     Case: 13-60666      Document: 00512639732         Page: 1    Date Filed: 05/22/2014




                            REVISED MAY 19, 2014

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

                                    No. 13-60666
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            May 15, 2014
                                                                             Lyle W. Cayce
TERRY ANDERSON,                                                                   Clerk


                                                 Plaintiff-Appellant,
v.

TUPELO REGIONAL AIRPORT AUTHORITY,

                                                 Defendant-Appellee.



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC. No. 3:11-CV-131


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Terry Anderson (“Anderson”) appeals the district
court’s summary judgment in favor of Tupelo Regional Airport Authority
(“TRAA”) on his age discrimination claim. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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              I. FACTUAL AND PROCEDURE BACKGROUND
      TRAA hired Anderson in 2000 to serve as its Executive Director. As
Executive Director, Anderson was responsible for the operations and
maintenance of the Tupelo Regional Airport and he answered directly to
TRAA’s Board of Directors (“the Board”).       During Anderson’s tenure as
Executive Director, the airport explored the possibility of extending its
runway. In 2009, Anderson and some Board members believed the runway
extension was a positive step for TRAA while others thought more research
needed to be performed prior to moving forward with the project. Several
Board members and various members of the community were opposed to the
runway extension project, as it stood, because it required relocating an
important thoroughfare in Tupelo called West Jackson Street Extended.
      Public opposition and other logistical concerns caused the Board to place
the runway extension project on hold in November 2009. After the Board took
official action to halt the project, Anderson sent two emails to the Northeast
Mississippi Daily Journal (“Daily Journal”) in which he expressed
disagreement with the Board’s decision. In response to Anderson’s emails, a
journalist from the Daily Journal submitted several questions to Anderson
about the runway extension project’s future.      Anderson’s answers to the
questions made clear that he disagreed with the Board’s decision to halt the
project.
      Shortly thereafter, the Daily Journal published an article citing the
opinions Anderson conveyed in his emails to the journalist. Subsequent to the
article’s publication, Board members questioned Anderson about whether he
provided information to the Daily Journal that was published in the article.
Anderson denied providing the information. A Board member approached the
journalist who wrote the article and inquired as to his source for certain


