     Case: 15-10647      Document: 00513624395         Page: 1    Date Filed: 08/04/2016




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


                                      No. 15-10647                         FILED
                                                                      August 4, 2016
                                                                      Lyle W. Cayce
WILLIAM FRANCIS CAMPBELL,                                                  Clerk

              Plaintiff–Appellant,

v.

ZAYO GROUP, L.L.C.,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-2192


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Plaintiff–Appellant William Campbell appeals the district court’s grant
of summary judgment in favor of Zayo Group, L.L.C. (“Zayo”) on his age
discrimination claim. Because Campbell failed to raise a genuine dispute of
material fact as to whether Zayo’s stated nondiscriminatory reason for
terminating him was pretextual, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               No. 15-10647
           I. FACTUAL AND PROCEDURAL BACKGROUND
     On April 2, 2012, 61–year old Campbell was hired as a Sales Manager
for AboveNet, a fiber optic network and technology company covering North
Texas and Colorado. Three months later, Zayo acquired AboveNet. After the
acquisition, Zayo named Campbell Director of Texas Sales and assigned him
managerial duties over the entire state of Texas. Campbell’s duties at Zayo
were largely the same as those he had at AboveNet.
     In January 2013, Zayo reorganized its corporate structure and
consolidated its Strategic Alliances and Sales departments. As a result, Zayo
transferred Steven Williams from his original role as Vice President of
Strategic Alliances to Vice President of Sales for Zayo’s central region. On
January 2, Campbell was informed that he would begin reporting to Williams.
Williams, in turn, reported to Zayo’s President of Sales, David Howson, who
was responsible for “approv[ing] the head count associated with hiring and
approval of any . . . form of dismissals.” According to Zayo, as part of the
reorganization, Williams planned to consolidate the Director of Texas Sales
position and the Director of Strategic Alliances position. The Director of
Strategic Alliances position was then held by 41-year-old Lawrence Vega. The
new consolidated position would include both new responsibilities and an
expanded geographic scope.
     On January 9, shortly after Williams became Campbell’s supervisor,
Williams emailed Sandi Mays, Zayo’s Chief of Staff, and sought approval to
terminate Campbell in connection with the reorganization (the “January 9
Email”). Therein, Williams wrote: “We are recommending a consolidation of
staff in the Dallas, TX market. We are eliminating the position that Lawrence
Vega currently holds, Director, Strategic Alliances and recommend moving
Lawrence into the Sales Director role.” In his email, Williams identified
Campbell and Vega as the incumbents in the positions. He stated that he
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selected Vega for retention over Campbell because Vega had been hired in
March 2012 and thus had seniority over Campbell. Williams also noted that
Vega “has equal or superior skills for the role.”
      Zayo has an established procedure for performing a reduction in force
(“RIF”), which provides:
      Based on the following criteria, an employee’s position is selected
      for elimination. [Select in the following order]
      1. Only Incumbent in eliminated position
      2. Seniority (less than other Incumbents)
      3. Job performance (only if performance is documented and has
      been communicated to the impacted person)
      4. Qualifications (provide specific qualifications necessary to
      complete the job that other Incumbents have, that others don’t)
      5. Geographic mobility (you offered the position to the employee,
      and they declined to move).
Campbell contends that Williams eliminated Vega’s position, and not his, and
a straightforward application of Zayo’s RIF policy should have resulted in
Vega’s termination, as he was the only incumbent in the eliminated position.
      After filing a discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”) and receiving a right-to-sue letter,
Campbell sued Zayo in federal district court, alleging that he was terminated
because of his age in violation of the Age Discrimination in Employment Act
(“ADEA”). Zayo filed a motion for summary judgment, which the district court
granted. The court found that though Campbell made out a prima facie case of
age discrimination, he failed to create a genuine factual dispute as to whether
Zayo’s   legitimate   nondiscriminatory     reason     for    his   termination—the
application of a RIF policy that resulted in the retention of the more senior
employee—was pretextual. Thus, the district court concluded that no rational
jury could find that Campbell’s age was the but-for cause of his termination.



