     Case: 16-30624      Document: 00514013541         Page: 1    Date Filed: 05/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-30624                              FILED
                                                                             May 31, 2017

RICHARD T. LOGAN,                                                            Lyle W. Cayce
                                                                                  Clerk
              Plaintiff–Appellant,

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-900


Before SMITH, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant      Richard     Logan     applied    for   the     position           of
Information Technology Specialist with the Federal Bureau of Prisons. When
a younger applicant was selected for the position, Logan brought this action
challenging his nonselection as a violation of the Age Discrimination in
Employment Act (“ADEA”). Because Logan is a federal employee, he filed this




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30624
suit pursuant to 29 U.S.C. § 633a(a). 1 After a bench trial, the district court
found in favor of the Defendant–Appellee and dismissed Logan’s claims with
prejudice. We AFFIRM.
                                 I. BACKGROUND
A.     Facts
       Richard Logan is currently, and was at all times relevant to this case,
employed by the Federal Bureau of Prisons (“the BOP”). Specifically, during
the events of this case, Logan was employed as a Senior Officer Specialist at
the Federal Corrections Center in Pollock, Louisiana (“FCC Pollock”). Logan
was assigned an initial twelve-month IT specialist training detail from
February 2009 until February 2010 and was given a six-month extension in
that position. While on detail, Logan performed “the jobs encompassed in the
job description of” Information Technology Specialist (“ITS”). Warden Joseph
Keffer appointed Logan to the ITS training detail in 2009 after Logan
expressed interest in making a career in the computer services field. 2 The
vacancy announcement for the training detail provided that upon a trainee’s
successful completion of the program, Warden Keffer could move the trainee
to the permanent ITS position without opening the position to other applicants.
      On February 24, 2010, the BOP announced a vacancy for the permanent
ITS position and opened the application process to all BOP employees and
“eligible DOJ Surplus and Displaced employees.” Logan timely applied for the
position. At the end of the application period, four candidates—including




      1  Logan brought this action against Eric Holder, the United States Attorney General
at the time. Since filing this lawsuit, two other Attorneys General were substituted as
defendants—first Loretta Lynch, and now Jefferson B. Sessions III. From this point forward,
we will refer to the Attorney General defendant as the Defendant–Appellee.
       2 The ITS training detail was open to all potential candidates, but Warden Keffer

ultimately selected Logan.
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                                  No. 16-30624
Logan and Dustin Crawford, the eventual selectee 3—were placed on a “Best
Qualified List.” The Best Qualified List and the applicants’ respective data
were then submitted to Warden Keffer. An applicant data report was attached
as a cover sheet to the applicant resumes and contained some basic information
about each applicant, including their dates of birth. At the time the two
candidates submitted their applications for the ITS position, Selectee Crawford
was twenty-seven years old and Logan was forty-five. Based on his review of
the applicants, Warden Keffer selected Dustin Crawford for the ITS position.
      Logan alleges that this selection was improperly made on the basis of
age. He claims that he spoke to Warden Keffer after the decision had been
made and remembers that Warden Keffer referred to Selectee Crawford as “a
young guy from Oakdale” who “had a master’s degree and worked at the
Pentagon.” Supervisor Crawford also testified that before Warden Keffer made
his selection for the full-time ITS position, he came into Supervisor Crawford’s
office “talking about an employee at Oakdale [who] was . . . [a] 27-year-old guy
[with a] master’s degree.” Supervisor Crawford noted that Warden Keffer
seemed to be “real high on” Selectee Crawford and seemed “real impressed by
the guy’s resume.” Warden Keffer denied ever referring to Selectee Crawford
as “young” or mentioning his age. Warden Keffer also testified that he could
not recall ever saying that Selectee Crawford had a master’s degree.
      During trial, Warden Keffer testified that he chose Selectee Crawford
based on his superior qualifications. Warden Keffer also noted that Selectee
Crawford was an external hire and employing him would constitute a staffing
gain, which gave him the ability to “offset 2,080 hours of overtime per year.”



