Smith v. AT&T Mobility Services ( 2022 )

Case: 21-20366 Document: 00516321873 Page: 1 Date Filed: 05/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 17, 2022
No. 21-20366 Lyle W. Cayce
Clerk
Terrell D. Smith,
Plaintiff—Appellant,
versus
AT&T Mobility Services, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19–CV–4911
Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.
Per Curiam:*
Terrell D. Smith brought this lawsuit against his employer, AT&T
Mobility Services, LLC, for age-based employment discrimination after
multiple failed attempts to secure a promotion. Smith’s claims are based on
three discrete failures to promote under federal and state law. The district
court found that Smith failed to exhaust his administrative remedies as to one
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
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No. 21-20366
claim, and failed to establish a prima facie case of discrimination as to the
other two claims. We affirm.
I.
Since 1999, Terrell Smith has worked as a customer service
representative (CSR), first for AT&T’s predecessor and then for AT&T. In
2018, Smith’s CSR position was transferred to another city. Faced with the
option of relocating his family or accepting a local CSR job with a significant
pay reduction, he chose the latter. He hoped to eventually be promoted to a
higher-paid customer service manager (CSM) position in the same or a
nearby facility.
Altogether, Smith alleges that he applied—either formally through
the AT&T database or informally through his supervisors—for promotions
under three requisition numbers: (1) R#1831676, for which thirteen CSM
candidates were ultimately hired; (2) R#1902620, for which fifteen CSM
candidates were ultimately hired; and (3) R#1942838, for which five CSM
candidates were ultimately hired. Smith was not promoted to any of these
positions.
During this time, Smith’s manager, Anita O’Neal, introduced Smith
and several other employees over the age of forty as “old heads” while giving
a tour of the facility. On another occasion, when Smith inquired about one
of the CSM openings, O’Neal informed Smith that she was “not going to
hire any tenured employees because” the new facility is “state of the art . . .
with the highest technology and equipment,” and she needs CSMs who are
“innovative” and capable of leading the facility “in the right direction.”
Believing he was denied the promotion due to his age, Smith, who was
then sixty years of age, filed a charge of employment discrimination with the
Equal Employment Opportunity Commission (EEOC) on March 5, 2019,
several months after AT&T filled its CSM positions under R#1831676.
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Smith selected January 28, 2019, as both the “earliest” and “latest” date of
discrimination, and described his allegations as follows:
I have applied for the Customer Service Manager position
several times but have been continuously denied. I followed
the procedures to apply for this position but have never been
granted an interview. In the last four months, five other
representatives, all younger individuals, have been promoted
from within though some have less experience and/or seniority
than I do. I was not given a valid reason as to why I was not
promoted.
The following month, during the EEOC’s investigation, Smith
informed the EEOC that AT&T had promoted six individuals to CSM
positions under R#1902620 and provided their names. Five months later,
AT&T promoted another six individuals to CSM positions under
R#1942838. Smith did not amend his charge of discrimination or file
subsequent charges to include the promotions under R#1942838. At the end
of September 2019, the EEOC terminated its investigation of Smith’s charge
and issued a Right to Sue Letter. Smith timely filed this lawsuit asserting
claims against AT&T for age discrimination under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Texas Commission
on Human Rights Act (TCHRA), Tex. Lab. Code § 21.001 et seq.
Following discovery, the district court granted AT&T’s motion for
summary judgment, finding that Smith had failed to exhaust his
administrative remedies as to R#1942838 and failed to establish a prima facie
case as to R#1831676 and R#1902620.
II.
Our court reviews a grant of summary judgment de novo, applying the
same legal standard as the district court. Jackson v. Cal-W. Packaging Corp.,
602 F.3d 374, 377 (5th Cir. 2010). Summary judgment is proper if, when
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“view[ing] the facts in the light most favorable to the non-movant” and
“draw[ing] all reasonable inferences in her favor,” “there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533
(quoting Fed. R. Civ. P. 56(a)).