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      Campbell now appeals, asserting that (1) the January 9 Email
demonstrates that Zayo did not follow its RIF policy; (2) Zayo’s reliance on a
twenty-one day difference in seniority is “too sheer to be credible”; (3) Campbell
was clearly better qualified for the position and Vega was not qualified;
(4) Williams’s reference to Vega having “superior or equal skills” is “false or
suspicious”; and (5) Zayo made material misrepresentations to the EEOC.
                               II. DISCUSSION
      We review a grant of summary judgment de novo. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). “Summary judgment
is proper if the pleadings and evidence show there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). “A
genuine dispute of material fact exists when ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Davis v. Fort
Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014) (quoting Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)). Though we draw all
reasonable inferences in favor of the non-movant, “a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions,
or ‘only a scintilla of evidence.’” Turner, 476 F.3d at 343 (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
      The ADEA prohibits an employer from discharging an employee on
account of that employee’s age. Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d
470, 474 (5th Cir. 2015). Because it is unlikely that there will be direct evidence
of an employer’s thought process, Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 141 (2000), ADEA claims typically rely on circumstantial evidence
evaluated under the burden-shifting framework outlined in McDonnell
Douglas Co. v. Green, 411 U.S. 792 (1973), see Baker v. Am. Airlines, Inc., 430
F.3d 750, 753 (5th Cir. 2005). Under McDonnell Douglas, a plaintiff must first
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establish a prima facie case of age discrimination; if the plaintiff does so, “the
burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the termination.” Goudeau, 793 F.3d at 474.
      “When the defendant employer comes forward with evidence of a
legitimate, non-discriminatory reason for an adverse employment action, the
presumption of discrimination raised by the plaintiff’s prima facie case drops
out and the plaintiff may attempt to prove discrimination by offering evidence
that the employer’s stated reason is pretextual.” Tyler v. Union Oil Co. of Cal.,
304 F.3d 379, 395 (5th Cir. 2002). “Under the ADEA, the employee must ‘prove
by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.’”
Goudeau, 793 F.3d at 474 (quoting Squyres v. Heico Cos., L.L.C., 782 F.3d 224,
231 (5th Cir. 2015)). “The ADEA thus requires a showing of ‘but-for’ causation.”
Id. at 475.
      The district court found that Campbell made out a prima facie case of
age discrimination. The court also concluded that Zayo provided a legitimate,
nondiscriminatory reason for its employment decision—that Campbell’s
position was eliminated as part of a staff consolidation, and the application of
Zayo’s RIF policy required it to retain the employee with greater seniority.
Neither party challenges these conclusions on appeal. Thus, Campbell must
“produce substantial evidence indicating that the proffered legitimate
nondiscriminatory reason is a pretext for discrimination.” Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (quoting Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003)). “Evidence is substantial if it is of such
quality and weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.” Id. (quoting Laxton,
333 F.3d at 579). “‘An explanation is false or unworthy of credence,’ and thus
pretextual, ‘if it is not the real reason for the adverse employment action.’” Id.
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(quoting Laxton, 333 F.3d at 578). At the pretext stage, the issue is “whether
[the employer’s] reason, even if incorrect, was the real reason for [the
plaintiff’s] termination.” Goudeau, 793 F.3d at 476 (alterations in original)
(quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)).
      Campbell first argues that Zayo’s stated reason for his termination—the
neutral application of its RIF policy resulting in the retention of the more
senior employee—is false. In support of this proposition, Campbell points to
the January 9 Email, which he argues “explicitly and unambiguously states
that Vega’s position is being eliminated.” Under Zayo’s RIF policy, the only
incumbent in the eliminated position is to be terminated before Zayo considers
seniority. Thus, according to Campbell, the RIF should have resulted in Vega’s
firing because he was the only incumbent in the eliminated position.
      In response, Zayo contends that it consolidated Campbell’s and Vega’s
roles together and considered both of them as incumbents for the new position.
Zayo presented evidence that, in his new role, Vega retained some of the duties
that he had as Director of Strategic Alliances, plus the duties of a sales director.
He was also assigned an expanded territory. Further, Zayo presented evidence
that it assigned some of the duties that Campbell had performed as a sales
director to other employees. Campbell does not dispute these underlying facts
but instead (1) argues that the January 9 Email contradicts this stated reason
and (2) describes this explanation as Zayo’s post-hoc justification.
      Campbell’s primary argument is that the January 9 Email, which stated
that Zayo was “eliminating the position that Lawrence Vega currently holds,
Director, Strategic Alliances and recommend[ed] moving Lawrence into the
Sales Director role” contradicts Zayo’s explanation. However, the January 9
Email also states that “[w]e are recommending a consolidation of staff in the
Dallas, TX market.” As previously explained, Campbell has failed to rebut
Zayo’s evidence that Vega was assigned to this consolidated position. Instead,
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                                 No. 15-10647
Campbell argues that, viewed in the light most favorable to him, the tense of
the January 9 Email creates an inference of pretext. According to Campbell,
the January 9 Email presents the elimination of Vega’s job “as a done deal” but
shows that the consolidation of staff and reorganization were future events
that had yet to occur. However, Campbell’s suggestion that a consolidation had
not yet begun is contradicted by the record: For example, Zayo presented
evidence that the staff consolidation had already resulted in Williams being
assigned to a managerial role over Campbell. Campbell does not rebut this
evidence. Nor does Howson’s testimony create a genuine factual dispute on this
issue. Though Howson agreed with the January 9 Email’s statement that the
Director of Strategic Alliances position was being eliminated, he testified that
Zayo was consolidating Campbell’s and Vega’s positions as part of a
reorganization and proceeding with just one consolidated position. Again, Zayo
provided evidence—which Campbell does not dispute—that Vega indeed
assumed this blended role.
      Relying on Burton, Campbell also asserts that Zayo cannot rely on
evidence of the consolidated Sales Director job because these reasons
“postdated the actual termination decision for Campbell.” This reliance is
misplaced. In Burton, we explained that “a purported reason for a decision that
postdates the actual decision is necessarily illegitimate.” 798 F.3d at 238. As a
matter of common sense, this is true because “[t]he employer could not have
been motivated by knowledge it did not have.” Patrick v. Ridge, 394 F.3d 311,
319 (5th Cir. 2004); see also Burton, 798 F.3d at 238. Burton illustrates this
difference: there, the employer sought to rely on alleged incidents of the
employee’s poor performance that occurred after it made its termination
decision. 798 F.3d at 238. These “purported ‘reasons’ for [the employee’s]
termination postdat[ed] the decision to terminate her” and thus gave rise to an


