United States District Court, S.D. Mississippi, Southern Division
CHRISTINE D. TINGLE PLAINTIFF
MERCHANTS & MARINE BANK DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION  FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
MOTION  FOR PARTIAL SUMMARY JUDGMENT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant Merchants and Marine Bank's
Motion  for Summary Judgment and Plaintiff Christine D.
Tingle's Motion  for Summary Judgment. This suit
arises out of Plaintiff's termination from her employment
with Merchants and Marine Bank. Plaintiff asserts that she
was discharged because of her age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §§
has filed a Motion  for Summary Judgment, asking the
Court to dismiss Plaintiff's suit in its entirety.
Plaintiff has filed her own Motion  for Partial Summary
Judgment, requesting that the Court dismiss Defendant's
affirmative defense of failure to mitigate. Having considered
the parties' submissions, the record, and relevant legal
authority, the Court is of the opinion that Defendant's
Motion  for Summary Judgment should be granted and that
Plaintiff's Motion  for Partial Summary Judgment
should be denied. Plaintiff's claims should be dismissed
Christine D. Tingle (“Tingle”) was hired by
Defendant Merchants and Marine Bank (“M&M
Bank”) in 1982 to work in its Pascagoula, Mississippi,
office. See Compl.  at 2. At the time of her
September 11, 2017, termination, Tingle was employed hourly
by M&M Bank as an insurance imaging specialist in the
loan department. Pl.'s Resp. Mem.  at 1. On September
7, 2017, M&M Bank hosted a bridal shower for one of its
employees. Id. Loan department manager Lisa Adams
(“Adams”) emailed the department's employees,
including Tingle, advising them that the department would be
closing at 4:00 p.m. that day for the shower and instructing
all employees to clock out at that time. Id. at 2.
Employees used their desktop computers to record their hours
through the Bank's web-based timekeeping system.
Def.'s Mem. in Supp. of Summ. J.  at 2. It is
undisputed that Tingle did not follow Adams's
instructions and, instead, attended the bridal shower and
changed into tennis attire before clocking out at 4:30 p.m.
Id. at 4. After the bridal shower, Adams checked her
department's time records to confirm that all of her
employees had clocked out at 4:00 p.m. as directed. Pl.'s
Resp. Mem.  at 2. Once Adams learned that Tingle did not
clock out at 4:00 p.m., Adams wrote a letter to M&M
Bank's Human Resources department to report the matter.
Wolfe (“Wolfe”), M&M Bank's Human
Resources Director, received Adams's letter and asked
Tingle to meet in her office on September 11, 2017.
Id. In anticipation of the meeting, Wolfe prepared
both a final warning and a termination memorandum. Def.'s
Mem. in Supp. of Summ. J.  at 4. During the meeting Wolfe
asked Tingle why she did not clock out at 4:00 p.m. as she
was instructed. Id. Tingle initially told Wolfe that
she “just got [her] hours in” and decided to
clock out at her normal time of 4:30 p.m., despite
Adams's instructions to clock out earlier. Id.
Later in the conversation, Tingle told Wolfe that she simply
forgot about the instruction to clock out at 4:00 p.m. and
asked Wolfe if she could change her time
record. Pl.'s Resp. Mem.  at 3. Wolfe
explained that such a correction should have been made by
Tingle earlier and that presently making it would be
fraudulent, especially in light of Tingle's admission
that she intentionally disobeyed instructions. See
Def.'s Mem. in Supp. of Summ. J.  at 5; Pl.'s
Resp. Mem.  at 3. Based on their conversation, Wolfe
decided to terminate Tingle for falsifying her timecard.
Pl.'s Resp. Mem.  at 3. M&M Bank later hired
Carissa Scott, who was under the age of 40, to replace
Tingle, who was over the age of 40. Id.
filed this lawsuit on April 30, 2018, claiming that her
termination was in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621-634 (2012), and the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1001-1461 (2012). Compl.  at 1. Tingle's
ERISA claims were voluntarily dismissed with prejudice on
March 18, 2019. Order . M&M Bank then filed the
instant Motion  for Summary Judgment seeking dismissal of
Tingle's remaining ADEA claim. It argues that there is no
genuine issue of material fact and that summary judgment is
proper. Tingle opposes the Motion and has filed her own
Motion  for Partial Summary Judgment requesting that
M&M Bank's affirmative defense of failure to mitigate
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). If the movant carries this burden,
“the nonmovant must go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
rebut a properly supported motion for summary judgment, the
opposing party must show, with “significant probative
evidence, ” that there exists a genuine issue of
material fact. Hamilton v. Segue Software, Inc., 232
F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of
material fact means that evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Royal v. CCC&R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013) (quotation omitted). If the evidence
is merely colorable, or is not significantly probative,
summary judgment is appropriate. Cutting Underwater
Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d
512, 517 (5th Cir. 2012) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). In deciding
whether summary judgment is appropriate, the Court views
facts and inferences in the light most favorable to the
nonmoving party. RSR Corp. v. Int'l Ins. Co.,
612 F.3d 851, 857 (5th Cir. 2010).
Plaintiff's ADEA Claim
asserts that M&M Bank's conduct in terminating her
employment constituted intentional discrimination on the
basis of Tingle's age in violation of the ADEA. The ADEA
prohibits an employer from discharging an employee on the
basis of the employee's age. Goudeau v. National
Oilwell Varo, L.P., 793 F.3d 470, 474 (5th Cir. 2015).
“Because it is unlikely that there will be direct
evidence of an employer's thought process, ADEA claims
typically rely on circumstantial evidence evaluated under the
burden-shifting framework outlined in McDonnell Douglas
Co. v. Green.” Campbell v. Zayo Group,
L.L.C., 656 Fed.Appx. 711, 713 (2016) (internal
citations omitted); see also McDonnell Douglas Co. v.
Green, 411 U.S. 792, 802-03 (1973). Under the
McDonnell Douglas framework, the initial burden is
on the employee to establish a prima facie case of age
discrimination. Goudeau, 793 F.3d at 474. Once the
employee establishes a prima facie case, the burden shifts to
the employer to show that there was a legitimate,
nondiscriminatory reason for terminating the employee.
Id. If the employer meets this burden, the employee
must then prove that the employer's reason for
termination was pretextual. Id.
McDonnell Douglas, a plaintiff must first establish
a prima facie case of age discrimination by showing that (1)
he was discharged; (2) he was qualified for the position; (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.” Id.
(quoting Machinchick v. PB Power, Inc., 398 F.3d
345, 350 (5th Cir. 2005)). M&M Bank does not dispute that
Tingle can establish a prima facie case of discrimination