     Case: 14-30445      Document: 00513116084         Page: 1    Date Filed: 07/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                      No. 14-30445
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              July 15, 2015

JOSETTE M. RIPOLL,                                                           Lyle W. Cayce
                                                                                  Clerk
                                                 Plaintiff - Appellant

v.

PATRICK DOBARD; LOUISIANA STATE DEPARTMENT OF EDUCATION,
on behalf of Recovery School District; RECOVERY SCHOOL DISTRICT,
through the Louisiana State Department of Education,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6143


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM: *
       Plaintiff Josette M. Ripoll appeals the summary judgment in favor of
Defendants Patrick Dobard, Louisiana State Department of Education, and
Recovery School District (collectively, “Defendants”) on Ripoll’s claim of age-
based employment discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. Background
      Ripoll served as principal of Schaumberg Elementary School within
Louisiana’s Recovery School District (“RSD”) from July 2007 until her
termination in July 2012.     She was 61 years of age at the time of her
termination. Prior to that position, she worked one year as a principal, five
years as an assistant principal, one year as a coordinator of instruction, and
nineteen years as a teacher. Ripoll holds bachelor’s and master’s degrees in
elementary education and took an additional thirty graduate hours in school
administration.
      RSD evaluated and tracked the progress of its schools using School
Performance Scores (“performance scores”), which were primarily based on
student achievement on state-mandated LEAP examinations. RSD sought to
have each school’s performance score increase by ten points per year.          It
assigned letter grades (i.e. A, B, C, D, and F) to the scores according to
standards set by the Louisiana Board of Elementary and Secondary Education
(“the Board”). Originally, a score of 60 (out of 200) was the threshold for a D,
with anything lower being an F. Over time, the Board gradually increased the
levels so that by 2011 the threshold for a D was a 65, and by 2012 the threshold
for a D was a 75. With Ripoll as Principal, Schaumburg had the following
performance scores: 61.7 in 2009, 70.6 in 2010, 69.9 in 2011, and 71.8 in 2012.
Given these scores and the Board’s escalating metrics, Schaumburg was a D-
rated school from 2009 through 2011 and an F-rated school in 2012.
Schaumberg’s performance score was the second highest of the RSD schools in
2009, but by 2012 it dropped to fifth. In 2012, Schaumburg had the second-
lowest student LEAP examination scores out of all RSD elementary schools,
with the lowest performing school being administratively phased out after
primarily serving students who had failed the examination in prior years.



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      In January 2012, Monica Boudouin, RSD’s Director of Student
Achievement, conducted mid-year evaluations of school leaders, including
Ripoll. Boudouin rated Ripoll on twenty-three performance items as follows:
six “Developing,” fourteen “Proficient,” and three “Exemplary.” The evaluation
listed the goals for Schaumburg as including a performance score of 80 and
10% increases in all areas of LEAP testing. Boudouin evaluated Ripoll as
performing well in the area of effective planning and as needing improvement
in the areas of teaching and learning.         Boudouin noted that rigorous
instruction was not displayed consistently across all classrooms and that there
needed to be “[m]ore focus on closing achievement gaps between subgroups of
students and using data to quickly determine appropriate interventions for
students or subgroups not making progress.”
      Following the 2011–2012 school year, Boudouin discussed with RSD’s
Chief of Staff, Nash Crews, that she believed Ripoll had not made sufficient
progress to justify retaining her as Schaumberg’s principal. Crews attested
that she and Boudouin determined that Ripoll should be terminated as
principal for the following reasons: (1) student progress, as represented by
performance scores, had effectively stagnated under Ripoll’s supervision while
almost all other schools improved and surpassed Schaumburg; (2)
Schaumburg went from a D-rated school to an F-rated school; (3) the goals for
Schaumberg of reaching a target performance score of 80 and improving
student performance in all LEAP areas by 10% were not met, indeed
performance went down in some LEAP areas; and (4) Ripoll struggled to
properly manage and evaluate her faculty. Before a formal decision was made,
Ripoll requested and received a pre-termination hearing before Crews. After
the hearing, Crews recommended to Superintendent Patrick Dobard—who had
the final decision-making authority—that Ripoll be removed from the principal



