     Case: 12-31086       Document: 00512215754         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013

                                     No. 12-31086                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



REBECCA F. DUBEA,

                                                  Plaintiff-Appellant
v.

SCHOOL BOARD OF AVOYELLES PARISH,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                       USDC No. 1:10-cv-1148-DDD-JDK


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       In this age discrimination case, Appellant Rebecca F. Dubea appeals the
district court’s grant of Appellee School Board of Avoyelles Parish’s motion for
summary judgment. We affirm the district court’s judgment.
                FACTUAL AND PROCEDURAL BACKGROUND
       Between 1979 and 1999, Rebecca Dubea worked in the Avoyelles Parish
school system as a teacher certified in Family and Consumer Science (“F&CS”)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31086

and Computer Literacy. Dubea retired from teaching in 1999. In 2008, Dubea
decided to return to teaching and, after submitting an application for a position
on June 16, 2008, she was contractually rehired to teach high school F&CS at
Marksville High School for the 2008 fall semester. At the end of the fall
semester, Dubea received a second one-semester contract to teach for the 2009
spring semester ending in May 2009. In June 2009, after her contract had
expired, Dubea sought reimbursement for the retirement contributions she had
made during the 2008–2009 school year. As part of the reimbursement process,
the School Board of Avoyelles Parish (the “Board”) certified that, as of May 22,
2009, Dubea was no longer employed with the Avoyelles Parish school system.
       After her withdrawal from the school system in June 2009, Dubea’s high
school teaching position was taken by Susan Cole, a non-retired teacher certified
in F&CS. Ms. Cole was hired by the Board based on the recommendation of
Stephen Allgood, the principal of Marksville High School during the 2008–2009
school year. In July 2009, the Board also approved the appointment of Ashley
Dubroc to teach middle school electives, including middle school F&CS, at
Marksville High School,1 although it is unclear who recommended Dubroc to the
Board. Dubroc, a recent college graduate in her 20s, was state certified under
a temporary authority to teach (“TAT”),2 but she was not certified in the electives
for which she was hired to teach.
       Dubea did not formally submit an application in 2009 for either the high
school or the middle school F&CS positions. Instead, Dubea claims that, in June
2009, Mr. Allgood asked if Dubea was interested in teaching for the 2009–2010
school year and she said she was. Dubea claims that, after she expressed


       1
       In 2009, following the Board’s consolidation of area middle schools and high schools,
Marksville High School began offering 7th and 8th grade classes.
       2
        TAT teachers must hold a college degree and have passing scores on the Praxis
Pre-Professional Skills Test reading and writing examinations. See R. at 160.

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interest in a position, Mr. Allgood asked Dubea to take part in a Marksville High
School workshop on June 19, 2009 to plan for the upcoming 2009–2010 school
year. After she attended the workshop, Dubea alleges that Allgood told Dubea
that she would receive the middle school F&CS position.
      In his deposition testimony, however, Allgood did not recall offering the
position to Dubea, nor did he recall inviting Dubea to attend the June 19
workshop. Furthermore, neither Allgood, nor his successor, Celeste Voinche,
who became principal of Marksville High School in August 2009, recommended
that the Board hire Dubea for the middle school F&CS position. The Board’s
employment policy indicates that the Superintendant of the Board “shall consult
with the principal regarding any possible selections made by the Superintendant
for hiring or placement of any teacher,” R. at 150, and, according to Board
Superintendant Dwayne Lemoine, this policy requires a candidate for hire to
secure a recommendation from a principal before the Board may hire the
candidate, R. at 148, 393–94.
      After Dubea learned that Ms. Cole and Ms. Dubroc had been hired for the
two F&CS positions, she met with Mr. Lemoine to discuss the Board’s hiring
decisions. Lemoine explained that Dubea had not been recommended for either
of the positions, but he asked her if she was still interested in employment for
the 2009–2010 school year.      Following this conversation, and allegedly at
Lemoine’s request, Ms. Voinche contacted Dubea in fall 2009 to ask if she was
interested in a position at Marksville High School teaching 7th grade English
and 10th grade Algebra. Dubea declined the position because she felt she was
not qualified to teach these subjects.
      On July 16, 2010, Dubea filed a complaint in the district court against the
Board alleging that, because of Dubea’s age, the Board selected Dubroc instead
of Dubea for the middle school F&CS position, thus violating the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.

