“On appeal, the City argues that Harris’ failure to respond in district court to its summary judgment motion's argument about age discrimination means that the claim was abandoned. It has authority on its side.”
How later courts described this case
- “On appeal, the City argues that Harris’ failure to respond in district court to its summary judgment motion's argument about age discrimination means that the claim was abandoned. It has authority on its side.”
Written by the judges who cited it.
The opinion
Case: 20-50795 Document: 00516234504 Page: 1 Date Filed: 03/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 11, 2022
No. 20-50795 Lyle W. Cayce
Clerk
Michael Harris,
Plaintiff—Appellant,
versus
City of Schertz,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-1023
Before Southwick, Haynes, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A former city employee brought suit against the city, alleging that he
had been unlawfully terminated from his job because of his age. The district
court granted summary judgment to the city. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff Michael Harris worked for the City of Schertz, Texas for
28 years. From February 1, 2014 to June 2, 2017, Harris served as the City
Judge Haynes concurs in the result only.
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No. 20-50795
Marshal. As part of his duties, he supervised the City’s Animal Services
department. In December 2016, Shanna O’Brien, the manager of Animal
Services, contacted Harris and complained about the behavior of another
employee, David Taylor. Harris decided he would speak with Taylor to
attempt to resolve the issue and advised O’Brien to collect statements from
other employees complaining about Taylor. She did so. Taylor separately
submitted a list of concerns to Harris. Harris relayed the information to the
city’s Human Resources (“HR”) Director, Jessica Kurz, who consulted with
the Executive Director of Operations, Dudley Wait.
After a conversation with the city attorney and city manager, Kurz and
Wait decided to investigate Animal Services and told its employees that the
investigation concerned “highly inappropriate comments being made” in the
workplace. In January of 2017, the pair met with Animal Services employees,
asked them to fill out a questionnaire, and told them to contact HR if any
action was taken against them for reporting misconduct.
While no employees filed a formal complaint against Harris, some told
investigators that he was present, even participatory, when sexually and
racially inappropriate language was used in the workplace. Only O’Brien
specifically complained about Harris, doing so informally. She alleged he told
her not to go to HR with reports of misconduct. Another employee told an
investigator that Harris admitted to her that he was watching O’Brien one
day to see if she was walking to HR. At the time of the investigation, the city
had cited O’Brien for several disciplinary problems but never had cited
Harris.
In the spring of 2017, Kurz and Wait suspended and eventually
dismissed Taylor. They also reprimanded another employee. In March, the
two issued notices of complaint to O’Brien and Harris and planned to demote
them both. The basis for the complaints was the inappropriate work
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environment that both O’Brien and Harris were alleged to have fostered.
Kurz and Wait met with O’Brien to discuss the demotion. O’Brien said she
was resigning from Animal Services, then did so on May 18, 2017.
Harris was issued a second notice of complaint on May 26, 2017, this
time for allegedly placing a concealed camera at the Animal Control
Department. Consequently, the City fired him on June 2, 2017. Harris
appealed to the city manager, who upheld the termination.
Harris filed a charge of discrimination on the basis of his sex and age
with the Equal Employment Opportunity Commission on October 12, 2017.
He was issued a right-to-sue letter on July 17, 2018, and then brought suit on
October 1, 2018. Harris alleged unlawful discrimination on account of his (1)
sex in violation of Title VII and (2) age in violation of the Age Discrimination
in Employment Act (“ADEA”). The district court granted summary
judgment to the City on both claims. Harris timely appealed.
DISCUSSION
As we just summarized, Harris’s complaint alleged discrimination on
the basis of both sex and age. On appeal, Harris’s only challenge is to the
summary judgment rejection of his age-based discrimination claim. That is a
complete reversal from his approach in the district court. Harris’s briefing
opposing summary judgment made arguments solely about discrimination on
the basis of sex. Indeed, after a lengthy factual summary, Harris only legal
argument was captioned “Plaintiff’s Claim of Sex Discrimination.”
Despite the limitation of Harris’s argument in district court, that
court expressly analyzed both claims. As to sex discrimination, the district
court found that Harris did not provide evidence “that a similarly situated
employee outside his protected class was treated more favorably.” The court
then addressed age discrimination despite the City’s argument that the claim
had been abandoned by Harris’s failure to brief it. The district court found
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that Harris had failed to prove that his age was the “but for” cause of his
termination.
