     Case: 13-40005       Document: 00512335223          Page: 1     Date Filed: 08/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                           August 8, 2013

                                     No. 13-40005                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



DONALD KILGORE,

               Plaintiff - Appellant

v.

BROOKELAND INDEPENDENT SCHOOL DISTRICT,

               Defendant - Appellee


                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No: 9:11-CV-155


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Donald Kilgore appeals the district court’s order granting defendant
Brookeland Independent School District’s motion for summary judgment on his
Age Discrimination in Employment Act (“ADEA”) claim.1 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         The district court also granted Brookeland summary judgment on Kilgore’s Texas
Labor Code claim. He does not pursue a challenge of that decision on appeal.
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                                        No. 13-40005


                            FACTS AND PROCEEDINGS
       Brookeland employed Kilgore as a bus driver from 2003 to 2006 and
again from 2009 to 2011. In spring 2011, faced with possible budget cuts,
Brookeland decided to reorganize its bus routes, which would eliminate the
need for one bus driver.2 According to Brookeland, it decided that Kilgore
would be the eliminated driver because he had the most job performance
issues.    So it did not send Kilgore a notice of reasonable assurance of
employment that spring.3 The school superintendent met with Kilgore to
inform him of the district’s decision. He explained that the bus driver position
was being eliminated due to budget cuts and, according to Kilgore, noted that
Kilgore was “eligible for retirement.” Kilgore was 72 years old at the time.
       Over the summer of 2011, the Texas Legislature passed a budget that
allowed Brookeland to retain all five bus routes. One of Brookeland’s teachers,
John Thacker, expressed an interest in the reinstated bus driver position, and
the superintendent hired him. According to the superintendent, he selected
Thacker for the bus driver position rather than contacting Kilgore because he
preferred to have a bus driver without performance issues. Thacker was 54
years old when Brookeland hired him.



       2
         At various points in the record, Brookeland inconsistently claims that it made the final
decision to eliminate the route in the spring and that it made the contingent decision to
eliminate the route if the anticipated budget cuts were implemented, but did not make a final
decision in the spring.
       3
          As Brookeland explains, a notice of reasonable assurance of employment is a letter that
a school district provides to at-will employees who work only when school is in session. Districts
send the letters near the end of the school year to employees that they anticipate employing in
the coming school year. These letters do not guarantee employment. Kilgore received such a
letter in all his years of employment by Brookeland prior to 2011, except for 2006, when he quit
his job.

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                                  No. 13-40005

      Kilgore filed suit against Brookeland in September 2011, alleging that
Brookeland discriminated against him on the basis of his age when it
terminated his employment as a bus driver, in violation of the ADEA and the
Texas Labor Code.       Following discovery, Brookeland filed a motion for
summary judgment on
both claims. The district court referred the motion to a magistrate judge, who
issued a report and recommendation finding that Kilgore did not proffer direct
evidence of discrimination and failed to rebut Brookeland’s nondiscriminatory
reason for its decision to terminate Kilgore. Kilgore filed his objections to the
report, which the district court overruled. Upon de novo review, the district
court agreed with the magistrate judge, adopting the magistrate judge’s report
and recommendation and granting Brookeland’s motion for summary
judgment.
      Kilgore appeals, arguing that the district court erred in concluding that
he presented no direct evidence of discrimination and failed to rebut
Brookeland’s proffered nondiscriminatory reason for terminating him.
                                 DISCUSSION
      We “review a district court’s grant of summary judgment de novo,
applying the same standard as did the district court.” Stults v. Conoco, Inc.,
76 F.3d 651, 654 (5th Cir. 1996). Summary judgment is appropriate if there is
no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We
view facts in the light most favorable to the non-movant and draw all
reasonable inferences in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th
Cir. 1996). But we “may affirm summary judgment on any legal ground raised
below, even if it was not the basis for the district court’s decision.” Performance
Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).

