     Case: 18-20168        Document: 00514722854         Page: 1   Date Filed: 11/14/2018




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

                                                                                FILED
                                     No. 18-20168                       November 14, 2018
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
TRAVIS SIMMONS,

                 Plaintiff - Appellant

v.

SAIA MOTOR FREIGHT LINE, L.L.C.,

                 Defendant - Appellee




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:15-CV-1010


Before DAVIS, HAYNES, and GRAVES, Circuit Judges. 1
PER CURIAM:*
       Plaintiff-Appellant Travis Simmons (“Simmons”) appeals the district
court’s grant of summary judgment on his age discrimination claim in favor of
Defendant-Appellee SAIA Motor Freight Line, L.L.C. (“SAIA”). Finding no
reversible error, we AFFIRM.



       1   Judge Haynes concurs in the judgement only.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. Background and Procedural History
     Simmons began working for SAIA in 1976. He started his employment
as a “dock worker/city driver,” and later became a line haul truck driver. In
May 2012, Sam Lynch, a Safety Manager for SAIA’s Houston Terminal,
commented to Simmons that SAIA was spending too much on insurance for
him and that he had too many injuries. He told Simmons, “SAIA is getting rid
of all you old Bucks and bringing in young Bucks to take your place.” Simmons
was 61 at the time. Lynch then told Simmons, “SAIA wants young, productive
drivers in good health.” About a week later, Don Langford, an Assistant
Terminal Manager, and David Hanlon, an Operations Manager, approached
Simmons and asked, “Travis, don’t you think it’s time to retire?” Hanlon then
commented, “He does not need to retire, just go home, because he can’t handle
this job.” When Simmons responded he did not know what Langford and
Hanlon were talking about because he did not steal from SAIA, Hanlon
remarked, “Yes, you do steal from SAIA, always being hurt, always costing
SAIA a lot of money and complaining about everything, just go home man.”
     Several months later on October 9, 2012, Lynch again observed that
SAIA was spending too much on Simmons and he had too many injuries. He
again commented about SAIA getting rid of “old bucks” in favor of “young
bucks.” Lynch stated SAIA wanted young and productive drivers and that
SAIA considered Simmons a “walking liability.” He commented that no black
drivers had ever been able to retire from SAIA’s Houston facility. That same
night, Langford showed up uninvited to the church where Simmons’ grandchild
was being baptized. In the parking lot after the baptism, Langford told
Simmons and his wife that Simmons should consider retiring soon. When
Simmons said he wanted to work until he was 65, Langford responded that
“time may not be on your side” and that no black driver had ever retired from
SAIA’s Houston Terminal. The next evening, Delbert Bryer, the Houston
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                                 No. 18-20168
Terminal Manager, suggested Simmons should retire before being replaced by
a younger driver. Two other SAIA managers separately overheard Langford
saying SAIA needed to get rid of the older drivers, and in one instance Langford
was specifically referring to Simmons.
      Less than a month later on November 1, 2012, Simmons was involved in
an accident while driving a line haul route. The accident resulted in the rear
trailer of the truck flipping over and disconnecting from the lead trailer.
Simmons reported the incident to SAIA and stated he was forced off the road
by an independent trucker, a practice about which he had previously
complained to SAIA’s CEO. Tom Lillywhite, the Regional Human Resources
Manager, spoke with Simmons the day after the accident. After speaking with
Simmons, Lillywhite concluded no other driver was involved in the accident
and Simmons instead fell asleep at the wheel. The incident was also
investigated by Sheldon McCabe, a Regional Safety Manager out of Tennessee.
McCabe conducted the investigation, rather than Lynch (who would normally
have done the investigation), at Simmons’ request. McCabe reviewed the
insurance adjustor’s report, Lillywhite’s report, and interviewed Simmons.
McCabe agreed with Lillywhite’s conclusion that no independent trucker had
been involved and that Simmons had fallen asleep while driving.
      After the incident, a conference call took place with Lillywhite, Bryer,
McCabe, and three other SAIA management team members, none of whom are
alleged to have made any sort of comments to Simmons. During this call,
McCabe and Lillywhite noticed inconsistencies in Simmons’ statements made
during their respective interviews of him. Simmons’ accident was deemed a
major accident because it was considered preventable and it involved
significant property damage. Based on the information from the conference
call, the reports, and his conversation with Simmons, Lillywhite determined
Simmons’ should be terminated. SAIA’s policy is for a Human Resources
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manager to make the final decision regarding an employee’s termination. On
November 20, 2012, Lillywhite and Bryer called Simmons to inform him of the
termination decision. Lillywhite told Simmons he could resign in lieu of
termination. On November 21, 2012, Simmons’ employment was terminated.
      Simmons filed suit in district court, alleging SAIA terminated his
employment because of his age, race and disability, in violation of the Age
Discrimination Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Title
VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. After discovery, SAIA filed
a motion for summary judgment. Simmons filed a response in opposition as to
his age discrimination claim, but voluntarily dismissed his race and disability
discrimination claims. Simmons now appeals the district court’s grant of
summary judgment in favor of SAIA.


