REVISED NOVEMBER 5, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-10808

KENNETH D. SANDSTAD,

Plaintiff-Appellant,

VERSUS

CB RICHARD ELLIS, INC.,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas October 28, 2002

Before DUHÉ, DEMOSS, and CLEMENT, Circuit Judges.

DUHÉ, Circuit Judge:

Plaintiff-Appellant Kenneth Sandstad appeals from the district

court’s order granting Defendant-Appellee C.B. Richard Ellis, Inc.

summary judgment on Sandstad’s Age Discrimination in Employment Act

claim. Because Appellant has not produced evidence sufficient to

create an issue for the jury as to pretext, we AFFIRM.

I. BACKGROUND Sandstad (“Appellant”) began his career with C.B. Richard

Ellis (“Appellee” or the “Company”), a real estate services

company, as sales manager of the Minneapolis office in 1974. Over

the next 16 years he was promoted to Vice President and Resident

Manager of the Minneapolis office, First Vice President and

Resident Manager of the North Dallas office, and South Central

Regional Manager of the Brokerage Business Unit.

The Brokerage Business Unit was organized in three divisions,

and in 1990, Appellant became Central Division Manager. He reported

directly to then President of Brokerage Services Gary Beban

(“Beban”) until the end of 1994, when his Division was eliminated

and he became Senior Executive Vice President of Institutional

Services. This was also an upper management position, and

Appellant reported to Dick Clotfelter (“Clotfelter”). In late

1995, Clotfelter gave Appellant a poor performance review,

questioning his management and noting his failure to focus on

essential tasks. In 1996, Appellant returned to the Brokerage

Business Unit as Eastern Division Manager, again reporting to

Beban.

Beginning in 1996, the Company designed and implemented a

Long-Term Leadership Orientation Program (the “Plan”) to integrate

younger employees into senior management. A 1997 memo issued by

then CEO James Didion(“Dideon”) described the Plan as one to

“identify 30 to 50 younger managers and management candidates to

serve as a pool of talent for promotion to senior management over

2 the next 5+ years, ultimately replacing senior management.” Brett

White, who eventually replaced Gary Beban as President of Brokerage

Services and who terminated Appellant, was a participant of this

program.

Appellee became a publicly traded company in late 1996.

Appellee prepared question-and-answer literature for road shows

held in anticipation of the public offering.1 The literature

described the Company’s plan to integrate younger employees into

management. During the road shows, stock analysts remarked to

Company representatives that there was “too much grey hair” in

senior management. Among the representatives who heard these

comments was Walter Stafford, senior manager and General Counsel

for the Company. Stafford told other senior managers about the

remarks and stated that something would have to be done to remedy

the analysts’ perception. Stafford was among the managers who

later decided to fire Appellant.

In 1997, Beban moved from President of Brokerage Services to

President of Corporate Services. Appellant was in line to fill the

vacancy left by Beban; however, CEO James Didioninstead selected

Brett White, who was 37 years old at the time he was promoted.

Beban told Appellant that Didionhad decided to “skip a generation”

in selecting Beban’s replacement.

1 “road show. A series of presentations to investors describing an upcoming issue of securities. A road show is designed to drum up interest in the issue among potential investors.” DAVID L. SCOTT, WALL STREET WORDS 326 (Revised ed. 1997)

3 In early 1998 the Brokerage Business Unit was reorganized from

three divisions into nine regions. Appellant was assigned the lead

management role in the South Central Region. Soon thereafter, two

managers who reported directly to Appellant registered their

frustration with Appellant’s management. In July 1998, White, in

his role as President of Brokerage Services, gave Appellant’s

management of the Dallas market a negative review. The next month,

Nina Petty (“Petty”), a manager who reported directly to Appellant,

filed a formal written complaint of gender discrimination against

Appellant.