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                                      No. 15-10647
inference of pretext. Id. at 239. Campbell, however, presents no similar
evidence.
       Nor has Campbell created a genuine factual dispute as to whether Zayo’s
application of the RIF policy was not the real reason for his termination. Zayo
presented evidence that (1) it had already begun to consolidate staff;
(2) Williams viewed Vega and Campbell as incumbents for the same position;
and (3) it created a consolidated position with duties blended from both Vega’s
and Campbell’s former roles. Campbell does not contradict this evidence and
provides no evidence suggesting dishonesty in Williams’s belief that Campbell
and Vega were both incumbents. Instead, he simply suggests that Vega should
have properly been viewed as the only incumbent. 1 But this mere disagreement
with Williams’s application of the RIF policy, without more, does not provide
substantial evidence of pretext. As we have previously explained, “[t]he ADEA
cannot protect older employees from erroneous or even arbitrary personnel
decisions, but only from decisions which are unlawfully motivated.” Moss v.
BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010) (quoting Bienkowski v.
Am. Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)). Therefore,
Campbell has failed to create a genuine dispute of material fact as to the falsity
of Zayo’s explanation for his termination.
       Campbell also argues that even if Zayo actually applied its RIF policy,
its reliance on seniority in applying the policy is “too sheer to be credible”
because the difference in seniority between Vega and Campbell was just
twenty-one days. 2 Campbell does not dispute, however, that Zayo’s RIF policy


