Darrell Ward v. Gray Television Group, Inc. ( 2019 )


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  •      Case: 19-50255      Document: 00515238026         Page: 1    Date Filed: 12/16/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-50255                   December 16, 2019
    Summary Calendar
    Lyle W. Cayce
    Clerk
    DARRELL WARD,
    Plaintiff – Appellant,
    v.
    GRAY TELEVISION GROUP, INCORPORATED, doing business as KOSA,
    Defendant - Appellee,
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:16-CV-404
    Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
    PER CURIAM: *
    Darrell Ward appeals the entry of summary judgment on his age-
    discrimination claim. Ward worked on and off as a TV weatherman in Midland,
    Texas for thirty years. In 2012, Gray Television Group’s Midland TV station
    (“CBS 7”) hired Ward and agreed to a three-year contract that expired on June
    30, 2015. Ward alleges that on his second day on the job Jose Gaona, CBS 7’s
    news director, told him to dye his gray hair black. Three years later, Ward’s
    contract expired. CBS 7 refused to renew it.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 19-50255     Document: 00515238026     Page: 2   Date Filed: 12/16/2019
    No. 19-50255
    CBS 7 instead hired Tom Tefertiller. A 2015 market study showed
    Tefertiller rated favorably amongst Midland weathercasters. And an earlier
    2012 study showed Tefertiller ranked highest amongst Midland TV viewers.
    By contrast, Ward ranked lowest. Believing that Tefertiller was “the weather
    guy” and that bringing him on would be an “upgrade,” CBS 7 hired him.
    Ward sued, claiming violations of the federal Age Discrimination in
    Employment Act and Texas state law. The district court granted summary
    judgment for CBS 7. We review de novo. Laxton v. Gap, Inc., 
    333 F.3d 572
    , 578
    (5th Cir. 2003).
    We begin with his federal claim. Ward must show that his age was the
    “but for” cause of the nonrenewal of his contract. Gross v. FBL Fin. Servs., Inc.,
    
    557 U.S. 167
    , 176 (2009). Since Ward relies on circumstantial evidence, we
    apply the burden-shifting framework of McDonnell-Douglas Corp. v. Green,
    
    411 U.S. 792
    (1973). First, a plaintiff must set out a prima facie case of
    discrimination. Second, the employer must provide a legitimate, non-
    discriminatory explanation. Berquist v. Wash. Mut. Bank, 
    500 F.3d 344
    , 349
    (5th Cir. 2007). Third, the plaintiff must show “the employer’s explanation is
    false or unworthy of credence.” 
    Laxton, 333 F.3d at 578
    .
    The parties do not contest Ward’s prima facie case. Thus, we only review
    whether Ward raises “a genuine issue of material fact regarding the evidence
    presented to support [CBS 7’s] legitimate, non-discriminatory reason.”
    
    Berquist, 500 F.3d at 356
    . An employer’s “subjective assessment” can be
    legitimate as long as an employer provides a “clear and reasonably specific
    basis” for it. See Alvarado v. Tex. Rangers, 
    492 F.3d 605
    , 616–17 (5th Cir.
    2007).
    Here, Ward has not met his burden to establish a fact dispute regarding
    CBS 7’s legitimate reason. CBS 7 pointed to Midland TV market studies and
    their belief that Tefertiller was “the weather guy” to improve ratings. See
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    No. 19-50255
    Mayberry v. Vought Aircraft Co., 
    55 F.3d 1086
    , 1091 (5th Cir. 1995) (“[E]ven
    an incorrect belief that an employee's performance is inadequate constitutes a
    legitimate, nondiscriminatory reason.”). CBS 7’s proffered reason is sufficient.
    Next, Ward argues there’s still a genuine dispute of material fact because
    he’s shown that CBS 7’s reason was merely pretext for discrimination. Ward
    makes several arguments. He begins by arguing CBS 7 incorrectly evaluated
    his performance by preferring a replacement with a meteorology degree and by
    using flawed market data to incorrectly evaluate weathercasters in Midland.
    For support, he cites to out-of-circuit precedent. See Ryther v. KARE 11, 
    108 F.3d 832
    , 837 (8th Cir. 1997). The relevant dispute, however, is not whether
    CBS 7 made the correct evaluation in reaching their non-renewal decision, but
    whether “the decision was made with discriminatory motive.” 
    Mayberry, 55 F.3d at 1091
    . As a result, unlike Ryther, our circuit has held that “dispute[s]
    in the evidence concerning . . . job performance” are not a “sufficient basis” to
    infer an employer’s “proffered justification is unworthy of credence.” Id.; accord
    Sanstad v. CB Richard Ellis, Inc., 
    309 F.3d 893
    , 899 (5th Cir. 2002) (“Merely
    disputing Appellee’s assessment of his performance will not create an issue of
    fact.”). Moreover, to the extent Ward argues that the market data was
    purposefully biased, he has pointed to no evidence to back up this claim. See
    Bienkowski v. Am. Airlines, Inc., 
    851 F.2d 1503
    , 1508 n.6 (5th Cir. 1988)
    (“Merely casting doubt on the employer’s articulated reason does not suffice to
    meet the plaintiff ’s burden of demonstrating discriminatory intent.”).
    Ward additionally argues he’s shown pretext because CBS 7 decided not
    to renew his contract before they told him about it. But Ward has not shown
    how that delay in communicating their decision undermines CBS 7’s reason.
    See 
    Gross, 557 U.S. at 176
    ; cf. Little v. Republic Refining Co., 
    924 F.2d 93
    , 97–
    98 (5th Cir. 1991) (“[Defendant] argues persuasively that the timing of the
    justification’s preparation proves nothing.”). The delay only shows the decision
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    took time. Cf. Hernandez v. Metro. Transit Auth. of Harris Cty., 673 F. App’x
    414, 419 (5th Cir. 2016) (noting courts “decline” to be “super-personnel
    department[s]” reexamining “business decisions.” (quotation omitted)).
    Ward further argues that Gaona’s statement that “[we] would like you
    to color your hair” is enough to show pretext. But one alleged remark three
    years before Ward’s nonrenewal is insufficient to create a fact issue. See Reed
    v. Neopost USA, Inc., 
    701 F.3d 434
    , 441–42 (5th Cir. 2012) (finding “sporadic”
    remarks “untethered to specific speakers or times” to be “insufficient”); Kelly
    v. Costco Wholesale Corp., 632 F. App’x 779, 782–83 (5th Cir. 2015) (“[T]he
    court has consistently found that stray remarks are not enough to demonstrate
    discriminatory animus, and nothing indicates that [the manager’s] comment
    was anything other than a stray remark.”).
    We have carefully considered Ward’s other arguments and hold they are
    without merit.
    AFFIRMED.
    4