Nelson v. TX Dept of Trans ( 2023 )

Case: 23-50328 Document: 00516973134 Page: 1 Date Filed: 11/17/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 17, 2023
No. 23-50328 Lyle W. Cayce
Summary Calendar Clerk
____________
Richard Nelson,
Plaintiff—Appellant,
versus
Texas Department of Transportation,
Defendant—Appellee,
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-34
______________________________
Before Dennis, Elrod, and Wilson, Circuit Judges.
Per Curiam: *
This is an appeal from a district court’s grant of summary judgment
to an employer in an age discrimination lawsuit. Because Plaintiff failed to
create a genuine dispute of material fact on the element of pretext, we
AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50328 Document: 00516973134 Page: 2 Date Filed: 11/17/2023
No. 23-50328
I. Factual & Procedural Background
Plaintiff Richard Nelson began working for the Texas Department of
Transportation (“Department”) in May 2015 as Division Director of the
Toll Operations Division. On November 29, 2020, Plaintiff was informed
that his position would be terminated effective November 30, 2020, because
he apparently engaged in conduct inconsistent with the Department’s
policies on workplace harassment and retaliation. With respect to workplace
harassment, the Department received complaints from its employees that
Plaintiff displayed favoritism and made comments in a misogynistic and
racist manner. With respect to retaliation, the Department received more
complaints from employees that Plaintiff retaliated against employees who
he suspected of reporting his alleged instances of workplace harassment. At
the time of his termination, Plaintiff was 67 years old and within one year of
retirement eligibility. Plaintiff claims he was wrongfully terminated by the
Department based on his age in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”) and the Texas Labor Code. At the close
of discovery, the Department filed a motion for summary judgment arguing
that Plaintiff could not create a genuine dispute of fact that the Department’s
proffered reasons for termination were a pretext for age discrimination. The
district court agreed and entered summary judgment. This appeal followed.
II. Standard of Review
“We review the grant of a motion for summary judgment de novo,
applying the same standard as the district court.” Jackson v. Cal-Western
Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing Threadgill v.
Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998)). That means
“[w]e view the evidence in the light most favorable to the non-moving
party[,] . . . avoid credibility determinations and weighing of the evidence[,]”
and only affirm a grant summary judgment when “there are no genuine issues
2
Case: 23-50328 Document: 00516973134 Page: 3 Date Filed: 11/17/2023
No. 23-50328
of material fact and the moving party is entitled to judgment as a matter of
law.” Id. (citations omitted).
III. Discussion
Under the ADEA, it is unlawful for an employer to “discharge any
individual or otherwise discriminate against any individual . . . because of
such individual’s age.” 29 U.S.C. § 623(a)(1). In a circumstantial evidence
case such as this one, we generally apply the McDonnell Douglas framework
to ADEA claims—an approach that both parties before us embrace. 1 Jackson,
602 F.3d at 378. First, the employee must establish a prima facie case of age
discrimination; second, the burden shifts to the employer to provide a
legitimate, nondiscriminatory reason for the employment decision; and third,
the burden shifts back to the employee to present evidence that the
employer’s reason was a pretext for age discrimination. See Allen v. U.S.
Postal Serv., 63 F.4th 292, 300-01 (5th Cir. 2023). Only the third step of the
McDonell Douglas framework—pretext—is at issue here.
Plaintiff attempts to create a genuine issue of material fact as to
whether the Department’s reasons for termination were pretext for age
discrimination by denying that he engaged in any workplace harassment and
by denying that he retaliated against other Department employees. But even
if we assumed that the allegations of misogyny, racism, and retaliation were
false, Plaintiff has presented no evidence that the Department did not
reasonably believe the allegations and did not in good faith act on them.
Under our caselaw, “[i]n cases [like this one where] an employer discharges
an employee based on the complaint of another employee, the issue is not the
_____________________
1
The parties do not challenge the district court’s finding that “age discrimination
claims under the Texas Labor Code are analyzed through the same burden-shifting
framework as ADEA claims,” so we likewise address both claims at the same time.
3
Case: 23-50328 Document: 00516973134 Page: 4 Date Filed: 11/17/2023
No. 23-50328
truth or falsity of the allegations but ‘whether the employer reasonably
believed the employee’s allegation and acted on it in good faith.’” Jackson,
602 F.3d at 379 (quoting Waggoner v. City of Garland, 987 F.2d 1160, 1165
(5th Cir. 1993)). In the absence of any such evidence, 2 we AFFIRM the
judgment of the district court.
_____________________
2
Plaintiff also takes issue with the district court’s finding that Plaintiff’s
declaration “includes inadmissible hearsay.” We agree with the district court that even
when considered, the declaration does not raise “a genuine issue of fact” that the
Department “impermissibly relied on the investigation results.”
4