On appeal, the City argues that Harris’s failure to respond in district
court to its summary judgment motion’s argument about age discrimination
means that the claim was abandoned. It has authority on its side. See, e.g.,
Vela v. City of Houston, 276 F.3d 659, 679 (5th Cir. 2001). Further, Harris is
incorrect that the City must make a cross-appeal to make this argument. A
cross-appeal is needed when an appellee wishes to overturn part of a
judgment, not when it offers an alternative reason to affirm that judgment.
Domain Protection, L.L.C. v. Sea Wasp, L.L.C., 23 F.4th 529, 539 (5th Cir.
2022).
As to the effect now on appeal of the briefing default in district court,
we conclude that the decision by that court to consider the claim of age
discrimination despite an absence of briefing is consistent with our occasional
practice of considering a poorly briefed issue: “the issues-not-briefed-are-
waived rule is a prudential construct that requires the exercise of discretion.”
United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). The district
court’s consideration of age discrimination and the adequate appellate
briefing on that issue lead us to review the merits of the claim.
We review a district court’s grant of summary judgment de novo.
Midwestern Cattle Mktg., L.L.C. v. Legend Bank, N.A., 999 F.3d 970, 971 (5th
Cir. 2021). Summary judgment should be granted “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 makes it “unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
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To prevail, “a plaintiff must prove that age was the ‘but-for’ cause of the
employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
176 (2009).
Claims brought under the ADEA often involve circumstantial
evidence and are evaluated using McDonnell Douglas burden-shifting.
Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). First, a plaintiff
must establish a prima facie case by demonstrating that “(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 either i) replaced by
someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.” Rachid v. Jack in the Box, Inc., 376
F.3d 305, 309 (5th Cir. 2004) (quoting Palasota v. Haggar Clothing Co., 342
F.3d 569, 576 (5th Cir.2003)). Once a plaintiff has made this showing, the
defendant has the burden of production to show a “legitimate,
nondiscriminatory reason” for the discharge. Id. at 312. If a defendant
produces such a reason, there no longer is a presumption of discrimination;
instead, the plaintiff has the burden to demonstrate that the proffered reason
was pretextual or that, even if true, it combined with an improper motive. Id.
A plaintiff’s prima facie case, combined with evidence that the
“defendant’s explanation is unworthy of credence,” can “permit the trier of
fact to conclude that the employer unlawfully discriminated.” Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147–48 (2000).
The district court concluded that Harris established his prima facie
case for age discrimination, relying on certain comments made by Wait in his
deposition. Wait testified that Harris “had not been adequately prepared or
mentored”; he also had not been “taught to be a leader” nor “to dive into
difficult problems.” Harris also had been left to advance “on his own,” and
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that many of his promotions working for the City were the result of “being in
the right place at the right time.” Wait further testified that when Harris was
with the police department, the department’s chief stated that Harris
“struggled to engage and to learn more, and to want to do more, and to want
to engage in different levels, engage in confrontation with employees, handle
problems as opposed to try to push things off.” With the growing size of the
City, Wait testified that “a higher level of sophistication and a higher level of
leadership” was needed to “lead departments” and that Harris “had
inherited . . . more than what his scope was able to handle.”
The district court then considered the reason offered by the City for
termination. Wait stated that the City initially intended to demote Harris for
the incidents at Animal Control, but the discovery of Harris’s hidden camera,
coupled with bad publicity from the event, caused the City to terminate his
employment. The district court found that the City’s evidence was
“unworthy of credence” because it was unclear whether Harris had ordered
the camera to be hidden and because there were hidden cameras at other city
sites. Still, the district court found that Harris failed to show the “critical
but-for causation” between his age and his termination necessary to survive
summary judgment.
After our review of the evidence, we are not certain the district court
should have rejected the City’s offered reason. We do, though, agree with
the district court that no genuine dispute of material fact existed: Harris had
not been fired because of his age. Wait stated that Harris was largely
unqualified for the burgeoning responsibilities of his position, which Harris
argues would allow a fact finder to infer that meant Wait thought Harris was
old and slow. Such an inference would be pure speculation. Turmoil at
Animal Services was undisputed, supporting that Harris was not adequately
managing his duties. When comments by a decision-maker have been found
sufficiently suggestive of age bias, they have been much more age-specific
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than Wait’s reference to responsibilities being too great. See, e.g., Goudeau,
793 F.3d at 476 (referring to the plaintiff as an “old fart[]” and as someone
wearing “old man clothes”); Brown v. CSC Logic, Inc., 82 F.3d 651, 656 (5th
Cir. 1996) (referring to plaintiff as an “old goat”), abrogated on other grounds
by Reeves, 530 U.S. at 151. A reasonable factfinder would not be justified on
this record to infer that Harris was terminated because of his age.
AFFIRMED.
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