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information contained therein. The journalist confirmed that Anderson was
the source and provided the Board member with copies of Anderson’s emails.
      Around the same time, Board members asked Anderson additional
questions that they believe he answered untruthfully. For example, Anderson
was asked who provided telephone service to the Tupelo Airport and he stated
that he did not know. Also, when asked whether he was represented by
counsel, Anderson said that he was not.         Board members believed that
Anderson’s claimed lack of knowledge of who provided the airport with
telephone service was either dishonest or indicative of a lack of competence.
Board members also believed that Anderson’s claim that he was not
represented by counsel was dishonest because the Board’s attorney previously
received a letter from an attorney who referred to Anderson as his client. The
culmination of these incidents resulted in the Board’s terminating Anderson
due to a “loss of confidence.” In addition to the aforementioned incidents, other
Board members claimed, inter alia, that Anderson failed to meet their
expectations with respect to keeping them abreast of certain financial
obligations.
      The Board’s dissatisfaction with Anderson’s performance was not,
however, unanimous. Two Board members provided affidavits stating that
during their time on the Board, Anderson was “highly competent and
trustworthy” and that they had no complaints about Anderson’s work
performance.       Nevertheless, a majority vote resulted in Anderson’s
termination on December 8, 2009. Anderson was 64 years old at the time of
his termination.
      After Anderson was discharged, TRAA initiated a nationwide search for
his replacement. Initially, TRAA offered the Executive Director position to a
candidate who was 46 years old, but he declined the offer for personal reasons.
Next, TRAA offered the position to a 33-year-old candidate and he accepted
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TRAA’s offer.     After learning that TRAA hired a 33-year-old as his
replacement, Anderson filed a federal civil suit alleging that he was unlawfully
terminated because of his age and in violation of his First Amendment right to
free speech.
      TRAA moved for summary judgment on both claims. With respect to the
age discrimination claim, TRAA argued that Anderson was terminated not
because of his age, but rather because of the Board’s “loss of confidence” in his
ability to adequately manage Tupelo Regional Airport. TRAA also argued that
it committed no First Amendment violation by terminating Anderson because
the speech at issue was made pursuant to his official duties and not protected
under the First Amendment. The district court granted TRAA’s motion for
summary judgment as to both claims. Anderson appeals the district court’s
judgment on his age discrimination claim. He has not appealed the district
court’s judgment with respect to his First Amendment claim. For the reasons
explained herein, we affirm.
                                 II. DISCUSSION
      A. Standard of Review
      “We review the district court’s grant of summary judgment . . . de novo,
applying the same standard” as the district court. Terrebonne Parish Sch. Bd.
v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002) (citation omitted).
Summary judgment is appropriate “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). “Although we consider the evidence
and all reasonable inferences to be drawn therefrom in the light most favorable
to the nonmovant, the nonmoving party may not rest on the mere allegations
or denials of its pleadings, but must respond by setting forth specific facts
indicating a genuine issue for trial.” Goodson v. City of Corpus Christi, 202
F.3d 730, 735 (5th Cir. 2000) (citation and internal quotation marks omitted).
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“[C]onclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010).
       B. Applicable Law
       Under the Age Discrimination in Employment Act (“ADEA”), it is
unlawful for an employer to discharge an employee because of the employee’s
age. See 29 U.S.C. § 623(a)(1).           To establish a claim under the ADEA, an
aggrieved employee “must prove, by a preponderance of the evidence, that age
was the ‘but-for’ cause of the challenged adverse employment action.” Moss v.
BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (citation omitted). “In
the absence of direct proof of discrimination, the plaintiff in an age
discrimination case must follow the three-step burden-shifting framework laid
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . and Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . .” 1 Wyvill v.
United Companies Life Ins. Co., 212 F.3d 296, 301 (5th Cir. 2000). First,
Anderson must establish a prima facie case of age discrimination by showing
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.” Machinchick v. PB
Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (citations and internal quotation
marks omitted).
       If Anderson establishes a prima facie case of age discrimination, then
TRAA must “proffer a legitimate nondiscriminatory reason for its employment



       1 We perceive no direct evidence of age discrimination in this case. “Direct evidence
is evidence that, if believed, proves the fact of discriminatory animus without inference or
presumption.” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir. 2004) (citation
and internal quotation marks omitted).
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action.” Id. If TRAA provides a legitimate nondiscriminatory reason for its
employment action, the presumption of discrimination established by
Anderson’s prima facie case disappears and Anderson must satisfy his
ultimate burden of proving intentional discrimination. Id. (citation omitted).
Anderson can meet this burden by showing that the reasons provided by TRAA
for his termination are a pretext for age discrimination. See id. We have held
that “a plaintiff advancing an ADEA claim using only circumstantial evidence
[must] prove that discriminatory animus was the determinative basis for his
termination.” Id. at 351 (citations and internal quotation marks omitted). “As
a practical matter, this requirement dictates that the plaintiff put forward
evidence rebutting each one of a defendant’s nondiscriminatory explanations
for the employment decision at issue.” Id. In other words, the plaintiff must
provide evidence showing that each of the defendant’s stated explanations for
termination is pretextual.
      However, a mere scintilla of evidence of pretext does not create a genuine
issue of material fact. Wyvill, 212 F.3d at 301. A plaintiff must present enough
evidence to prove that “the employer’s asserted justification is false.” See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
       For instance, an employer would be entitled to judgment as a
       matter of law if the record conclusively revealed some other,
       nondiscriminatory reason for the employer’s decision, or if the
       plaintiff created only a weak issue of fact as to whether the
       employer’s reason was untrue and there was abundant and
       uncontroverted independent evidence that no discrimination
       had occurred.
Id. (citations omitted). Whether summary judgment is ultimately appropriate
depends on a number of factors which “include the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the employer’s case


