Shumate v. Hurdle ( 2021 )

Case: 20-60784 Document: 00515727675 Page: 1 Date Filed: 02/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60784 February 1, 2021
Summary Calendar Lyle W. Cayce
Clerk
David Shumate,
Plaintiff—Appellant,
versus
Lana Hurdle, Acting Secretary, Department of Transportation,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CV-68
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
David Shumate, a civil engineer at the Federal Aviation
Administration (“FAA”), sued the Department of Transportation for age
discrimination and retaliation under the Age Discrimination in Employment
Act of 1967 (“ADEA”). 29 U.S.C. § 621. The district court dismissed most
*
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opinion should not be published and is not precedent except under the limited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. 20-60784
of Shumate’s claims on summary judgment, allowing a single retaliation
claim to proceed to trial. In his surviving claim, Shumate alleged that the
FAA did not select him as an assistant manager at its office in Memphis,
Tennessee, because he had filed an Equal Employment Opportunity
(“EEO”) complaint. After a two-day bench trial, the district court found
that the FAA did not retaliate against Shumate and dismissed Shumate’s
claim with prejudice. Aggrieved, Shumate appeals the district court’s
judgment. We AFFIRM.
“The standard of review for a bench trial is well established: findings
of fact are reviewed for clear error and legal issues are reviewed de novo.”
Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). “A
finding of fact is clearly erroneous when, although there is evidence to
support it, the reviewing court based on all the evidence is left with the
definitive and firm conviction that a mistake has been committed.” Houston
Expl. Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir. 2004)
(citation and internal quotation marks omitted). When factual findings are
based on witnesses’ credibility, “Rule 52(a) demands even greater deference
to the trial court’s findings; for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 575 (1985).
Shumate contends that the district court erred by not requiring the
Secretary to rebut his prima facie case of retaliation under the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05 (1973). But Shumate fully tried his retaliation case.
And “[o]n appellate review of a fully tried case, we do not concern ourselves
with the shifting burdens of proof that are relevant at trial.” Collins v. Baptist
Mem’l Geriatric Ctr., 937 F.2d 190, 192 (5th Cir. 1991). “Rather, we limit our
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No. 20-60784
review to the district court’s findings on the ultimate question of
[retaliation].” Id. at 192–93.
Here, the district court credited the trial testimony of Phillip Braden,
who chose not to select Shumate for the Memphis position. Braden testified
that he used the FAA’s typical hiring process, which involves two rounds of
interviews. In his second-round interview, Braden found that Shumate
appeared arrogant and did not answer the questions asked. Based on
Shumate’s answers, Braden assigned him a score of 44 out of 80, which was
average to slightly below-average. Braden further testified that he felt that
Shumate was not suited for a management position and would not be a good
fit. John Bauer and Larry Clark, who interviewed Shumate in the first round,
corroborated Braden’s poor assessment of Shumate.
Importantly, Braden repeatedly testified that Shumate’s EEO
complaint did not affect his hiring decision even though he was aware of it.
The district court found Braden sincere and credible because of his
demeanor. And based on Braden’s and other witnesses’ testimony, the
district court concluded that Shumate was not rejected for the Memphis
position because of his EEO complaint. Giving “due regard to the trial
court’s opportunity to judge the witnesses’ credibility,” we find no clear
error in this factual finding. Fed. R. Civ. P. 52(a)(6).
Finally, Shumate asks that we remand to consider possible remedies.
However, Shumate is not entitled to a remedy because he never proved an
underlying ADEA violation. 29 U.S.C. § 626(b). Accordingly, we AFFIRM
the district court’s judgment in the Secretary’s favor.
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