IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30614 Summary Calendar

BILL ROBERTSON,

Plaintiff-Appellant-Cross-Appellee,

versus

SEARS, ROEBUCK & COMPANY,

Defendant-Appellee-Cross-Appellant.

Appeal from the United States District Court for the Western District of Louisiana (98-CV-1033)

February 9, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff Bill Robertson was store manager for the Sears store

in Lake Charles, Louisiana. Although he had a generally good

record of almost thirty-four years of service with defendant Sears,

Roebuck & Co. (“Sears”), he was discharged from his employment on

May 2, 1997 at the age of fifty-five. Sears cited a record of

complaints about mistreatment of subordinates and violation of

company accident and inventory policies over the preceding year.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. After his discharge, Sears continued to use Robertson’s name and

signature in promotional mailings that identified him as the

manager of the Lake Charles store. Sears took no action to correct

this error until mid-November, 1997.

On May 1, 1998, Robertson filed suit against Sears in

Louisiana state court. Sears later removed. After a bench trial,

the district court rejected Robertson’s claims under the federal

Age Discrimination in Employment Act1 (“ADEA”) and Louisiana ADEA.2

It awarded Robertson $2,000 in damages for his claim that the

unauthorized use of his name and signature violated his right to

privacy. It rejected Robertson’s claims under the Louisiana Unfair

Trade Practices and Consumer Protection Law3 and the Louisiana

doctrine of abuse of right, also alleging misuse of his name and

signature. Robertson appealed, and Sears cross-appealed.

We affirm.

I

Robertson challenges the district court’s ruling on the ADEA

claim on three grounds: the court erred in finding there was no

basis to infer age discrimination from the Sears 1993 Early

Retirement Incentive Program; the court erred in finding that the

proffered reasons for terminating Robertson were not pretext for a

1

et seq. (2000). 2 La. Rev. Stat. § 23:311 et seq. (2000). 3 La. Rev. Stat. § 51:1401 et seq. (2000).

2 prohibited motive; and the court erred in rejecting Robertson’s

claim that similarly situated employees were given preferential

treatment.

Robertson argues that the 1993 ERIP should have been

sufficient to create a prima facie case of age discrimination

because the plan was not truly voluntary. This argument is

irrelevant to this appeal, however, because the district found, and

Sears does not contest, that Robertson established a prima facie

case of age discrimination. Instead, the issue in this appeal is

whether the district court clearly erred in finding that Sears’s

proffered non-discriminatory reasons for firing Robertson were not

pretextual.

Although Robertson points this court to evidence from which an

inference of pretext could be drawn, he fails to address the

evidence that Sears presented to substantiate its claim that it had

legitimate reasons for firing him. This case involved both

conflicting testimony and conflicting inferences from testimony.

Crediting one witness over another, and drawing reasonable

inferences from the testimony, is the province of the finder of

fact.4 Robertson has identified no clear error in the district

court’s findings.5

4 See Fed. R. Civ. P. 52(a) (2000); Anderson v. Bessemer City,

(1985). 5 We note that Robertson’s attempts to point at similarly situated employees also fails. The only individuals that Robertson

3 II

Sears argues that the district court’s finding that Sears

invaded Robertson’s privacy should be reversed. It argues that

because its unauthorized use of his name was unintentional, there

was no actionable invasion of privacy. In the alternative, it

argues that because Robertson did not complain to Sears before

filing this lawsuit, Robertson has shown no interest in privacy in

the use of his name; thus, its use of his name was not

unreasonable. Robertson argues that the district court’s ruling

awarding him damages for Sears’s use of his name in a promotional

mailing should be affirmed. He argues that the district court was

correct in finding an invasion of privacy, but he also argues that

Sears’s actions violated the Louisiana Unfair Trade Practices and

Consumer Protection Law and constituted an abuse of right. We

address these arguments in turn.

A

Robertson alleges that Sears invaded his privacy by

appropriating his name for the use and benefit of Sears. Sears

argues that since the district court found Sears merely negligent

in the use of Robertson’s name, there was no intentional

appropriation, and thus no tort. But conscious decision to

identified as similarly situated were loss prevention managers at other stores. The district court correctly held that employees in different positions with different supervisors are not similarly situated. Their responsibilities and conduct must be “nearly identical.” See Wyvill v. United Companies Life Ins. Co.,

(5th Cir. 2000).

4 appropriate a name is not necessary. Louisiana courts have held

that “[a]n actionable invasion of privacy occurs only when the

defendant’s conduct is unreasonable and seriously interferes with

the plaintiff’s privacy interest. For an invasion to be

actionable, it is not necessary that there be malicious intent on

the part of the defendant.”6 Actions taken in good faith that

unreasonably invade a person’s privacy create liability for

invasion of privacy under Louisiana law. Louisiana courts allow

plaintiffs to recover for invasion of privacy even when the

defendant believed its actions were justified7 or was unaware that

privacy rights were being infringed.8

Sears also argues that its actions were not unreasonable. The

district court found that Sears continued to use Robertson’s name

for more than five months after he was fired; that Sears had no

legitimate interest in using his name after firing him; and that

Robertson suffered humiliation from use of his name. These

findings justify the conclusion that Sears acted unreasonably.

That Robertson did not complain to Sears at the time of the

mailings does not make Sears’s continued use of his name

6 Jaubert v. Crowley Post-Signal, Inc.,

(La. 1979). 7 See Lucas v. Ludwig,

(La. App. 4th Cir. 1975). 8 See Lambert v. Dow Chemical Co.,

(La. App. 1st Cir. 1968). The Lambert court noted that the trial court had found that the defendant acted in “good faith.”

.

5 reasonable. Describing a case similar to the instant case, a

Louisiana Court of Appeals has noted that the invasion of privacy

was serious in a case “where 150,000 photography advertising

postcards were mailed across the state with the unauthorized

photograph of the plaintiff on them.”9 In that case, there was no

mention of the plaintiff complaining before suing the defendant,

and even though the defendant argued that the unauthorized use of

the photograph was a mistake, it conceded liability and the court

affirmed the award of damages.10

B

The Louisiana Unfair Trade Practices and Consumer Protection

Law creates a private cause of action for “[a]ny person who suffers

any ascertainable loss of money or movable property.”11 Even if we

assume that invasion of an employee’s privacy is actionable under

this law, Robertson lost no money or movable property as a result

of Sears’s use of his name. Thus, Robertson cannot recover under

this law.

C

Robertson argues that an act constitutes an abuse of right

when “the predominant motive for it was to cause harm . . . [or the

9 See Slocum v. Sears Roebuck & Co.,

(La. App. 3d Cir. 1989), citing Olan Mills, Inc. of Texas v. Dodd,

(1962). 10 Olan Mills,

. 11 La. Rev. Stat. § 51:1409 (2000).

6 act] is against moral rules, good faith, or elementary fairness.”12

The district court found that Sears did not intend to harm

Robertson, but that Sears’s use of his name was negligent.

Robertson does not challenge these findings. Given these findings,

Sears’s actions fail to meet the criteria cited by Robertson.13

III

For the foregoing reasons the judgment of the district court

is AFFIRMED in all respects.

12 Hemmans v. State Farm Ins. Co.,

(La. App. 4th Cir. 1995). Hemmans noted that the doctrine of abuse of right had not been applied by Louisiana courts since 1976. See

13 Nor do we find any basis for finding the other Hemmans criteria applicable to this case.

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