Appellee hired Rogge Dunn (“Dunn”) as outside counsel to

investigate Petty’s complaint. Dunn interviewed Appellant, Petty,

and other employees in Appellant’s region, and compiled a report

that included summaries of the interviews he conducted. Dunn

reported that employees complained about Appellant’s conduct and

management style generally. His own impression of Appellant was

that Appellant was a “bully,” was condescending, and was not

credible during his interview. Dunn concluded that while he

thought Appellant had not discriminated against Petty, Appellant’s

actions with regard to Petty were nonetheless inappropriate and

placed Appellee at substantial risk of a jury verdict.

Walter Stafford, after meeting with senior managers Ray Wirta

and James Dideon, recommended Appellant’s discharge to White.

White conferred briefly with the Company’s legal department and

discharged Appellant shortly thereafter. White told Appellant that

4 the reasons were poor performance and lost confidence in his

leadership. At the time, Appellant was age 52. The region under

Appellant’s direction was combined with a region managed by Jeff

Langdon, age 42.

White issued a memorandum announcing the discharge to the

employees in Appellant’s region. The memorandum described the

reason as lost confidence in Appellant’s ability to perform

following the investigation prompted by a gender discrimination

complaint lodged against Appellant.

Appellant sued under the Age Discrimination in Employment Act

and timely appealed the adverse grant of summary judgment.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo. Pratt v. City of Houston, Tex.,

(5th

Cir. 2001). Summary judgment shall be rendered when the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett,

(1986). An issue of material fact is

genuine if a reasonable jury could return a verdict for the

nonmovant. Anderson v. Liberty Lobby,

,

,

(1986). In reviewing the evidence, we

must draw all reasonable inferences in favor of the nonmoving

party, and avoid credibility determinations and weighing of the

5 evidence. Reeves v. Sanderson Plumbing Prods. Inc.,

,

,

(2000). In so doing, we

must disregard all evidence favorable to the moving party that the

jury is not required to believe. Reeves,

.

II. ANALYTICAL FRAMEWORK FOR ADEA CASES

In employment discrimination cases, a plaintiff may present

his case by direct or circumstantial evidence, or both. Russell v.

McKinney Hospital Venture,

(5th Cir. 2000). If

the plaintiff produces direct evidence that discriminatory animus

played a role in the decision at issue, the burden of persuasion

shifts to the defendant, who must prove that it would have taken

the same action regardless of discriminatory animus. Price

Waterhouse v. Hopkins,

,

,

(1989). If the plaintiff produces only

circumstantial evidence of discrimination, the burden-shifting

analysis set forth in McDonnell Douglas Corp. v. Green,

,

,

(1973) guides our

inquiry.2

The McDonnell Douglas framework first requires satisfaction of

the prima facie case, the elements of which, in the context of age

discrimination, are: (1) the plaintiff was discharged; (2) he was

qualified for the position at issue; (3) he was within the

2 This circuit applies the McDonnell Douglas rubric to both Title VII and ADEA claims. See Russell v. McKinney Hospital Venture,

, 222 n.3 (5th Cir 2000).

6 protected class; and (4) he was replaced by someone younger or

outside the protected group. Brown v. CSC Logic, Inc.

(5th Cir. 1996). Upon plaintiff’s satisfaction of the prima

facie case, the burden of production, rather than persuasion,

shifts to the defendant to proffer a legitimate nondiscriminatory

reason for its decision. McDonnell Douglas,

; Tex.

Dep’t of Cmty. Affairs v. Burdine,

,

,

(1981). If the defendant meets its burden,

the presumption of discrimination created by the prima facie case

disappears, and the plaintiff is left with the ultimate burden of

proving discrimination. St. Mary’s Honor Ctr v. Hicks,

,

,

(1993).

The plaintiff may meet its ultimate burden with evidence

tending to show that the reason offered by the defendant is a

pretext for discrimination. McDonnell Douglas,

,

. Evidence demonstrating the falsity of the

defendant’s explanation, taken together with the prima facie case,

is likely to support an inference of discrimination even without

further evidence of defendant’s true motive. Reeves,

,

. Thus, the plaintiff can survive

summary judgment by producing evidence that creates a jury issue as

to the employer’s discriminatory animus or the falsity of the

employer’s legitimate nondiscriminatory explanation.3

3 The district court quoted Grizzle v. Travelers Health Network, Inc.,

(5th Cir. 1994), for the proposition that

7 III. APPLICATION OF ANALYTICAL FRAMEWORK

Appellant urges that the district court erred in finding that

he offered no direct evidence of Appellee’s discriminatory motive

in terminating him. We agree with the district court. Direct

evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption. Mooney v.

