UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60451

THERESA ANN GATES,

Plaintiff - Appellant,

VERSUS

FORREST GENERAL HOSPITAL; VICKI FERNICOLA PEVSNER, Individually and Officially

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of Mississippi (97-CV-201)

September 24, 1999 Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

PER CURIAM:*

Theresa Gates appeals the district court’s grant of summary

judgment for the defendants dismissing with prejudice her claims

under the Age Discrimination Employment Act (ADEA) and under

for deprivations of First Amendment (free speech) and

Fourteenth Amendment (liberty and property interests) protections.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 The claims arise from alleged adverse employment actions taken by

the defendant employer Forrest General Hospital and the defendant

supervisor Vicki Pevsner.

Having fully reviewed the briefs and the record and having

heard oral argument by the parties, we affirm for substantially the

reasons expressed by the district court in its memorandum opinion

and order dated May 11, 1998, except for several elements with

which we disagree that do not amount to reversible error.

With respect to the ADEA claims, in order to establish a prima

facie case of age discrimination, Gates must demonstrate that she

(1) was discharged; (2) was qualified for the position; (3) was

within the protected age class -- over 40 -- at the time of

discharge; and (4) was replaced by a younger person, or a person

outside the protected age class, or otherwise was discharged

because of her age. See Stults v. Conoco, Inc.,

, 656

n.2 (5th Cir. 1996).

First, appellant’s age discrimination claim that she was

discharged in May 1996 from her position as Education Coordinator

is without merit, as the district court properly found. Because

only a small part of her duties as Education Coordinator were

assigned to another employee already performing other duties as

Therapy Coordinator, appellant cannot be considered as having been

replaced by another employee. See Barnes v. GenCorp Inc.,

(6th Cir.), cert. denied,

(1990)(a person

is not replaced when another employee is assigned to perform the

2 plaintiff’s duties in addition to other duties).

Second, regarding the ADEA claim premised upon appellant’s

alleged discharge as full-time Outreach Coordinator, we differ with

the trial court and find that appellant, through her own deposition

testimony regarding her acceptance of an offer of that position in

May 1996 and her expressed willingness to work year around in that

position, has produced sufficient competent summary judgment

evidence to establish a prima facie case, albeit controverted by

deposition testimony of the defendants, of age discrimination

relative to her discharge from that position in September 1996: (1)

Gates was discharged; (2) she was qualified for the position; (3)

she was within the protected class at the time of discharge (over

40 years of age); and (4) she was replaced (i) by someone outside

the protected class and (ii) by someone who was younger. See

Stults,

n.2. However, we agree with the district

court that Gates has failed to produce sufficient evidence from

which a reasonable jury could conclude that appellees’ proffered

legitimate and nondiscriminatory reasons for the discharge (i.e.

that the replacement worker was more qualified by experience and by

education, would cost less money to employ, and was happy to work

summers) were mere pretext. In the record presented for summary

judgment purposes, Gates testified to a single statement made to

her by Pevsner to the effect that “you would make too much money if

I let you work twelve months.” Gates also testified to her own

conclusion that Pevsner “had hired someone younger at a lower

3 salary to replace me.”2 This evidence was not sufficient within

the context of this case to create a reasonable inference that age

was a determinative reason for the employment decision.3

at

657 (citing Rhodes v. Guiberson Oil Tools,

(5th

Cir. 1996) (en banc)). For example, seven of nine Outreach

Coordinators employed by Forrest General at the time of the

employment action were within the protected class; Gates had been

offered other full-time and part-time employment opportunities;

and, Gates continued to work full-time through November 1996 and

part-time through June 1997. Moreover, employer decisions

predicated upon salary considerations are not indicative of age

discrimination. Armedariz v. Pinkerton Tobacco Co.,

(5th Cir. 1995). Gates has failed to produce evidence from

which it may be reasonably inferred that the defendants’ proffered

reasons were mere pretext.

Regarding appellant’s First Amendment claim, we disagree with

the district court that Gates’s criticism of hospital co-employees

for patient abuse and sexual misbehavior was necessarily

2 Gates seeks to rely on her testimony quoted in her “record excerpts” to show that Pevsner said she could “hire a younger person for less money.” Gates’s testimony to this effect, however, is not part of the summary judgment record. 3 This was the only evidence of age discrimination attributed by Gates to Pevsner. Because age-related remarks are sufficient evidence of age discrimination only if uttered by the individual with authority over the employment decision at issue, See Brown v. CSC Logic, Inc.,

(5th Cir. 1996), age-related statements by co-employees other than Pevsner, the supervising authority with control over personnel decisions such as hiring, firing, transfers, etc., are not relevant.

4 unprotected because it had not been made publicly or to the news

media. However, even if it were assumed that her expressions were

protected, Gates must also produce reasonably probative evidence

that her speech caused the retaliatory employment decision about

which she complains. See Jones v. Collins,

(5th Cir. 1998). Gates failed in this respect. Given the temporal

remoteness of the “speech” (1994) from the “constructive discharge”

(June 1997), as well as the intervening superlative personnel

evaluations and offers of employment in various capacities, a

reasonable trier of fact could not find a causal link between the

two events. The same is true even if the May 1996 alleged

discharge as Education Coordinator or the September 1996 alleged

discharge as Outreach Coordinator are considered as the end points

for causation analysis purposes. The expression at issue was too

remote from the employment decisions complained of to support a

reasonable inference of causation.

For the foregoing reasons, the district court grant of summary

judgment in favor of appellees is AFFIRMED.

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