Reed v. Neopost USA, Inc.

• Decision Date: 13 November 2012
• Docket Number: No. 12–10104.,12–10104.
• Parties: Ronald P. REED, Plaintiff–Appellant, v. NEOPOST USA, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

701 F.3d 434

Ronald P. REED, Plaintiff–Appellant,

v.NEOPOST USA, INCORPORATED, Defendant–Appellee.

No. 12–10104.

United States Court of Appeals, Fifth Circuit.

Nov. 13, 2012.

Wilmer D. Masterson, Kilgore & Kilgore, P.L.L.C., Dallas, TX, for Plaintiff–Appellant.

Paul Gareth Nason, Robin Gooch Shaughnessy, Locke Lord, L.L.P., Dallas, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Plaintiff–Appellant Ronald Reed appeals the district court's grant of summary judgment on his age-discrimination claims under Chapter 21 of the Texas Labor Code (formerly known as the Texas Commission on Human Rights Act (the “TCHRA”)). Because Reed fails to present a genuine issue of material fact that his age was a motivating factor in his termination or that Defendant–Appellee Neopost USA, Inc. (“Neopost”) created a hostile work environment, we AFFIRM.

I.

Reed worked for Neopost for approximately five years. His position required him to cold-call companies, obtain information regarding their postage equipment, and log that information into a survey. Neopost compensated Reed based, in part, on the number of surveys that he completed each month. In addition, Neopost awarded in-kind bonuses, such as stereo systems and trips, to the employee(s) with the highest survey totals. On the heels of a contest for a cruise getaway, one of Reed's coworkers accused him of submitting falsified surveys. Neopost investigated the allegation, determined that it was meritorious, and terminated Reed's employment.¹ Reed was 60 years old at the time.

According to Reed, certain coworkers called him names like “old man,” “old fart,” “pops,” and “grandpa” at various times in the course of his employment. Reed struggled, however, to always identify who made which comment or when certain comments were made. He never reported the alleged workplace remarks to Neopost and his alleged harassers had no decision-making authority regarding his termination.

Reed filed an age-discrimination claim in Texas state court pursuant to the TCHRA and/or the Age Discrimination in Employment Act (“ADEA”).² Neopost removed the case on diversity and federal question grounds and moved for summary judgment. The district court granted Neopost's motion and entered a final judgment dismissing Reed's claims. Reed timely appealed.

II.

We review a district court's grant of summary judgment de novo. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991–92 (5th Cir.2005). Summary judgment is proper when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A panel may “affirm summary judgment on any ground supported by the record, even if it is different from that relied on by the district court.” Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir.2010) (quoting Holtzclaw v. DSC Comm'n Corp., 255 F.3d 254, 258 (5th Cir.2001)).

On appeal, Reed argues that the district court: (1) used the wrong causation standard in analyzing his termination-based age-discrimination claim under the TCHRA, and (2) erred in granting summary judgment on his hostile work environmentclaim. We address each argument in turn.

A.

The Texas Supreme Court recently described the TCHRA in an age-discrimination case, noting its parallel to federal anti-discrimination statutes:

Under the TCHRA, “an employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer ... discharges an individual or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” Section 21.051 is effectively identical to Title VII, its federal equivalent, except that Title VII does not protect against age and disability discrimination. (Those forms of discrimination are addressed in separate statutes.) Because one of the purposes of the TCHRA is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964,” we have consistently held that those analogous federal statutes and the cases interpreting them guide our reading of the TCHRA.

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex.2012) (footnotes and internal citations omitted). Where, as here, a plaintiff relies on circumstantial evidence, Texas courts apply the familiar McDonnell Douglas burden-shifting framework to age-discrimination claims under the TCHRA. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (establishing the three-part procedure for assessing a disparate-treatment claim in the absence of direct evidence of discrimination)); Hernandez v. Grey Wolf Drilling, L.P., 350 S.W.3d 281, 284 (Tex.App.—San Antonio 2011, no pet.).

Under the McDonnell Douglas analysis, a plaintiff is entitled to a “presumption of discrimination” if he can meet the “ ‘minimal’ initial burden” of establishing a prima facie case. Mission Consol., 372 S.W.3d at 633–34 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003)). “Although the precise elements of this showing will vary depending on the circumstances, the plaintiff's burden at this stage of the case ‘is not onerous.’ ” Id. (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). Upon a showing of a prima facie case, the “burden shifts to the employer to show a legitimate, nonretaliatory reason for the adverse employment action.” Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir.2011) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.2007)). If the employer meets its burden, then the burden shifts back to the plaintiff to make an ultimate showing of intentional discrimination. See Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.2005); Michael v. City of Dallas, 314 S.W.3d 687, 691 (Tex.App.—Dallas 2010, no pet.).

Here, the district court assumed, without deciding, that Reed articulated a prima facie case. Neopost responded with a legitimate nondiscriminatory reason for Reed's termination: that he falsified customer surveys. Thus, the central question facing the court was whether Reed could demonstrate a genuine issue of material fact that Neopost intentionally discriminated against him. Under the TCHRA, Reed could do so by showing “either (1) the reason stated by the employer was a pretext for discrimination, or (2) the defendant's reason, while true, was only one reason for its conduct and discrimination is another motivating factor (‘mixed motive’).” See Michael, 314 S.W.3d at 691 (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548 (Tex.App.—Dallas 2006, no pet.)); see also Black, 646 F.3d at 259–60 (stating the TCHRA standard).

Importantly, the TCHRA and the ADEA involve a different causation inquiry at the third stage of the McDonnell Douglas analysis. Under the ADEA, a plaintiff must prove that age was the “but for” cause of the challenged adverse employment action. Moss, 610 F.3d at 928 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 167, 173–80, 129 S.Ct. 2343, 174 L.Ed.2d 119). Under the TCHRA, however, a plaintiff need only show that age was a “motivating factor” in the defendant's decision. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001); see also Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607 (5th Cir.2007) (“Under the Texas statute, to establish an unlawful employment practice, [the plaintiff] need only prove that discrimination was ‘a motivating factor’ in the employer's decision, rather than a ‘but for’ cause as Title VII requires.” (internal citations omitted)).³

Reed argues that the district court wrongly applied the “but for” ADEA causation standard to his TCHRA claim. A careful review of the district court's opinion suggests otherwise. Although it resolved Reed's TCHRA claim based on the “same evidence and analysis” that it applied to Reed's ADEA claim, the district court expressly evaluated Reed's allegation that Neopost's reason for his termination was “false and pretextual and that age was a motivating factor” in Neopost's decision. But even assuming the district court applied the wrong causation standard, summary judgment is appropriate. The evidence on the record is insufficient to create a genuine issue of material fact under either the “but for” or the “motivating factor” standard. After reviewing the record, we agree with the district court's ultimate conclusion that “viewing the evidence as a whole and drawing all reasonable inferences in [Reed's] favor ... he has created no issue of material fact regarding [Neopost's] discriminatory animus in terminating him.”⁴

We note that Reed relied, in part, on allegedly discriminatory comments by his coworkers in asserting his age-discrimination claim. In evaluating federal discrimination claims, this court has distinguished between workplace comments presented as direct evidence of discrimination and those presented as additional ( i.e., circumstantial) evidence in the course of a McDonnell Douglas analysis. Where a plaintiff offers remarks as direct evidence, we apply a four-part test to determine whether they are sufficient to overcome summary judgment. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996) (holding that “[r]emarks may serve as sufficient evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.”); see also Laxton v. Gap, 333 F.3d 572, 583 n. 4 (5th Cir.2003) (noting that, in light of the...