Aramco Services Co.,

(5th Cir. 1995). Appellant

points to the Long Term Leadership Development Plan, which

endeavored to “identify...younger managers...for promotion to

senior management over the next 5+ years, ultimately replacing

senior management.” To find that the plan is evidence of age-based

animus relevant to Appellant’s termination requires the inference

that senior managers were to be fired to make room for younger

trainees, rather than being replaced as they retire, change jobs,

or are terminated for performance reasons.4 Appellant contends

that the district court erroneously failed to draw this inference

in his favor. However, Appellant’s contention is inapposite to the

the plaintiff’s burden of establishing pretext is “a heavy one indeed. It is not discharged by general avowels of belief, however sincere, that age–rather than an established adequate reason–was the real reason for the termination.” Appellant protests that the language quoted by the district court indicates that it applied the “pretext-plus” standard rejected in Reeves. Our holding does not rely on the notion of Appellant’s burden being a heavy one. In accordance with Reeves, we look only to whether a reasonable jury could find that Appellant’s evidence supports an inference of age discrimination. 4 Our discussion of the reasonableness of the required inference is reserved until we discuss whether Appellant has produced evidence allowing for the inference of pretext, infra.

8 analysis of whether evidence is direct or circumstantial. If an

inference is required for the evidence to be probative as to

Appellee’s discriminatory animus in firing Appellant, the evidence

is circumstantial, not direct.

Next, Appellant offers the remarks by stock analysts about

“too much grey hair” in Company management. This evidence cannot

demonstrate directly that Appellant was fired because of his age.

The speakers not only had no part in the decision to terminate

Appellant, they were not even employed by the Company. Gary

Beban’s “skipping a generation” comment similarly is not direct

evidence. First, Beban was not responsible for Appellant’s

termination. Second, Beban in his deposition testimony indicated

that he meant “generation” in the context of levels of management

seniority, not age. The ambiguity of the remark, as well as its

attenuation from Appellant’s termination, excludes it from the

realm of direct evidence.

Because Appellant’s case consists of circumstantial evidence,

we apply the McDonnell Douglas burden-shifting analysis. Appellee

argues that Appellant failed to make out a prima facie case because

Appellee restructured its divisions rather than replacing Appellant

per se. The region formerly under Appellant’s direction was

collapsed into a region managed by 42-year-old Jeff Langdon. As

did the district court, we will view, without deciding,

Appellant’s evidence as establishing a prima facie case. The

burden then shifts to Appellee to produce a legitimate

9 nondiscriminatory reason for terminating Appellant.

Appellee’s proffered reasons for terminating Appellant were

his management style and the risk created by his conduct toward

Nina Petty. Evidence in support of Appellant’s explanation

includes deposition testimony by the managers who fired Appellant

or took part in the decision. Appellant contends that Reeves

requires us to disregard as interested witness testimony all

testimony by managers involved in the employment decision.5 We

disagree with Appellant’s interpretation of Reeves, which would in

effect eliminate his burden to show that Appellee’s explanation is

pretextual. The burden on Appellee to produce a legitimate

nondiscriminatory reason for terminating Appellant is “one of

production, not persuasion; it can involve no credibility

assessment.” Reeves,

,

; See also

Rios v. Rossotti,

(5th Cir. 2001)(same); Futrell v.

J.I. Case,

(7th Cir. 1994)(“[I]n indirect

discrimination cases, we do not defer to jury verdicts where the

credibility of a defendant’s explanation of the discharge is at

issue simply because juries have the exclusive right to judge

5 “[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.’ Id., at 300.” Reeves v. Sanderson Plumbing Prods.,

,

,

(2000)(quoting Wright & Miller, Federal Practice and Procedure § 2529 (2d ed. 1995)).

10 credibility.”) The definition of an interested witness cannot be

so broad as to require us to disregard testimony from a company’s

agents regarding the company’s reasons for discharging an employee.

