie was abusive does not negate Defendant's claim that Plaintiff was demoted because Plaintiff was an abusive manager. Plaintiff's purported evidence does not create a genuine issue of fact regarding his own management practices.
Plaintiff's Affidavit cites the following examples: "[McKenzie] would come in your store and he — [McKenzie] is a big man. He would grab you . . . on the shoulder blade. He would put his thumb through your shoulder blade. He would say, `How does that feel, old man?' . . . or call you names . . . He called me an asshole. He called Don [Greenroy] an asshole." [Bush Dep. at 50]. "[McKenzie] used the `F' word quite frequently." [Bush Dep. at 51]. "David [McKenzie] told [a produce department manager,] . . . [`]If I ever catch this produce department looking as bad as it is now, I'm going to stick this 13-size foot up your ass and then I'm going to fire your ass.[']" ( Id. at 55).
Not only does Plaintiff's attempt to portray McKenzie as the abusive one fail to rebut Defendant's evidence of Plaintiff's abusive practices, Plaintiff also alleges that McKenzie abused him by not sticking to an agreement he thought they had and that this was the reason he "bowed his neck and opposed Mr. McKenzie," eventually leaving to go to work for a competitor. (Pl.'s Resp. at 5). Clearly this statement, while not evidence per se, weakens whatever inferences Plaintiff would have a fact-finder draw from any evidence purporting to show that pretext or discriminatory animus based on age was behind McKenzie's decision to demote him.
With regard to Defendant's additional articulated reasons, Plaintiff states only that "[t]he deposition excerpts do not establish that the alleged `high turnover' or `failure to manage inventories', arguments, were substantiated." [Pl.'s Resp. at 8]. Fed.R.Civ.P. 56(e) "requires . . . the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)). "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Malcara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).
Plaintiff does not identify what specific evidence supports his claim that United's asserted reason for demoting him for unacceptable employee turnover and inability to manage large inventory during key periods is false, other than directing the Court to "the deposition excerpts," which consist of sixteen exhibits comprising 311 pages. On this basis alone, the Court would be justified in crediting Defendant's evidence and determining that Plaintiff has created no disputed issue of fact. Nonetheless, the Court has sifted through the record in search of evidence to support Plaintiff's opposition to summary judgment. The Court's perusal of the evidence unearths no summary judgment evidence to dispute Defendant's affidavit and attached statistical reports from Pirkle substantiating high turnover and poor management. Plaintiff merely disputes Defendant's assessment of his performance. "The Fifth Circuit has held that "[m]erely disputing [an employer's] assessment of [an employee's] performance will not create an issue of fact," Sandstad v. CB Richard Ellis Corp., 309 F.3d 893 (5th Cir. 2002).
Plaintiff provides no evidence of Defendant's discriminatory intent and practice other than his conclusory statements and subjective belief. An employee's mere subjective belief that he has been the subject of discrimination, unsupported by any specific factual evidence, is insufficient to rebut the employer's evidence of legitimate, nondiscriminatory reasons for its actions. Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000); see also Lowery v. Univ. of Houston, 82 F. Supp. 2d 689, 696 (S.D. Tex. 2000) ("Speculation and belief are insufficient to create a fact issue as to pretext, and pretext cannot be established by mere `conclusory statements of a plaintiff who feels [that he] has been discriminated against'") (quoting E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984)).
When questioned on various examples that Plaintiff had provided as evidence of discrimination by Defendant, Plaintiff's statements manifest the conclusory nature of his beliefs. Examples include: "I just felt like if an older store manager had [harassment] charged against him . . . I just believe that he wouldn't be around" (Bush Dep. at 65); "I think they did [Charles Jackson] wrong" ( Id. at 57); "I think they did [Edwin Douglas Petross] wrong" ( Id.); "I think [McKenzie] was discriminating against a lot of older guys . . . it seemed like" ( Id. at 55).
Consequently, Plaintiff's evidence fails to rebut Defendant's reason for demoting him based on his abusive management. He has further failed to produce or identify any specific evidence in the record and articulate the precise manner in which that evidence supports his claim that Defendant's other reasons, based on unacceptable employee turnover and inability to manage large inventory during key periods, are pretextual. Because Plaintiff has failed to produce evidence rebutting each of Defendant's articulated reasons, as he is required to do, he has failed to establish pretext by showing that United's proffered reason is "unworthy of credence."
Nevertheless, Plaintiff still may use oral statements exhibiting discriminatory animus in order to demonstrate pretext. Laxton v. Gap, Inc., 333 F.3d 572, 583 (5th Cir. 2003). Plaintiff produces evidence that McKenzie referred to him on occasion as an "old man" or "an old fart." [Jackson Aff. at 99-100]. He also states that McKenzie asked him at one time how many years he had been in the grocery business and asked him his age. [Bush Aff. at 53]. Plaintiff produces deposition testimony that one time McKenzie told another employee to replace an employee "because she was getting too old" and she "couldn't cut the mustard too much anymore." [Jackson Aff. at 55]. Although a jury is permitted to infer discriminatory animus from age-related comments, Laxton v. Gap, Inc., 333 F.3d at 583, nevertheless, in an employment discrimination action, stray remarks are probative of discriminatory intent only if they are coupled with other evidence of pretext, Palasota v. Haggar Clothing Company, 342 F.3d 569, 577 (5th Cir. 2003). As the Court has determined above that Plaintiff has failed to provide any other evidence establishing a pretext, any oral remarks by Defendant are the Plaintiff's only evidence. Accordingly, the Court determines that the remarks are not probative that Defendant's reasons are pretextual.
