Larry Nobles v. Cardno, Incorporated

Case: 13-60483 Document: 00512471748 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60483 December 16, 2013
Summary Calendar
Lyle W. Cayce
Clerk
LARRY NOBLES,
Plaintiff - Appellant
v.
CARDNO, INCORPORATED, formerly known as ATC Group Services,
Incorporated,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:12-CV-107
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Larry Nobles brought suit against his employer, Cardno, Inc., claiming
he was subject to age discrimination. The district court granted summary
judgment to Cardno. On appeal, Nobles argues that district court should have
found a genuine issue of material fact as to whether Cardno’s reasons for his
termination were a pretext for age discrimination. We AFFIRM.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60483
BACKGROUND AND PROCEDURAL HISTORY
During the events of this case, Nobles was sixty years old, resided in
Mobile, Alabama, and was a licensed Professional Engineer. Cardno was an
engineering-consulting company with multiple branches. The office in Biloxi,
Mississippi needed a branch operations manager to organize the office and sort
out its financial troubles. Scott Vinsant, one of Cardno’s branch managers,
sought permission from Cardno’s senior vice-president Wendell Lattz to hire
an independent recruiter to find candidates for the Biloxi position. With
Lattz’s approval, Vinsant hired Herb Newman with Newman Search to find
candidates for the position. The position was advertised on CareerBuilder, and
Nobles submitted his resume. He had a phone interview with Lattz and
subsequently interviewed with Vinsant at the Biloxi office. He was offered the
job on March 25, 2010. The offer letter stated in part that, until the office was
operating better, Nobles would not be allowed to work remotely from Mobile.
Nobles began work on April 12, 2010.
After 29 days of employment, Cardno terminated Nobles. Prior to
terminating Nobles, Vinsant sent an email to Lattz outlining Nobles’ job
performance problems. Based on this email, Lattz gave Vinsant permission to
terminate Nobles, and Nobles was terminated on May 11, 2010. Tad Nelson,
who was younger than Nobles, was eventually hired by Cardno as Nobles’
replacement.
On May 6, 2010, a few days before Nobles’ termination, Lattz called Herb
Newman of Newman Search to inform him they would not be keeping Nobles
— meaning Newman would not get his recruiting fee. Later in May, after his
termination, Nobles searched CareerBuilder’s website for new employment.
He discovered an advertisement dated May 6 for a geotechnical engineer for
an undisclosed employer with the same area code as Cardno. Nobles
speculated that this advertisement from an unnamed employer was placed by
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Cardno, relying on the timing of the advertisement as well as similarities
between it and the earlier Cardno advertisement that Nobles had responded
to in March. It was this May 6 advertisement which led Nobles to believe he
had been fired because of his age. Both Lattz and Herb Newman stated that
Cardno did not place the May 6 advertisement.
In July 2010, Nobles submitted a formal charge of age discrimination
with the Equal Employment Opportunity Commission. In December 2011,
Nobles received his notice of right to sue. He filed suit in a Mississippi state
court for damages due to violations of the Age Discrimination in Employment
Act (“ADEA”). Cardno removed the suit to the United States District Court for
the Southern District of Mississippi. The district court granted Cardno’s
motion for summary judgment, concluding Nobles failed to create a genuine
issue of material fact as to whether Cardno’s proffered non-discriminatory
reasons for terminating Nobles were pretextual. Nobles timely appealed.
DISCUSSION
“We review a grant of summary judgment de novo.” McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). Summary judgment is proper if
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The ADEA provides that “[i]t shall be unlawful for an employer . . . to
discharge any individual . . . because of such individual’s age.” 29 U.S.C. §
623(a)(1). Where, as here, a plaintiff relies on circumstantial evidence, we
apply the McDonnell Douglas burden-shifting framework to a claim of age
discrimination. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004). The
plaintiff must first make a prima facie case by demonstrating: “(1) he was
discharged; (2) he was qualified for the position; (3) he was within the protected
class at the time of discharge; and (4) he was . . . replaced by someone
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younger . . . .” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
If the plaintiff establishes a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, non-discriminatory reason for the
adverse employment action. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000). If an employer then meets this burden of production, the
plaintiff must prove the proffered reasons are a pretext for age discrimination.
Bodenheimer, 5 F.3d at 957.
The district court concluded, and neither party disputes, that Nobles
made out a prima facie case of age discrimination and Cardno then articulated
legitimate, non-discriminatory reasons for terminating Nobles. At issue on
appeal is the court’s conclusion that Nobles failed to carry his burden of proving
the reasons offered by Cardno were a pretext for discrimination. Accordingly,
our discussion will be limited to consideration of whether Nobles created a
genuine issue of material fact on the pretext issue.