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      Kilgore first argues that the superintendent’s comment that Kilgore was
“eligible for retirement” is sufficient direct evidence to create a genuine issue
of material fact with respect to his discrimination claim. A plaintiff may prove
his discrimination claim by direct evidence or he may follow the McDonnell
Douglas framework to prove his case with indirect evidence. See Reed v.
Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). “Direct evidence of discrimination is
evidence which, if believed, would prove the existence of a fact (i.e., unlawful
discrimination) without any inferences or presumptions.” Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993); see Moss v. BMC Software, Inc., 610
F.3d 917, 929 (5th Cir. 2010) (explaining that, “for an age-based comment to be
probative of an employer’s discriminatory intent, it must be direct and
unambiguous, allowing a reasonable jury to conclude without any inferences or
presumptions that age was an impermissible factor in the decision to terminate
the employee,” and for such evidence to be sufficient to prove age
discrimination, it must be “1) age related, 2) proximate in time to the
employment decision, 3) made by an individual with authority over the
employment decision at issue, and 4) related to the employment decision at
issue”) (internal quotation marks omitted).
      We    agree    with   Brookeland       and   the   district   court   that   the
superintendent’s alleged comment that Kilgore was “eligible for retirement” is
not direct evidence from which a reasonable jury could conclude that
Brookeland terminated Kilgore because of his age. The superintendent’s
“statement simply recognized a fact concerning” Kilgore’s eligibility, “an
observation which did not imply” that his eligibility “was the reason for
discharge.” E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir.
1996). And “[t]his interpretation of the statement is consistent with the

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                                 No. 13-40005
context in which it was allegedly made,” as it was natural for the
superintendent to inform Kilgore of the benefits to which he was entitled upon
his termination. Id. Nothing in the superintendent’s comment suggests that
Kilgore was terminated because of his eligibility for retirement; therefore, the
comment is not direct evidence of discrimination. The district court did not err
in concluding that there was no genuine issue of direct evidence of age
discrimination.
      Although Kilgore did not provide direct evidence of discrimination, he
may nevertheless prove his case using the McDonnell Douglas evidentiary
framework. See Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1504 (5th Cir.
1988). Under this procedure, he must first establish a prima facie case of age
discrimination. See id. at 1504-05. The burden of production then shifts to
Brookeland to rebut the presumption of discrimination created by the prima
facie case, which it does “by articulating a legitimate, nondiscriminatory reason
for its disparate treatment” of Kilgore. Id. at 1505. If Brookeland carries its
burden, Kilgore must prove that Brookeland’s “reasons are pretexts for
unlawful discrimination either by showing that a discriminatory reason more
likely motivated” Brookeland or by showing that Brookeland’s “reason is
unworthy of credence.” Id. Kilgore “retains the burden of persuading the fact
finder that impermissible discrimination motivated the adverse employment
decision.” Id.
      To establish a prima facie case that Brookeland discriminated against
him because of his age in violation of the ADEA, Kilgore must show 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.” Bodenheimer, 5 F.3d at 957.

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                                  No. 13-40005
        Kilgore has established his prima facie case. He was discharged from his
position as a bus driver for Brookeland; he was qualified to be a bus driver; he
was 72 years old when he was discharged; and he was replaced by Thacker, who
was 54 years old.
        In response, Brookeland was required to provide a legitimate,
non-retaliatory reason for the discharge. There is some confusion here as to
when Brookeland discharged Kilgore. Brookeland inconsistently claims at
some points that it discharged him in spring 2011, when it decided not to send
Kilgore a letter of reasonable assurance, and at other points that it did not
discharge him until late summer, when it decided to rehire Thatcher rather
than Kilgore as the fifth bus driver. Brookeland, however, has articulated
legitimate, nondiscriminatory reasons for each of these decisions. It asserted
that it did not send the letter of reasonable assurance because it planned to
reduce the number of bus drivers from five to four in the face of possible budget
cuts.    A reduction in force is a legitimate, nondiscriminatory reason for
discharge. See Tex. Instruments, 100 F.3d at 1181. And it explained that it
made its decision to fill the reinstated fifth bus driver position with Thatcher
rather than Kilgore because it preferred a bus driver without job performance
issues. Performance deficiencies are also a legitimate reason for discharge. See
Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986).
        The burden thus fell on Kilgore to rebut these legitimate reasons. He has
failed to show a genuine issue of pretext with respect to either explanation. He
did not attempt to show that Brookeland’s fear of budget cuts was
unwarranted. Neither did he contend that the job performance concerns
Brookeland cited were untrue or that other bus drivers employed by
Brookeland had more numerous or serious performance issues.              He has,
therefore, not created a genuine issue that these reasons are unworthy of

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                                 No. 13-40005
credence. Furthermore, the only evidence Kilgore supplied of an age-based
motive is the superintendent’s comment concerning Kilgore’s retirement
eligibility, which, by itself, is an insufficient basis for a reasonable jury to
conclude that Kilgore’s age more likely motivated Brookeland’s decision to
discharge him than either of Brookeland’s proffered reasons. The district court
did not err when it determined that there was no genuine issue of material fact
regarding pretext.
                               CONCLUSION
      For the reasons given above, the district court’s order granting summary
judgment for Brookeland is AFFIRMED.




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