       1 Campbell argues that Zayo previously failed to follow its RIF policy when it hired
61-year-old Campbell over a younger employee, 53-year-old Russell Smith, who also worked
at AboveNet. There is no evidence in the record, however, that Zayo’s RIF process would have
applied to an initial hiring decision made when Zayo acquired AboveNet.
       2 Campbell argues that this court has held that a reason for a termination “(albeit

true) can simply be too ‘sheer.’” In support of this argument, Campbell cites our decision in
Thibodeaux-Woody v. Houston Community College, 593 F. App’x 280 (5th Cir. 2014), but that
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lists seniority as the second criterion to be considered and that Vega was the
more senior employee. “The ADEA was not intended to be a vehicle for judicial
second-guessing of employment decisions . . . .” Moss, 610 F.3d at 926 (quoting
Bienkowski, 851 F.2d at 1507–08). Though Campbell asserts that a twenty-one
day difference in seniority is a distinction without a difference, “[s]imply
disputing [the employer’s] business judgment is not enough to prove pretext
without producing evidence that the reasons stated were pretextual.” Goree v.
Comm’n Lincoln Par. Det. Ctr., 437 F. App’x 329, 334 (5th Cir. 2011).
       Nor do the cases Campbell cites lead to a different conclusion. In none of
those cases did a court determine that an employer’s true reason was simply
too “unbelievable.” Rather, in each situation, the employee undercut the
employer’s business judgment defense with some other evidence that the
employer either considered impermissible factors in its employment decision
or failed to uniformly apply a company policy. See Flanner v. Chase Inv. Servs.
Corp., 600 F. App’x 914, 920 (5th Cir. 2015) (noting evidence that other
employees were not fired for committing the same violation); Brewer v. Cedar
Lake Lodge, Inc., 243 F. App’x 980, 989 (6th Cir. 2007) (finding a triable fact
issue on pretext where there was evidence that race had been introduced into
the hiring process and the job posting did not list seniority as a preference);
Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 290–91 (7th Cir. 1999)
(explaining that a jury could find employer’s stated reason pretextual where