Both the ADEA and TCHRA prohibit an employer from
discriminating against an employee on the basis of age. 29 U.S.C. § 621(a)(1);
41 Tex. Lab. Code § 21.001. See also Miller v. Raytheon Co., 716 F.3d 138,
144 (5th Cir. 2013). The class of individuals protected from age
discrimination is limited to those who are forty years of age or older. See 29
U.S.C. § 631(a); 41 Tex. Lab. Code § 21.101. Before bringing a claim
under the ADEA or TCHRA, a plaintiff must have exhausted his
administrative remedies by filing a charge with the EEOC. Melgar v. T.B.
Butler Pub. Co., 931 F.3d 375, 378–79 (5th Cir. 2019) (ADEA); Gorman v.
Verizon Wireless Tex., L.L.C., 753 F.3d 165, 169 (5th Cir. 2014) (TCHRA).
Upon bringing suit, “the scope of the judicial complaint is limited to the
scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.” McClain v. Lufkin Indus., Inc., 519 F.3d
264, 272 (5th Cir. 2008) (alteration in original) (cleaned up).
Both Smith and the district court present his claims of discrimination
in non-chronological order—addressing AT&T’s alleged failure to promote
under R#1942838 first, before turning next to R#1831676 and
R#1902620. We shall do the same on appeal.
A. Failure to Exhaust as to R#1942838.
Smith does not dispute that, unlike the promotions under R#1831676
and R#1902620, those made under R#1942838 occurred beyond the
timeframe specified in his EEOC charge and applicable limitations period.
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So the question now is whether that third round of promotions under
R#1942838 is properly within our scope of judicial review.
The Supreme Court has clarified that each discrete adverse
employment action, including a failure to promote, “constitutes a separate
actionable unlawful employment practice” and “starts a new clock for filing
charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114, 102 (2002). See also Pegram v. Honeywell, Inc., 361 F.3d 272, 279
(5th Cir. 2004). Therefore, plaintiffs must “file a charge within . . . 300 days
of the date of the act or lose the ability to recover for it.” Morgan, 536 U.S.
at 114.
Smith principally argues that this case is different, because his claims
pursuant to R#1942838 reasonably grew from the original charge and
involved the same failure to promote claim, decisionmaker(s), location, job
title, duties, and requirements. But the Supreme Court has held that discrete
discriminatory acts are “time barred, even when they are related to acts
alleged in timely filed charges.” Morgan, 536 U.S. at 102. See also Pegram,
361 F.3d at 279 (discrete failures to promote “are timely only where such acts
occurred within the limitations period”).
Alternatively, Smith argues that the limitations period should be
subject to equitable tolling. But this argument is forfeited on appeal because
he failed to make it before the district court. See Rollins v. Home Depot USA,
8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to
raise it in the first instance in the district court.”).
As we have said before, “[c]ourts should not condone lawsuits that
exceed the scope of EEOC exhaustion, because doing so would thwart the
administrative process and peremptorily substitute litigation for
conciliation.” McClain, 519 F.3d at 273. Consequently, we agree with the
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district court that Smith has failed to exhaust his administrative remedies as
to his failure to promote claim under R#1942838.
B. Failure to Establish a Prima Facie Case as to R#1831676 and
R#1902620.
In analyzing these two requisition numbers, the district court first
considered whether Smith had presented direct evidence of discrimination.
Finding that the comments made by Smith’s supervisor, O’Neal, did not
constitute direct evidence, it applied the McDonnell Douglas framework for
evaluating claims predicated on circumstantial evidence. Applying the same
framework, we agree with the district court that Smith has failed to
demonstrate a prima facie case as to these two requisition numbers.
Comments only constitute direct evidence of discrimination when
they are: “1) related to the protected class of persons of which the plaintiff
is a member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue.”
Rubinstein v. Administers of Tulane Educ. Fund, 218 F.3d 392, 400–01 (5th Cir.
2000). See also Jackson, 602 F.3d at 380 (same). Comments that do not
satisfy these requirements are considered “stray remarks” and are alone
insufficient to defeat a motion for summary judgment. Jackson, 602 F.3d at
380.