As the Seventh Circuit noted in Traylor v. Brown, et al.,

(7th Cir. 2002), to so hold would foreclose the possibility of

summary judgment for employers, who almost invariably must rely on

testimony of their agents to explain why the disputed action was

taken.

Moreover, the record reveals support other than the testimony

of senior managers for Appellee’s explanation. In Appellant’s

deposition and in a memo written by Appellant, he acknowledges

calling Nina Petty in during her maternity leave to discuss

removing her from a pure management role. Appellant admits that

he regrets writing in a memo to Petty that she was regarded as a

“mother hen.” In a memo to Brett White, Appellant concedes that

“the book” on him was that he micro-managed those who reported to

him. The record contains memoranda expressing dissatisfaction with

Appellant’s management style from managers Ran Holman and Jerry

Lumsden, both of whom reported to Appellant. The performance

review of Appellant by Brett White, written the July before

Appellant’s September termination, expresses White’s concern with

the “instability and dissatisfaction” among the management in the

Dallas market.

Also supporting Appellee’s explanation are the summaries

written by Rogge Dunn after he investigated Petty’s complaint.

11 While the summaries could not be admitted for their truth, we

consider them only for their effect on Appellee’s decision.

Appellant’s assertion that we must assess the truth of the

interview summaries to determine Appellee’s reasonableness in

relying on them does not create a fact issue as to pretext;

Appellee is entitled to be unreasonable so long as it does not act

with discriminatory animus. If Appellant intends to show that the

explanation is so unreasonable that it must be pretextual, it is

Appellant’s burden to proffer evidence creating a fact issue

regarding reasonableness. Appellant has not done so.

Given Appellee’s nondiscriminatory explanation, Appellant must

point to evidence creating an issue of fact as to the pretextual

nature of the explanation. Merely disputing Appellee’s assessment

of his performance will not create an issue of fact. Evans v. City

of Houston,

(5th Cir. 2002). The issue at the

pretext stage is whether Appellee’s reason, even if incorrect, was

the real reason for Appellant’s termination.

Thus, Appellant

must adduce evidence supporting an inference that Appellee’s motive

was age-based animus, or at the least, that Appellee’s explanation

of its motive is false.

In arguing that Appellee’s explanation is pretexutal,

Appellant points to Rogge Dunn’s conclusion that Appellant did not

discriminate against Petty. However, Appellant fails to note

Dunn’s additional conclusion that Appellee nonetheless placed the

Company at substantial risk of a jury verdict. That Appellant did

12 not discriminate against Petty is insufficient to create an issue

of fact regarding whether Appellee fired him because he posed a

risk to the Company.

Appellant argues that the oral statements we reject as direct

evidence in any event provide evidence of discrimination sufficient

to show pretext. Oral statements constitute evidence of

discrimination if they indicate age-based animus and the speaker is

principally responsible for the plaintiff’s firing. Russell v.

McKinney Hospital Venture,

(5th Cir. 2001)(citing

Reeves,

,

).6

The statements offered by Appellant fail in that the speakers

were not responsible, primarily or otherwise, for his termination.

The comment by Gary Beban that James Didionhad “skipped a

generation” in choosing Beban’s replacement could indicate age-

based animus, and we draw that inference in favor of Appellant.

However, Beban was not among the managers who made the decision to

fire Appellant. Beban’s estimation of Dideon’s decision-making

process in promoting Brett White bears no logical link to the

decision to fire Appellant.

The remarks by stock analysts that the Company had “too much

6 This court traditionally has applied the four-part test of Brown v. CSC Logic, Inc.,

(5th Cir. 1996), to workplace remarks. In Russell,a panel of this court chose not to apply the CSC Logic test, noting that its harsh application in Reeves was unacceptable to the Supreme Court. Russell, 235 F.3d at 225-26. Because the evidence offered by Appellant would produce the same result under either test, we do not reach whether the CSC Logic approach continues to be viable.

