United States District Court, W.D. Texas, Austin Division
YOUNG H. KIM, Plaintiff,
HOSPIRA, INC., Defendant.
PITMAN UNITED STATES DISTRICT JUDGE
the Court in the above-styled cause is Defendant Hospira,
Inc.'s Motion for Summary Judgment, (Dkt. 21), and
Plaintiff Young H. Kim's response thereto. (Dkt.
Having considered the parties' submissions, the factual
record, and the relevant law, the Court finds that the motion
should be granted.
case involves alleged age and national-origin discrimination
in employment. Plaintiff was an employee of Defendant
Hospira, Inc. (“Hospira”) until his employment
was terminated in May 2015. Plaintiff is Korean-American and
was sixty-nine years old at the time of his termination.
Though not entirely clear, Plaintiff's principal
allegations appear to be that he was wrongly blamed for
mistakes made by someone else at his work. Management at
Hospira then allegedly gave him a “final written
warning” for the errors despite insufficiently
investigating who committed them. On two later occasions,
Plaintiff was sent home early by managers after they again
accused him of making mistakes. On the second such occasion,
he was instructed not to return to work until requested by
Hospira. It appears he was not asked to return to work before
his employment was terminated on or around May 15, 2015.
Plaintiff alleges that the real reasons for his termination
were his age and national origin, in violation of federal law
prohibiting age and national-origin discrimination in
filed its motion for summary judgment on May 4, 2017. It
argues that Plaintiff lacks evidence to establish a prima
facie case of discrimination and that he also lacks
evidence suggesting that Hospira's reasons for his
terminations were pretextual. Plaintiff responded on May 17,
2017, generally denying certain arguments put forth by
Hospira. Plaintiff attached no evidence to his filing.
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the movant shows there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254 (1986). “A fact issue is
‘material' if its resolution could affect the
outcome of the action.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[T]he moving party may [also]
meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case.”
Boudreaux v. Swift Transp. Co., 402 F.3d 536,
544(5th Cir. 2005). The burden then shifts to the nonmoving
party to establish the existence of a genuine issue for
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87(1986); Wise v. E.I.
Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.
1995). After the non-movant has been given the opportunity to
raise a genuine factual issue, if no reasonable juror could
find for the non-movant, summary judgment will be granted.
Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 175 (5th Cir. 2000). The court will view the summary
judgment evidence in the light most favorable to the
non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th
cases like the present one, where a plaintiff relies on
circumstantial evidence to substantiate an employment
discrimination claim, courts employ the burden-shifting
framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). Under
this framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination.
Machinchick v. PB Power, Inc., 389 F.3d 345, 350
(5th Cir. 2005). The elements of the plaintiff's
prima facie case may vary depending on the
circumstances. Reed v. Neopost USA, Inc., 701 F.3d
434, 439 (5th Cir. 2012). Once the plaintiff makes this
initial showing, the burden of production shifts to the
employer to show that it had a legitimate and
non-discriminatory reason for the adverse employment action.
Id. The burden then shifts back to the plaintiff to
make an ultimate showing of discrimination by establishing
either (1) that the employer's stated reason was a
pretext for discrimination, or (2) that the employer's
reason, while true, was only one reason for the adverse
action, with discrimination remaining a “motivating
factor.” Black v. Pan Am. Labs., L.L.C., 646
F.3d 254, 259 (5th Cir. 2011).
argues that Plaintiff has no evidence to establish a
prima facie case of discrimination or that its
legitimate, non-discriminatory reason for terminating
Plaintiff's employment was pretextual. The Court will
consider each of Plaintiff's two claims in turn.
a prima facie showing of discrimination in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621
et seq., the plaintiff must show: (1) that he was
discharged; (2) he was qualified for the position at issue;
(3) he was within the protected class at the time of
discharge; and (4) he was either (i) replaced by someone
outside the protected class; (ii) replaced by someone
younger, or (iii) otherwise discharged because of his age.
Machinchick, 398 F.3d at 350.
asserts that Plaintiff has no evidence to substantiate the
fourth element. Plaintiff has not alleged-or provided
evidence to substantiate-that he was replaced by someone
younger or otherwise outside the protected class. In fact, he
has suggested that he is unaware of Hospira's hiring
practices after his termination. (See Kim Dep., Dkt.
21-2, at 135:20-23). Additionally, Hospira points to portions
of Plaintiff's deposition in which he asserts that he was
treated less favorably than younger coworkers but disclaims
knowledge of whether their disciplinary histories were
similar to his own. (See Id. at 88:9-89:19).
Plaintiff did not respond to this point in ...