While we ultimately agree with the district court that neither
comment offers direct evidence of discrimination, the comment expressing
O’Neal’s refusal to hire “tenured employees” presents a closer call and
warrants further discussion. This comment was made within the relevant
timeframe, by an individual with authority over the adverse employment
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decision, 1 close in time to the complained-of adverse employment decision,
and directly pertained to the employment decision at issue. See Rubinstein,
218 F.3d at 400–01. In fact, this comment expressly identified a class of
employees whom O’Neal would not consider for the disputed employment
position. The question, however, is whether that class is defined by age or
merely tenure.
There are at least two reasons why “tenured employees” logically
appears to be a euphemism for age. For one, the CSM position is not entry-
level, but explicitly requires years of relevant managerial experience—so
disqualifying an entire class of individuals on the basis of their seniority, or
“tenure,” seems unlikely. For another, O’Neal’s proffered reason for
excluding tenured employees—that they would be less “innovative” and fail
to lead the “state of the art” facility “with the highest technology and
equipment . . . in the right direction”—has nothing to do with seniority and
everything to do with stereotypes about age.
Ultimately, however, “[d]irect evidence is evidence which, if
believed, proves the fact without inference or presumption.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). The term
“tenured” is not synonymous with age, nor is the term generally recognized
as an expression of ageism. Cf., e.g., Jones v. Robinson Prop. Group, L.P., 427
F.3d 987, 993 (5th Cir. 2005) (“[R]acial epithets undoubtably demonstrate
1
AT&T challenges this element because another employee conducted an initial
review of the applications and determined which ones to forward to O’Neal for final
consideration. This argument fails. “In determining whether the individual making the
remark had authority over the employment decision, consideration is not limited to
statements by the person who officially made the decision.” AutoZone, Inc. v. Reyes, 272
S.W.3d 588, 593 (Tex. 2008). See also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229
(5th Cir. 2000) (“Age-related remarks are appropriately taken into account . . . even if
uttered by one other than the formal decisionmaker, provided that the individual is in a
position to influence the decision.”); Rubinstein, 218 F.3d at 400–01; Williams-Pyro, Inc. v.
Barbour, 408 S.W.3d 467, 480 (Tex. App. 2013).
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racial animus.”); Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861
(5th Cir. 1993) (noting that certain terms are “universally recognized
opprobrium”). So for O’Neal’s comment to constitute direct evidence of
age discrimination, Smith would need to present evidence establishing that
O’Neal intended “tenure” to mean age—for example, by presenting
testimony from other AT&T employees demonstrating that the term
“tenured” is commonly understood to be code for “age” within the
company. Absent such evidence, we must presume that O’Neal believes that
tenured CSR employees simply possess the wrong kind of experience,
regardless of their age. We therefore agree with the district court that this
comment does not constitute direct evidence of employment discrimination.
Next we apply the McDonnell Douglas framework for analyzing
discrimination claims based on circumstantial evidence. Our court’s
precedent provides clear instruction: “In an age discrimination, failure to
promote case, the employee must demonstrate that 1) he belongs to the
protected class, 2) he applied to and was qualified for a position for which
applicants were being sought, 3) he was rejected, and 4) another applicant
not belonging to the protected class was hired.” Medina v. Ramsey Steel Co.
Inc., 238 F.3d 674, 680 (5th Cir. 2001). The district court found that Smith
is unable to establish the fourth element “[b]ecause several of the applicants
hired for R#1831676 and R#1902620 were over forty and very close in age to
Smith.” Smith does not dispute this fact, instead arguing on appeal that
these older employees were already CSMs and being transferred from other
facilities—and thus not similarly seeking a promotion. But not only did
Smith fail to raise this argument before the district court, he does not support
it with record evidence on appeal. See Benefit Recovery, Inc. v. Donelon, 521
F.3d 326, 329 (5th Cir. 2008). Accordingly, we agree with the district court
that Smith’s failure to satisfy this last element is fatal to his prima facie claims
as to R#1831676 and R#1902620.
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***
Because we find that Smith has failed to exhaust his administrative
remedies as to R#1942838 and failed to establish a prima facie case as to
R#1831676 and R#1902620, we affirm the district court’s grant of summary
judgment.
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