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and that properly may be considered on a motion for judgment as a matter of
law.” Id. at 148–49.
      C. Analysis
      It is clear that Anderson sufficiently established a prima facie case of age
discrimination. He was discharged from his position as Executive Director of
TRAA, he was qualified to hold that position, he was within the protected class
at the time he was terminated, and he was replaced by a younger person. See
Machinchick, 398 F.3d at 350. Therefore, our analysis focuses directly on
whether TRAA provided a legitimate nondiscriminatory reason for Anderson’s
termination and, if so, whether Anderson demonstrated that TRAA’s reason
was pretextual. Accordingly, we begin our analysis by recounting the principal
explanations TRAA provided for its decision to terminate Anderson. We then
explore Anderson’s proof that TRAA’s explanations were pretextual. Finally,
we discuss whether any fact issues should be resolved by a jury, thereby
making summary judgment inappropriate in this case.
            1. TRAA’s Stated Reasons for Terminating Anderson
      According to the testimony of several members of the Board, TRAA
terminated Anderson because he provided false information regarding (1)
whether he knew who provided telephone service to the airport; (2) whether he
made statements about the runway extension project to a journalist from the
Daily Journal; and (3) whether he was represented by counsel. Anderson’s
alleged dishonesty resulted in a “loss of confidence”—by a majority of the
Board—in Anderson’s ability to execute his duties as Executive Director. In
addition to the aforementioned reasons for Anderson’s termination, the record
indicates that several Board members had additional concerns about
Anderson’s ability to competently manage the airport. For example, a Board
member explained that during Anderson’s leadership, there were lower
boardings at the airport, undesirable flight schedules, and Anderson had
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                                     No. 13-60666
difficulty     working    with   a   Federal   Aviation   Administration     official.
Furthermore, a Board member testified that there were concerns about
Anderson’s management style and complained about an instance where
Anderson failed to provide the Board with necessary financial information.
Nevertheless, the predominant reason for Anderson’s termination was his
perceived dishonesty with the Board. One Board member testified as to why
honest communication between the Executive Director and the Board is
imperative:
        If [the Executive Director] makes an untruthful statement to a lay
        board, volunteers who are totally dependent, and not experts, upon
        his word, then he can’t remain in that position. And so, [Anderson]
        was terminated for loss of confidence.
         The record makes clear that the Board’s stated reason for terminating
Anderson was his dishonesty that resulted in a loss of confidence. We conclude
that     the    Board’s    explanation,   if   true,   constitutes   a   legitimate
nondiscriminatory reason for Anderson’s termination.