Plaintiff attempts to produce statistical evidence of discrimination, in the form of a list created by Charles Jackson, regarding age-protected individuals who were demoted/terminated and subsequently replaced by younger individuals. Although "[s]tatistical evidence can be utilized by an individual disparate treatment plaintiff to help rebut the employer's non-discriminatory explanation, more than statistics are usually necessary to rebut an employer's strong showing of a legitimate, non-discriminatory reason for discharging a particular employee." Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (internal citation omitted). It is noteworthy that, when deposed, Jackson stated he had no personal knowledge, aside from stray remarks, of any discrimination against Plaintiff. [Jackson Dep. at 99-100].
Of course, in the context of an employment discrimination suit with its shifting burdens of proof and production, the nonmovant should be provided a meaningful opportunity to respond to a motion for summary judgment. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 593-94 (11th Cir. 1987). As a general rule, "when the defendant has offered evidence of a legitimate, nondiscriminatory reason for its employment decision, the plaintiff should not be denied the opportunity to submit additional evidence of pretext after seeing the defendant's evidence of justification." Id. at 594; see also Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985) (noting that until the movant's supporting affidavits were filed, the nonmovant could not know what facts she needed to controvert).
Ignoring entirely the issue of the reliability of Plaintiff's purported statistical evidence of age discrimination, the Court simply notes that nothing prevented Plaintiff from producing this evidence in conjunction with his Response. Although the Court granted leave to both parties to file reply briefs, the purpose of those briefs was not for the introduction of additional evidence, but to respond with additional argument to evidence already presented. The Court is not required to, nor will it, permit an endless game of back and forth with regard to evidence once summary judgment is appropriate. Indeed, were the Court to consider this evidence, Defendant would need an opportunity to reply to the evidence to challenge its reliability or even admissibility. Therefore, the Court will not consider Plaintiff's statistical evidence.
Neither are the remarks helpful as additional evidence of discrimination to shore up Plaintiff's pretextual case once the presumption of discrimination provided by the prima facie case has dropped away under the McDonnell Douglas framework. Subsequent to the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., repudiating the "pretext-plus" approach, a plaintiff is no longer required to produce additional evidence of discrimination beyond his prima facie case and a showing of pretext. Reeves, 530 U.S. 133, 146, 120 S.Ct. 2097, 2108, 147 L. Ed. 2d 145 (2000). However, such additional evidence may be necessary to shore up Plaintiff's case once the prima facie presumption has disappeared, if Plaintiff's showing of pretext is particularly weak. See id. at 148 (acknowledging instances where "the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."); see also Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir. 2000) (quoting Reeves). Here, as the Court has previously determined, Plaintiff has created no issue of fact, much less a weak one, regarding Defendant's reasons.
Lastly, although the Court's analysis thus far has presumed that Plaintiff has chosen to proceed under the pretext alternative, the Court must address Plaintiff's argument that he need only "establish that age played a role in his demotion or termination, not that age was the sole reason for the demotion and/or termination," citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc). This argument is based in the mixed-motive alternative, which assumes the truth of an employer's reason while maintaining that sufficient evidence exists that an discriminatory animus was also a motivating factor in the adverse employment decision. See Rachid, 2004 WL 1427046 at *3 (holding further that mixed-motive analysis applies to ADEA cases). A plaintiff is not precluded from proceeding under both frameworks. See Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n. 12, 109 S. Ct. 1775, 1787 n. 12, 104 L. Ed. 2d 268 (1989). In order to afford Plaintiff every opportunity to present evidence to avoid summary judgment, the Court will analyze his evidence under this framework as well.
Since the Supreme Court's recent decision in Desert Palace v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003), a plaintiff is no longer required to produce direct evidence of discriminatory animus but may offer circumstantial evidence as well. Id. at 100-01. However, the evidence a plaintiff does produce, whether direct or circumstantial, must be "sufficient for a jury to conclude, by a preponderance of the evidence, that [a prohibited characteristic] was a motivating factor for any employment practice." Id. at 101. As this Court has previously noted, Plaintiff has produced no summary judgment evidence of discrimination other than purported oral statements. When a remark is presented as evidence of discrimination apart from the McDonnell Douglas framework, the four-part test articulated in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), is still applied, although it is no longer applied to remarks introduced as additional evidence of discrimination to establish pretext. Laxton, 333 F.3d at 583 n. 4. Under the four-part test, "remarks may serve as sufficient evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue. Brown, 82 F.3d at 655. The oral statements in Plaintiff's evidence, some of which he specifically cites and some he doesn't, satisfy the first and third factors. However, Plaintiff has presented no evidence that the remarks were made proximately to his demotion nor, more importantly, that they were related to the adverse employment decision. The oral statements surely are not direct evidence of discriminatory animus. See Mooney v. Aramco, 54 F.3d 1207, 1218 (5th Cir. 1995) (holding that supervisor's statements about replacing employee with "someone younger and cheaper," that "it must of [sic] been your age," that company was "going to get rid of the older employees with the higher salaries," were not direct evidence of age discrimination). Furthermore, nothing inherent in the remarks themselves indicates that they were in any way related to Plaintiff's demotion, and they are not sufficient to infer discriminatory animus. Consequently, Plaintiff has failed to produce evidence of a genuine issue of material fact that is sufficient under any framework to permit a jury to find for him on the ultimate issue of discrimination.
IV. CONCLUSION
For the foregoing reasons, the Court determines that Defendant is entitled to summary judgment as a matter of law on all Plaintiff's claims. Therefore, this Court GRANTS Defendant's Motion for Summary Judgment. All other pending motions are DENIED as moot.SO ORDERED.