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The Board filed a motion for summary judgment on January 13, 2012 and the
district court granted the motion on September 27, 2012. This timely appeal
followed.
                           STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo. Cannata
v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). “The court shall
grant summary judgment 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). We review the facts in the light most favorable to the
non-movant and draw all reasonable inferences in the non-movant’s favor.
Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). “Even if we do
not agree with the reasons given by the district court to support summary
judgment, we may affirm the district court’s ruling on any grounds supported by
the record.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)
(internal quotation marks omitted).
                                   ANALYSIS
      Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual . . . because of such individual’s age.” 29
U.S.C. § 623(a)(1). “To establish an ADEA claim, [a] plaintiff must prove by a
preponderance of the evidence (which may be direct or circumstantial), that age
was the ‘but-for’ cause of the challenged employer decision.” Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (internal quotation marks
omitted).
      To avoid summary judgment in age discrimination cases based on
circumstantial evidence, the plaintiff must first establish a prima facie case of
discrimination by showing “that (1) he belongs to a protected class; (2) he applied
for and was qualified for a position that was seeking applicants; (3) he was
rejected; and (4) following his rejection, another applicant not of the protected

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                                      No. 12-31086

class was hired.” Haas v. Advo Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999). The
burden then shifts to the defendant to show a legitimate, non-discriminatory
reason for the employment decision. Berquist, 500 F.3d at 349. In cases based
on direct evidence of discrimination, the burden shifts to the defendant with no
further showing by the plaintiff. Id.3 If the defendant meets his burden, the
plaintiff avoids summary judgment only by showing that the defendant’s stated
reason for the employment decision was merely a pretext for discrimination.
Patrick v. Ridge, 394 F.3d 311, 315–16 (5th Cir. 2004). It is at this third stage
that the plaintiff must demonstrate that age was the “but-for” cause of the
defendant’s employment decision, notwithstanding the defendant’s putative
non-discriminatory reason for the decision. See Reed v. Neopost USA, Inc., 701
F.3d 434, 439–40 (5th Cir. 2012).
        As in her arguments before the district court, Dubea bases her appeal
primarily on the Board’s “personnel transfer” policy. In stating the order of
preference for teachers requesting transfers from one school to another, the
transfer policy indicates that “[r]etired teachers certified outside the area of
vacancy” receive lower preference than TAT teachers without certification in any
specific area. R. at 160–61. The Board admitted in its uncontested facts that it
applies this preference scale not only to current teachers seeking transfers, but
also to new hires—a category which would include Dubea since Dubea had
withdrawn from the school system prior to her alleged re-application in June
2009.       See R. 256 (“After the employment of certified teachers, personnel
operating under a TAT were hired with retired teachers being appointed for
available positions after that.”).




        3
        Evidence is only “direct” if, accepted as true, it “proves the fact of discriminatory
animus without inference or presumption.” West v. Nabors Drilling USA, Inc., 330 F.3d 379,
384 (5th Cir. 2003) (internal quotation marks omitted).

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      Dubea claims that she was denied the middle school F&CS position
pursuant to the Board’s transfer policy. To support her claim, Dubea points to
a July 7, 2009 Board meeting—the same meeting at which the Board approved
Ms. Dubroc’s appointment—in which Superintendant Lemoine “stated that after
the employment of certified teachers, the Board appoints personnel under a
‘Temporary Authority to Teach,’ and then appoints retired teachers.” R. at 187.
Dubea also highlights Lemoine’s deposition testimony in which he stated that
“it’s valid for the school district to continue to bring in new teachers, younger
teachers” and “it’s very important for the district to continue trying to develop
and retain young teachers and new teachers in the system for longevity
purposes. For stability.” R. at 105–06. Dubea asserts that the Board, in hiring
Dubroc instead of her pursuant to this policy, violated the ADEA because the
“longevity” sought by the Board is nothing more than an “ageist preference”
based on stereotypes of retirees’ teaching ability. Br. of Pl.-Appellant 42.
      The district court rejected Dubea’s claim, finding that Dubea had not
established a prima facie case of discrimination because nothing in the record
suggested that Dubea had “sought” a position after she withdrew from the school
system in June 2009. On appeal, Dubea argues that she “actively pursued” the
middle school F&CS position, irrespective of whether she submitted a formal
application. Br. of Pl.-Appellant 38.
      We have reservations about the district court’s conclusion that Dubea
never sought a position, but we need not reach this issue, as we may affirm on
any basis supported by the record.      See Berquist, 500 F.3d at 349. Even
assuming that Dubea “applied for” the position and thereby could establish a
prima facie case, see Haas, 168 F.3d at 733, we affirm the district court’s
judgment because Dubea is unable to show that the Board’s legitimate,
non-discriminatory reason for its decision to hire Dubroc instead of Dubea was
pretextual.