               2. Anderson’s Proof That TRAA’s Reasons Are Pretextual
        Anderson posits that there is a genuine issue of material fact with
respect to whether the Board’s stated reason for his termination is a pretext
for age discrimination. To support this assertion, Anderson argues that: (1) a
Board member testified that Anderson’s performance as Executive Director
was excellent and did not warrant termination; (2) the Board’s allegation that
he provided false information is untrue; and (3) the Board’s chairman referred
to Anderson as “too regimented” and “set in his ways,” evincing his ageism.
        Anderson offered as evidence the affidavit of a former Board member,
Carlyle Harris (“Harris”), which stated that Anderson was “highly competent
and trust worthy.”        According to Harris, the Board’s stated reasons for
terminating Anderson were “trumped up” and there was no legitimate
explanation for the termination. Harris’s affidavit, which is conclusory and
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states an opinion, does not suffice to create a genuine issue of material fact. As
the Supreme Court explained in Celotex Corp. v. Catrett, the nonmoving party
on a motion for summary judgment must provide “specific facts showing that
there is a genuine issue for trial.” 477 U.S. 317, 324 (1986); see also First United
Fin Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135, 139 (5th Cir. 1996) (Garza, J.,
concurring) (per curiam). Affidavits that supply “ultimate or conclusory facts
and conclusions of law are insufficient” to create a genuine issue of material
fact. See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(citation and internal quotation marks omitted). Therefore, we conclude that
Harris’s affidavit does not create a genuine issue of material fact.
      Anderson also argues that he provided truthful answers to the Board’s
questions and—therefore—the Board’s reasons for terminating him are
pretextual.   We disagree.     Anderson’s argument is misguided for several
reasons. We note that Anderson’s argument is largely based upon his assertion
that all of his statements to the Board were in fact true. The more appropriate
question, regardless of whether Anderson’s statements were actually true, is
whether the Board had reason to believe his statements were false or
misleading. See Nasti v. CIBA Specialty Chem. Corp., 492 F.3d 589, 595 (5th
Cir. 2007) (holding that no genuine issue of material fact existed where an
employer’s stated reason for termination was its reasonable belief that the
aggrieved employee submitted a false report to the employer).
      The record demonstrates that members of the Board reasonably believed
that Anderson was less than forthcoming when he stated that he did not know
who provided telephone service to the airport. The Board expected that the
airport’s Executive Director would be able to provide this information if he was
competently attentive to the airport’s operations. Moreover, a Board member
testified that he had previous conversations with Anderson where Anderson
demonstrated his knowledge of the airport’s telephone service providers.
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Anderson has not provided sufficient evidence to demonstrate that the Board’s
belief that he was dishonest about his knowledge of the airport’s telephone
service providers was unreasonable.
      Furthermore, the record demonstrates that Board members disbelieved
Anderson when he claimed he had not provided information that was included
in a Daily Journal article. A Board member testified that he questioned the
journalist who wrote the article and the journalist verified that Anderson was
the source for certain information published therein. Again, Anderson has
failed to provide evidence demonstrating that the Board’s belief that he was
dishonest about this fact was unreasonable.
       Finally, the record demonstrates that Board members believed that
Anderson was dishonest when he claimed that he was not represented by
counsel. Prior to questioning Anderson about whether he was represented by
counsel, the Board’s attorney received a letter from an attorney who referred
to Anderson as his client. At the time Anderson denied being represented by
counsel, he may have truly believed that he was being honest with the board.
We need not decide whether Anderson believed he answered the Board’s
questions honestly. As stated previously, the important question is whether
members of the Board reasonably believed Anderson was dishonest when he
stated that he was not represented by counsel. Anderson has provided no
information—besides his own testimony regarding his subjective belief—that
suggests that the Board’s belief was unreasonable.
      In summary, whether Anderson truly believed he was being honest with
the Board in answering their questions is not the proper inquiry. Our inquiry
focuses on whether TRAA’s stated reasons for terminating Anderson were not
true. The record makes clear that Board members had reason to believe that
Anderson provided false or misleading responses to its questions. Anderson
has failed to provide evidence that the Board’s beliefs were unwarranted,
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unfounded, or contrived. Accordingly, Anderson’s alleged dishonesty—which
resulted in the Board’s loss of confidence in his ability to do his job—constitutes
a legitimate nondiscriminatory reason for his termination which he has failed
to rebut. 2
       Viewing the facts in the light most favorable to Anderson, we conclude
that there is no genuine issue of material fact with respect to whether TRAA
terminated Anderson because of his age.
                                     III. CONCLUSION
       For the foregoing reasons, we conclude that the district court did not err
in its summary judgment for TRAA. Accordingly, we affirm.




       2  Anderson also argues that a Board member’s remarks about his being “too
regimented” and “set in his ways” demonstrates that the stated reasons for his termination
are pretextual. We disagree. We have “repeatedly held that stray remarks do not
demonstrate age discrimination.” See EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1181
(5th Cir. 1996) (citations and internal quotation marks omitted). “In order 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.” Id.
Anderson has made no such showing. Therefore, his argument on this point is without merit.
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