case had nothing to do with the ADEA or pretext analysis and is otherwise distinguishable.
There, we cited International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257 (5th Cir. 1991),
which recognized that where a party moves for summary judgment on the basis of an
affirmative defense (for which, of course, that party bears the burden of proof), the non-
movant may defeat summary judgment by showing that the movant’s evidence “is so sheer
that it may not persuade a reasonable fact-finder to return a verdict” in the movant’s favor.
Id. at 1265. But here, “[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Reeves, 530 U.S. at 143 (alteration in original) (quoting Tex. Dep’t. of Cmty. Affairs v. Burdine,
450 U.S. 248, at 256 (1981)).
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                                  No. 15-10647
the conduct violating the company code of conduct was distinguishable from
the conduct of other employee’s punished under the same provision). Since
Campbell has not produced sufficient evidence that Zayo’s reliance on its RIF
procedure was pretextual, his argument is simply an impermissible challenge
to the wisdom of Zayo’s RIF policy.
      Campbell next contends that his firing was pretextual because (1) he was
clearly better qualified than Vega for the new position and (2) Vega was not
qualified for the position. “[Q]ualifications evidence may suffice, at least in
some circumstances, to show pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454,
457 (2006). We have recognized that, in some situations, “[a] fact finder can
infer pretext if it finds that the employee was ‘clearly better qualified’ (as
opposed to merely better or as qualified) than the employees who are selected.”
EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995).
      At the pretext stage of the summary judgment analysis, however, the
key inquiry is whether the plaintiff has created a genuine dispute as to
whether “the legitimate reasons offered by the defendant were not its true
reasons.” Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143); see also
Stennett v. Tupelo Pub. Sch. Dist., 619 F. App’x 310, 318–19 (5th Cir. 2015)
(concluding that evidence of the plaintiff’s superior qualifications cast doubt on
employer’s “proffered hiring rationale—i.e., that the younger successful
applicants were selected because they were all better qualified than her”);
Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003) (“In order to
demonstrate that [the employer’s] asserted justification (that [selected
employees] were more qualified) was pretext, [the plaintiff] can attempt to
show that he was ‘clearly better qualified’ for the . . . position.” (quoting Price
v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2003))).
      Here, Zayo’s explanation for Vega’s retention over Campbell was not
based on their relative qualifications or performance; instead, Zayo’s reason is
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                                     No. 15-10647
that because Campbell and Vega were both considered to be incumbents, its
RIF policy required the retention of the more senior employee. Even assuming
Campbell presented sufficient evidence that he was clearly better qualified or
that Vega was not qualified for the position, such evidence would not show in
this case, as is relevant to pretext, that Zayo’s stated nondiscriminatory reason
“is not the real reason for the adverse employment action.” 3 Burton, 798 F.3d
at 233 (quoting Laxton, 333 F.3d at 578); see also Julian v. City of Houston, 618
F. App’x 211, 215 (5th Cir. 2015) (observing that employee’s evidence does not
“demonstrate pretext [where] it does not serve to cast any doubt on the
legitimate, nondiscriminatory reason the [employer] has proffered for its
decision”). The ADEA does not require an employer “to make proper decisions,
only nondiscriminatory ones.” See Bryant v. Compass Grp. USA Inc., 413 F.3d
471, 478 (5th Cir. 2005).
      Campbell next asserts that the reference to Vega’s “superior or equal
skills” in the January 9 Email is false or suspicious and thus shows pretext.
We disagree. The January 9 Email does not reference performance as being
relevant to the RIF decision. And even assuming performance was a
consideration, Campbell presents no evidence that Williams’s statement was
otherwise pretext. His argument that this statement is “clearly false” and
“sounds like Williams trying to build a case for what he knows is wrong” is
based only on conclusory assertions and his subjective belief, neither of which
are sufficient to withstand summary judgment. See Davis, 765 F.3d at 484.
      Finally, Campbell contends that Zayo made misleading statements to
the EEOC. “A jury may view ‘erroneous statements in [an] EEOC position
statement’ as ‘circumstantial evidence of discrimination.’” Burton, 798 F.3d at

      3  We need not conclude, as the district court did, that Campbell failed to create a
genuine dispute as to whether he was clearly better qualified than Vega. We may affirm
summary judgment on any ground supported by the record, even if it is different from that
relied on by the district court. See Moss, 610 F.3d at 928.
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237 (alteration in original) (quoting Miller v. Raytheon Co., 716 F.3d 138, 144
(5th Cir. 2013)). But Campbell has not produced evidence that would allow a
reasonable jury to conclude that Zayo made such misleading statements;
Campbell’s entire argument is based on his strained interpretation of the
January 9 Email, which, as we have explained, is insufficient to create a
genuine dispute as to pretext.
                             III. CONCLUSION
      Viewing the evidence in the light most favorable to Campbell, he failed
to raise a genuine dispute as to whether Zayo’s stated reason for his
termination was merely a pretext for age discrimination. Because no rational
jury could conclude that Zayo’s explanation for Campbell’s termination was
false or that Campbell’s age was the but-for cause of his termination, the
district court’s grant of summary judgment is AFFIRMED.




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