      3  To distinguish between Dustin Crawford and Clift Crawford, FCC Pollock’s
computer service manager and Logan’s supervisor while on training detail, we will
hereinafter refer to the former as “Selectee Crawford” and the latter as “Supervisor
Crawford.”
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                                 No. 16-30624
Finally, Warden Keffer testified that he never looked at the applicants’ dates
of birth when making this employment decision. Logan disputes Warden
Keffer’s statements that Selectee Crawford was better qualified for the ITS
position and claims that Warden Keffer must have been aware of the
applicants’ dates of birth. In further support of his argument that he was better
qualified for the ITS position, Logan points to Supervisor Crawford’s testimony
that Logan would have been his pick for the permanent position.
B.    Procedural History
      Logan contacted the BOP Equal Employment Opportunity counselor on
August 17, 2010, to lodge an administrative complaint alleging age
discrimination in the selection process for the ITS position. On September 23,
2010, Logan received a Notice of Right to File a Discrimination Complaint from
the Equal Employment Opportunity Commission (“the EEOC”). The District
Office of the EEOC then conducted a hearing via video conference on November
17, 2011, before Administrative Law Judge Nancy Graham. Thereafter, the
EEOC denied Logan administrative relief. He then unsuccessfully appealed
the EEOC’s final order and was issued a Right to Sue letter. On May 1, 2013,
Logan filed his complaint in federal district court. The Defendant–Appellee
then filed a motion for summary judgment, which was denied.
      On March 22, 2016, District Judge Dee D. Drell held a one-day bench
trial and ultimately issued a ruling that Logan had failed to meet his burden
of proof in establishing age discrimination under the ADEA. The court then
entered judgment and dismissed Logan’s claims with prejudice. Logan timely
appealed.
                              II. DISCUSSION
A.    Standard of Review
      “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Bd. of
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Trs. New Orleans Emp’rs Int’l Longshoremen’s Ass’n v. Gabriel, Roeder, Smith
& Co., 529 F.3d 506, 509 (5th Cir. 2008) (quoting Water Craft Mgmt. LLC v.
Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006)). “A finding is clearly
erroneous if it is without substantial evidence to support it, the court
misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.” Id. This Court
will only set aside a district court’s findings of fact when “left with the definite
and firm conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); accord Gabriel, 529 F.3d at 509.
B.    Analysis
      The ADEA generally prohibits employers from engaging in age
discrimination. 29 U.S.C. §§ 621–634. Separate provisions of the statute
govern age discrimination with respect to private- and public-sector employees.
See 29 U.S.C. § 623 (private employees); 29 U.S.C. § 633a (public employees).
As to federal employees, the ADEA provides that “[a]ll personnel actions
affecting employees or applicants for employment who are at least 40 years of
age . . . shall be made free from any discrimination based on age.” 29 U.S.C.
§ 633a(a). This Court has not yet determined whether a but-for or motivating
factor causation standard should apply to a federal employee’s ADEA claim.
See Leal v. McHugh, 731 F.3d 405, 412 (5th Cir. 2013) (declining to determine
the proper causation standard because the appellants’ complaint stated a claim
for relief under the heightened but-for standard). Because we find that the
district court did not err in determining that Logan presented insufficient
evidence of causation under either standard, however, we need not decide the
appropriate standard in this case.
      Here, the district court first determined that Warden Keffer’s testimony
that he never referred to Selectee Crawford as “young” or a “twenty-seven year
old” was more credible than Supervisor Crawford’s and Logan’s testimony to
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                                  No. 16-30624
the contrary. The district court also found credible Warden Keffer’s testimony
that he did not look at the applicants’ dates of birth while reviewing the
applications of those who made the Best Qualified List. Accordingly, the court
concluded that Logan failed to satisfy his burden of demonstrating either that
he would have been chosen for the ITS position but for his age or that age was
even a motivating factor in the choice.
      Logan argues that Warden Keffer’s alleged remarks about Selectee
Crawford’s youth, in combination with his own superior qualifications for the
ITS position, show that Warden Keffer’s decision to hire Selectee Crawford
over Logan must have been impermissibly based on age. He states that it was
“manifest error for the trial court to reject [Supervisor Crawford’s and Logan’s]
testimony based solely on Keffer’s self-serving denial.”
      Given that “[t]his Court defers to the trier of fact in resolving conflicts
requiring credibility determinations,” Galvan v. Cockrell, 293 F.3d 760, 764
(5th Cir. 2002), Logan has provided no basis for this Court to hold that the
district court improperly credited Warden Keffer’s testimony over Logan’s and
Supervisor Crawford’s. The district court even provided a reasoned basis for
doing so: it noted that Logan and Supervisor Crawford both were
“unconvincing” and gave “vague” testimony regarding these alleged
conversations, whereas “Warden Keffer was certain that the alleged remarks
were never made.” This characterization appears accurate on a review of the
trial transcript. Accordingly, we defer to the district court’s determination that
Warden Keffer did not make statements regarding Selectee Crawford’s youth
to either Logan or Supervisor Crawford. Likewise, there is nothing in the
record that suggests the district court committed clear error when it found
credible Warden Keffer’s testimony that he did not look at the applicants’ dates
of birth when he reviewed applications for the ITS position. Thus, we also defer
to the district court’s credibility determination on this point.
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                                        No. 16-30624
       Moreover, Logan does not point to any evidence showing that the district
court erred in concluding that neither applicant was particularly better
qualified than the other. Although Logan technically had more experience
doing the work required in the full-time ITS position due to his eighteen
months in the training detail, Selectee Crawford had better education
credentials: Selectee Crawford’s bachelor’s degree in math and physics
qualified him for the job while Logan’s associate’s degree did not. Warden
Keffer testified that the training detail was the only reason Logan qualified for
the full-time ITS position in the first place. Logan also had received a
“Certificate of Achievement” in appreciation of his exceptional performance
and dedication while completing the ITS detail. But Selectee Crawford
apparently received a glowing recommendation from Warden Joe Young,
whom Warden Keffer trusted and respected. 4 Finally, both Logan and Selectee
Crawford had some experience working in IT—Logan during the ITS detail
and while he was earning his associate’s degree, and Selectee Crawford during
his time with the Navy.
       In sum, we find that the district court did not commit clear error in
crediting Warden Keffer’s testimony, and that Logan has not presented
evidence that he was better-qualified than Selectee Crawford for the ITS
position. Accordingly, we hold that Logan has failed to present sufficient
evidence of a causal link between age and his nonselection for the ITS position.
                                    III. CONCLUSION
           For the reasons stated above, we AFFIRM the district court’s dismissal
of Logan’s ADEA claim.


       4Logan argues that Warden Keffer violated the Merit Systems Principles, 5 U.S.C.
§§ 2301(b)(1), 2302(b), by improperly relying on Warden Young’s recommendation of Selectee
Crawford. Because this argument was not raised before the district court, we find it waived.
See Pluet v. Frasier, 355 F.3d 381, 385 (5th Cir. 2004) (“We will not disturb the district court’s
judgment based upon an argument presented for the first time on appeal.”).
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