To satisfy his burden on pretext, Nobles may either show that a
discriminatory reason more likely motivated Cardno, or that Cardno’s
“proffered explanation is unworthy of credence.” Waggoner v. City of Garland,
Tex., 987 F.2d 1160, 1164 (5th Cir. 1993). As to the latter, Nobles must do
more than speculate; he must prove that the articulated reasons for his
termination are a pretext. Id. Mere subjective assertions, without more, are
insufficient. Id. Further, “[s]imply disputing the underlying facts of an
employer’s decision is not sufficient to create an issue of pretext.” LeMaire v.
Louisiana Dept. of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). Nobles
“must rebut each non-discriminatory . . . reason articulated by the employer.”
McCoy, 492 F.3d at 557.
I. Cardno’s articulated reasons for terminating Nobles
Vinsant offered a copy of an email sent to Lattz before terminating
Nobles detailing the various concerns he had about Nobles based on his own
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observations and the negative reports he had received from staff in the Biloxi
office. Among other things, the email stated that Nobles was already working
remotely from Mobile, had told Vinsant and others he was not that committed
to the job, and could only focus on one thing at a time. The email relayed
reports from Dana Glasscox and Jeremy Graham that Nobles stated he was
overloaded and complained about working too much. Graham and Glasscox
also reported Nobles did not interact well with clients, was getting bogged
down with details, and wasting time on simple tasks.
Lattz also stated that he independently spoke with Glasscox and
Graham who corroborated the reports that Nobles was not stepping up and
would not or could not do what was necessary to turn around the Biloxi office.
Glasscox specifically reported Nobles did not have the desire to perform at the
level required and could not multi-task or lead the office. Lattz also reported
a discussion with another employee, Leland Creel, that Nobles was not
showing the ability to address the multiple management issues confronting the
Biloxi office.
Cardno also tendered to the district court Nobles’ “Employee
Termination Form” which contained a check in the section “Unable to Meet Job
Requirements” as the basis for Nobles’ termination. The form included
comments from Vinsant regarding Nobles’ deficient job performance.
II. Nobles’ evidence of pretext
Nobles first objects that the district court improperly relied on
inadmissible hearsay in concluding Cardno had articulated a non-
discriminatory reason for terminating Nobles. Nobles contends that the
performance issues contained in Vinsant’s and Lattz’s affidavits come
primarily from reports by other employees who did not come forward
themselves to support the accusations. The reports by Nobles’ co-workers,
however, are not being offered to prove the accuracy of the reported
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information. See FED. R. EVID. 801(c)(2). The complaints from other employees
were offered only to support that Vinsant and Lattz believed he was
performing poorly. Id. When an employee is discharged based on complaints
of other employees, “the issue is not the truth or falsity of the allegation, but
‘whether the employer reasonably believed the employee’s allegation and acted
on it in good faith.’” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374,
379 (5th Cir. 2010). Nobles’ hearsay objection fails.
To the extent Nobles disputes that co-workers actually made any
complaints, he failed to present evidence that the complaints were fabricated.
See Waggoner, 987 F.2d at 1166. “[U]nsubstantiated assertions are not
competent summary judgment evidence.” Grimes v. Texas Dept. of Mental
Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996). Nobles’
conclusory statements disputing that employees made complaints are not
enough by themselves to create a fact dispute. See Ray v. Tandem Computers,
Inc., 63 F.3d 429, 435 (5th Cir. 1995).
Nobles attempts to prove Vinsant and Lattz lied about receiving negative
reports from his co-workers by alleging they lied about posting the May 6
advertisement on CareerBuilder for his replacement. Again, Nobles failed to
offer any evidence, beyond conjecture, to link Cardno with the May 6
advertisement. While the advertisement was posted on the same day Lattz
spoke with Herb Newman, both Lattz and Newman testified that the
advertisement was not placed at Cardno’s behest. Nobles’ speculation
regarding the advertisement is insufficient to create a fact issue as to whether
Cardno’s reasons for terminating Nobles were pretext for age discrimination.
See id.
Beyond challenging the admissibility or fact of the complaints made by
his co-workers, Nobles also disputes the underlying accuracy of the reports
describing him as a poor employee. In his affidavit, Nobles denied that he
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would spend all day on one report or that it took him a full day to get ready for
the financial matters conference call. He also denied that he made negative
comments about having to work too hard. “Simply disputing the underlying
facts of an employer’s decision is not sufficient to create an issue of pretext.”
Lemaire, 480 F.3d at 391. Nobles disputes that his performance was deficient,
but he does not cast doubt on Vinsant’s assertion that he perceived Nobles’
performance as deficient. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1091 (5th Cir. 1995).
As a final matter, we note that Nobles failed to show pretext as to
Cardno’s assertion that Nobles’ absence from the office and working remotely
from Mobile was a reason for his termination. Nobles must rebut each non-
discriminatory reason offered by Cardno. See McCoy, 492 F.3d at 557. His
lack of rebuttal that working remotely against Vinsant’s instructions served as
a basis for his termination is fatal to his claim.
AFFIRMED.
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