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       The Board argues that its decision to hire Dubroc was based not on age,
but rather on the fact that Dubea did not secure a recommendation from a
principal before the Board approved the appointment of Dubroc on July 7, 2009.4
Dubea does not dispute that it is the Board’s policy to appoint new hires only
upon the recommendation of a principal, and she does not challenge the validity
of that policy. Instead, Dubea claims that she was offered the position by Mr.
Allgood. As noted above, this claim is not corroborated by Allgood, but even if
Allgood promised her the position, Dubea points to no evidence suggesting that
Allgood or any other principal in the Avoyelles Parish school system took the
important step of recommending Dubea to the Board. In the absence of any
evidence that the Board received a recommendation to hire her, Dubea cannot
show that, but for her age, the Board would have hired her. If the Board never
received a recommendation, it could not have considered her for the middle
school F&CS position. Thus, Dubea cannot show that age was the “but-for”
cause of the Board’s decision not to hire her, see Moss, 610 F.3d at 922, because
the Board never had an opportunity to consider Dubea at all, let alone on the
basis of her age.
       Our analysis is unaffected by the Board’s transfer policy or Lemoine’s
comments, as this evidence does not seriously undermine the Board’s legitimate
explanation for its hiring decision. Although the parties vigorously dispute
whether a policy of favoring non-retirees over retirees in order to secure
“longevity” would amount to age discrimination, there is no showing that the
Board hired Dubroc instead of Dubea pursuant to such a policy. As noted above,
lacking a recommendation from a principal, Dubea was never considered by the


       4
        In addition, the Board argues that Dubea’s poor job performance provided a legitimate
and non-discriminatory basis for the Board’s decision. Dubea claims that this reason is
pretextual since Dubea received positive job evaluations during the 2008–2009 school year.
We need not resolve this dispute, as we do not rely on Dubea’s job performance in finding that
the Board’s decision was based on a non-discriminatory reason.

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Board, and thus the Board could not have actively denied Dubea the F&CS
position pursuant to the transfer policy.
      Dubea does not clearly articulate the argument that her failure to secure
a principal’s recommendation arose directly from the Board’s transfer policy.
Dubea does, however, point out that, in his deposition testimony, Mr. Allgood
said that he was given a “directive” from Superintendant Lemoine “to try to fill
all positions with nonretire/rehire people.” R. at 614–15. Construing her
argument broadly, Dubea suggests that she was unable to secure a
recommendation because of the Board’s transfer policy, and thus her failure to
obtain a recommendation was a pretextual reason for the Board’s allegedly
age-based decision not to rehire her. Even assuming Dubea adequately raised
this claim, however, there is still no evidence specifically connecting the transfer
policy to the Board’s failure to consider Dubea for the position. Although Mr.
Allgood claimed that he hired Ms. Cole for the high school F&CS position
pursuant to the transfer policy, he denies that he hired Ms. Dubroc, and his
testimony therefore does not demonstrate that Dubroc was hired instead of
Dubea in accordance with Lemoine’s alleged directive. Lacking evidence that
she was hired pursuant to the Board’s transfer policy, Dubea cannot show that
the transfer policy, regardless of its legitimacy, was the “but-for” cause of the
Board’s employment decision. Accordingly, Dubea is unable to show that the
Board’s non-discriminatory reason for not hiring her for the middle school F&CS
position was pretextual.
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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