13 grey hair” in management indicate age-based animus. However, the

link between the speakers, who were not even Company employees, and

Appellant’s termination is absent. To indicate a connection

between the analysts’ remarks and his termination, Appellant points

out that Walter Stafford, one of the managers responsible for

Appellant’s firing, was audience to the comments and later

expressed concern about them. We have held that a remark may bear

a sufficient causal connection to the employment decision if the

speaker has such influence over the decision maker that his animus

properly may be imputed to the decision maker. Russell, 235 F.3d at

226-27, citing Haas v. ADVO Sys., Inc.,

, 734 n.1 (5th

Cir. 1999). These decisions are based in part on principles of

agency. Long v. Eastfield College,

(5th Cir.

1996). We have not held that the remarks of non-employees may be

imputed to the decision maker, and the statement at issue here

provides no reason to so hold today.

Appellant’s only evidence of discriminatory remarks by a

decision maker is Stafford’s testimony that White said to him, “You

old guys don’t always get it right.” Appellant omits from his

argument the portion of the exchange which places it in context:

Q: Can you recall any [remarks] specifically?

A: The specifics, no. But, again, they’re of the same type: “you

old guys don’t always get it right.”

Q: He has said that?

A: Uh-huh.

14 Q: When did you hear him say that?

A: After I told him that, “You young guys seldom get it right.”7

Viewed in context, White’s remark provides no evidence of

discriminatory animus.

The Plan likewise does not provide evidence of pretext.

Favoring Appellant, we accept that the Plan evidences a policy of

keeping older employees from advancing to senior management

positions. However, the inference that the Plan reflected a policy

to fire older managers to make room for younger managers is both

unreasonable and contradicted by independent, uncontroverted

evidence. Appellant offers the decline in mean age of senior

managers as evidence of the Company’s age-based animus. Since

implementation of the Plan, two senior managers have been fired:

Appellant and one other, whom Appellant concedes was not fired

because of his age. The record shows that younger employees have

been promoted to senior management positions. Thus, the decline in

mean age is not attributable to senior managers being fired; it is

attributable to younger employees moving into newly created senior

management positions.

Even if we infer a general animus toward older people

currently occupying senior management positions, Appellant offers

no evidence providing for a reasonable inference connecting the

Plan to his own termination. Appellant argues that the “grey hair”

7 Deposition of Walter Stafford, 6R.Plaintiff’s App.146.

15 and “generation skipping” comments tie the Plan to his termination.

The Plan was in place before the road show; thus, it could not have

been enacted in response to the “grey hair” comment. Appellant’s

argument that we should consider the Plan as being enacted in

anticipation of the comments requires an unreasonable inference,

which we are not required to make. Similarly, the “generation

skipping” comment, spoken in connection with a promotion decision

made by someone other than the speaker, can be linked to the Plan

and to Appellant’s termination only with unreasonable inferences.

We reject also Appellant’s argument that he was treated

differently from Jeff Langdon, whose management style had been the

subject of complaints from subordinates. In discrimination cases,

we compare the treatment of other employees whose conduct is

“nearly identical” to the plaintiff’s conduct and who were treated

more favorably than the plaintiff. Okoye v. Univ. of Tex. Houston

Health Sci. Ctr.,

(5th. Cir. 2001). Appellant cannot

show that Langdon’s conduct was nearly identical because no formal

complaint of gender discrimination was filed against Langdon.

Thus, as the district court concluded, Appellant’s treatment cannot

be compared with that of Langdon.

Finally, Appellant points to Appellee’s alleged lax attitude

toward sexual harassment and discrimination. Appellant’s evidence

of the Company’s attitude is no more than a list of the employees

who have made complaints and a judgment against the Company won by

one complainant. The record contains no evidence of the substance

16 of the complaints or action taken by the Company that would be

probative of the Company’s attitude toward sex discrimination. No

reasonable inference that the Company acted differently in its

response to Appellant can be drawn from evidence in the record.

Viewing the evidence as a whole and drawing all reasonable

inferences in Appellant’s favor, we find that he has created no

issue of material fact regarding the Appellee’s discriminatory

animus in terminating him. We therefore affirm the judgment of the

district court.

AFFIRMED.

17