Simoneaux vs. New York Life Ins Co, (5th Cir. 2002)

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The district court granted summary judgment in favor of New York Life. Because there is no genuine issue of material fact, we affirm the district courtÂ’s grant of summary judgment.

I. For the last twelve of his twenty-thr ee years of employment with New York Life, Simoneaux was the managing partner of its Baton Rouge office. In 1998, the performance of the Baton Rouge office, as measured by New York Life’s “G.P.A.” rating system, fell below the company stand ard. This decline in performance was partially due to problems with the leasing of office space and the promotion of several sales personnel to different New York Life offices. New York Life requested that Simoneaux raise the “G.P.A.” of the Baton Rouge office or be placed on an individual “performance p rogram” with specific performance goals to be attained during a defined period.

The record contains several letters from New York Life to Simoneaux regarding the specific performance problems of the Baton R ouge office, including drop-offs in recruitment, retention and commissions. In August 1999, Simoneaux met separately with Michael Reeves (Reeves) and Gerald Tinsley (Ti nsley), Senior Vice President and Vice President of New York LifeÂ’s West Central Zone, to discuss the performance of the Baton Rouge office. At some point during the meeting between Tinsley and Simoneaux, Tinsley asked Simoneaux how old he was and how long he planned on working. During the meeting between Reeves and Simo neaux, Reeves placed Simoneaux on a performance plan, outlining specific personal performance goals to be me t by July 30, 1999.

Reeves told Simoneaux that a failure to complete the performance plan would result in his dismissal from employment with New York Life. Simoneaux failed to meet the performance plan goals by the deadline date. Reeves, without a request from Simoneaux, extended the deadline to the end of December 1999 and revised the performance plan goals. When Simoneaux failed to meet the revised goals in the performance plan by December 31, 1999, he was fired. His replacement as managing partner of the Baton Rouge office was a thirty-eight year old man. Simoneaux brought suit alleging violations of Louisiana§§ 1441 and 1332(a)(1). The district court granted summary judgment in favor of New York Life, and Simoneaux timely appealed the judgment to this court.

II. We review the grant of summary judgment de novo .

Bodenheimer v. PPG Indus., Inc. , 5 F.3d 955 (5 th Cir. 1993). Summary judgment is proper where there are no genuine issues of mate rial fact and the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact, the court draws all inferences in favor of the nonmoving party.

Id. Because the prohibitions on age discrimination under Louisiana law and federal law are the same, Louisiana courts look to federal law for guidance in applying the Louisiana Age Discrimination Act. L aBove v. Raftery , 802 So.2d 566, 573 (La. 2001). A plaintiff makes a prima facie case of age discrimination if he demonstrates that: (1) he was dismissed; (2) he was qualified for the position from which he was dismissed (3) he was within the protected class of individuals who are at least forty years of age; and (4) he was replaced by someone outside the protected class or someone younger or was otherwise dismissed because of his age. Fields v. J.C. Penney Co. , 968 F.2d 533, 536 (5 t h Cir. 1992). If the plaintiff makes a prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to rebut the presumption by showing, through admissible evidence, a non-discriminatory reason for the dismissal. Once a non-discriminatory reason has been shown, the presumption of discrimination dissolves and the burden is on the plaintiff to prove that the proffered non-discriminatory reason is a pretext for age discrimination. B odenheimer , 5 F.3d at 957.

Simoneaux established a prima facie case of age discrimination: he was dismissed from a position for which he is clearly qualified; he was fifty-five years old when he was dismiss ed; and, his replacement was thirty-eight years old. The burden then shifted to New York Life to show a non-discriminatory reason for SimoneauxÂ’s dismissal.

New York Life proffered substantial admissible evidence of SimoneauxÂ’s poor performance, including several letters to Simoneaux and testimony regarding the performance o f the Baton Rouge office, the institution of the performance plan and SimoneauxÂ’s admitted failure to meet the prescribed goals. This well-documented non-discriminatory reason for dismissing Simoneaux dissolved th e presumption of age discrimination and placed the burden on Simoneaux to prove that the reason given by New York Life is a pretext for age discrimination.

Whether Simoneaux raised a genuine issue of material fact as to the existence of pretext determines whether summary judgment was proper. Because we are reviewing a summary judgment, we need not determine whether Simoneaux actuall y proved that New York Life’s proff ered reasons were a pretext for age discrimination, but whether he has tendered sufficient evidence that would lead a jury to find pretext. B odenheimer , 5 F.3d at 958. He has not done so. Simoneaux does not deny his poor performance and failure to meet his individual perf ormance plan goals, but argues that his poor performance was created by New York Life as a pretext for age discrimination. “It is more than well-settled that an employee’s subjective belief that he suffered adverse employment action as a result of discrimination, without more, is not enough to survive a summary judgment motion, in the face of proof showing an adequate non-discriminatory reason.” D ouglass v. United Services Automobile Ass’n , 79 F.3d 1415 (5 th Cir. 1996) (en banc) (citations omitted).

Simoneaux alleges that New York Life intentionally caused problems with his office lease and promoted several agents from the Baton Rouge office in order to impede his performance and create a pretext for his dismissal because of his age. Although Simoneaux may believe that the promotion of some agents and the troubles in negotiating the office lease were part of an orchestrated effort by New York Life to create a pretext for age discrimination, he offers no evidence of this supposed malicious intentional conduct by New York Life other than his own speculative testimony. Without other evidence, his testimony regarding his belief that his performance was sabotaged because of his age is insufficient to support a finding of age discrimination. Simoneaux also relies on two age-relat ed comments made by Reeves and Tinsley at different times to support his assertion that his dismissal was motivated by age discrimination. “In order for an age-based comment to be probative of an employer’s discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conc lude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee.” E .E.O.C. v. Tex. Instr uments , Inc., 100 F.3d 1173, 1181 (5 th Cir. 1996). Simoneaux recalls that Reeves inquired about his age and his retirement plans during a conversation sometime in 1997 or 1998. That Reeves made this inquiry in a past conversation which was wholly unrelated to the employment action at issue does not shed any light on whether Simoneaux’s age played a role in Reeves’ decision to dismiss him. Simoneaux also offers Tinsley’s similar inquiry during their 1999 meeting as evidence of age discrimination. While closer in time to the dismissal of Simoneaux, such an inquiry is not direct and unambiguous evidence that Simoneaux’s age was a factor in Reeves’ decision to dismiss him from employment. These comments prove nothing more than an interest in Simoneaux’s future plans and, by themselves, are not sufficient to support a finding of pretext in the decision to dismiss Simoneaux.

Simoneaux failed to offer sufficient facts to support a finding of pretext in New York LifeÂ’s decision to dismiss him; therefore, he did not establish a genuine issue of material fact that would allow him to survive summary judgment.

III. Summary judgment in favor of New York Life was appropriate.

The judgment of the district court is AFFIRMED.

* Pursuant to 5 TH C IR . R. 47.5, the Cour t has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. 1 L A . R EV . S TAT . A NN . § 23:311, et seq . (West 2002)

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