                           II. Standard of Review
      This court reviews a grant of summary judgment de novo, applying the
same summary judgment standard as the district court below. Smith v. Reg’l
Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (citing United States v.
Lawrence, 276 F.3d 193, 195 (5th Cir. 2001)). “Although summary judgment is
not favored in claims of employment discrimination, it is nonetheless proper
when ‘there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’” Waggoner v. City of
Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993) (quoting Fed. R. Civ. P. 56)
(internal citations omitted). “A genuine issue of material fact exists ‘if the
evidence is such that a reasonable jury could return a verdict for the non-
moving party.’” Crawford v. Formosa Plastics Corp., Louisiana, 234 F.3d 899,
902 (5th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “We view the evidence in the light most favorable to the non-moving


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party and avoid credibility determinations and weighing of the evidence.”
Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).


                                    III. Discussion
       On appeal, Simmons claims the district court erred by applying the
burden shifting framework of McDonnel Douglas 2 to his age discrimination
claim. He argues that because he brought forth direct evidence of
discrimination, he did not need to establish a prima facie case of
discrimination; the direct evidence he presented was sufficient by itself for his
claim to withstand summary judgment.
       Under the ADEA, “[i]t shall be unlawful for an employer . . . 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). “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)
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)). Direct evidence
is evidence that, if believed, would prove discrimination without any inferences
or presumptions. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th
Cir. 2005). This court applies a four-part test to determine whether comments


       2  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (discussing how a
plaintiff with only circumstantial evidence of discrimination must first establish a prima
facie case of discrimination before the burden shifts to the defendant to identify a non-
discriminatory reason for the adverse employment action). In his brief, Simmons refers
several times to the burden shifting framework of Price Waterhouse v. Hopkins, 490 U.S. 228
(1989); however, he appears to be discussing the McDonnell Douglas framework. The Price
Waterhouse mixed-motives framework (used when an employee suffers an adverse
employment action based on both permissible and impermissible considerations) does not
apply in age discrimination cases under the ADEA because age must be the but-for cause of
the adverse employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173 (2009).
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made in the workplace constitute direct evidence of discrimination and are
therefore sufficient to overcome summary judgment. Rodriguez v. Eli Lilly &
Co., 820 F.3d 759, 764 (5th Cir. 2016) (quoting Reed v. Neopost USA, Inc., 701
F.3d 434, 441 (5th Cir. 2012)). To qualify as direct evidence, the workplace
comments must be: 1) related to the plaintiff’s age; 2) proximate in time to the
plaintiff’s termination; 3) made by individuals with authority over the
termination decision; and 4) related to the termination decision. Id. (quoting
Auguster v. Vermillion Par. Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001)).
Comments that do not meet these criteria are considered “stray remarks” and
are insufficient on their own to defeat summary judgment. Jackson, 602 F.3d
374, 380 (5th Cir. 2010).
      Simmons argues the statement by Delbert Bryer that he should consider
retiring before SAIA replaced him with a younger driver qualifies as direct
evidence. 3 According to Simmons, this comment meets the four-part test and
constitutes direct evidence of discrimination because it was made less than 60
days before Simmons was terminated, Bryer participated in “the discussion
concerning Simmons’ termination,” and the statement related to Simmons’
termination because the other SAIA managers “openly discussed” and
confirmed “SAIA’s ‘plan’ to replace older drivers.”
      We assume arguendo Bryer’s comment relates to Simmons’ age and was
proximate in time to his termination and turn to the third and fourth factors.
As for the third factor, the record does not support an inference that Bryer had
authority over the decision to terminate Simmons. Bryer participated on a
conference call with five other people where the accident and insurance
adjuster’s report were discussed. During this call, McCabe and Lillywhite


      3Simmons does not argue that any of the age-related statements by the other SAIA
managers constitute direct evidence, most likely because none of the other statements were
made by anyone who even arguably had the authority to terminate his employment.
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noted some inconsistencies in Simmons’ statements during the investigation.
As a result of this information, and the fact that Simmons’ accident was
deemed a major accident, Lillywhite—not Bryer—made the final decision to
terminate Simmons’ employment. At most, Bryer can be said to have
participated in the discussion about Simmons’ termination.
      However, even if it could be said that Bryer participated in the decision
to fire Simmons and that participation is sufficiently equivalent to authority,
there is nothing supporting an inference that Bryer’s statement, made prior to
Simmons’ accident, related to Lillywhite’s decision to terminate Simmons. Nor
can the age-related comments by the other managers transform Bryer’s
statement from a stray remark about retirement into direct evidence of Bryer’s
discriminatory intent regarding the specific decision to terminate Simmons
after his accident. This is not to say that Bryer’s and the other managers’
statements have no evidentiary value; merely that they qualify as
circumstantial evidence rather than direct evidence. Accordingly, the district
court did not err in concluding that Simmons did not present direct evidence
of age discrimination and that the McDonnell Douglas framework applied to
Simmons’ claim. 4
      The district court’s judgment is AFFIRMED.




      4 Simmons does not contend he satisfied the McDonnell Douglas framework; therefore,
we do not address that issue.
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