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position. Dobard notified Ripoll that he concurred in Crews’s recommendation,
removing her from the principal position. Dobard also notified Ripoll that she
could continue at RSD as a teacher, but Ripoll did not accept the teaching
position.
      Ripoll was replaced by Taylor Alston, a 33-year-old teacher from Atlanta,
Georgia. Alston held a bachelor’s degree in English literature and a master’s
degree in education, and had eight years’ experience as a teacher.
      Ripoll filed an Equal Employment Opportunity Commission (“EEOC”)
age discrimination charge with the Louisiana Commission on Human Rights.
In the charge, she swore under the penalty of perjury that she was told by
Sametta Brown, RSD’s Executive Director of Human Resources, that she “was
being discharged because of [her] age.”
      After she received a notice of right to sue letter from the EEOC, Ripoll
filed suit against Dobard and RSD in Louisiana state court, alleging an age
discrimination claim under the ADEA and a state law breach of contract claim.
The Defendants removed the case to federal court and later filed a motion for
summary judgment. The district court granted the Defendants’ motion for
summary judgment on Ripoll’s age discrimination claim and declined pendent
jurisdiction over Ripoll’s state law contract claim pursuant to 28 U.S.C.
§ 1367(c)(3). Ripoll timely appealed the grant of summary judgment on her
age discrimination claim.
                            II. Standard of Review
      We review the district court’s grant of summary judgment de novo,
construing all facts and inferences in the light most favorable to Ripoll, the
nonmoving party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615
(5th Cir. 2009). Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a



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matter of law.” FED. R. CIV. P. 56(a). We may affirm the district court’s grant
of summary judgment on any ground supported by the record and presented to
the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
                                     III. Discussion
       “Where a defendant has moved for summary judgment on an
employment discrimination claim based on circumstantial evidence, as in this
case, we apply the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Turner v. Kan. City S. Ry., 675
F.3d 887, 892 (5th Cir. 2012). Under this framework, which was employed by
the parties and district court in this case, 1 Ripoll must first establish a prima
facie case of age discrimination by showing that: (1) she was discharged from
her position; (2) she was qualified for the position; (3) she was at least forty
years of age; and (4) she was either (i) replaced by someone substantially
younger or (ii) otherwise discharged because of her age. See Jackson v. Cal-W.
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010); see also O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 311–13 (1996) (addressing the fourth
element of the prima facie case under the ADEA). As did the district court, we
assume, without deciding, that Ripoll established a prima facie case. Thus,
under the McDonnell Douglas framework, the Defendants bear the burden of
coming forward with a legitimate, non-discriminatory reason for terminating


       1   Ripoll stated in the district court and on appeal that Brown’s statement that she
was terminated because of her age constituted direct evidence of discrimination. While “the
McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of
discrimination,” by urging only this framework in the district court and on appeal and by
failing to argue that it does not apply, Ripoll waived any argument that the evidence should
be considered outside the McDonnell Douglas framework and under a direct evidence
standard. Turner, 675 F.3d at 892 n.3 (citation and internal quotation marks omitted); see,
e.g., Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 484 (5th Cir. 2009) (unpublished)
(applying the McDonnell Douglas framework where the plaintiff “nowhere acknowledge[d]
direct evidence as an alternative to the McDonnell Douglas analysis,” nor did he argue that
“his claim satisfie[d] a direct evidence standard as set forth in relevant precedent”).


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Ripoll. See Jackson, 602 F.3d at 378 & n.12. The Defendants met their burden
by pointing to the following reasons, which are supported by evidence in the
record: Schaumburg’s performance scores were stagnant between 2010 and
2012, while other schools improved; Schaumburg’s stagnation resulted in its
downgrade from a D-rated school to an F-rated school; Schaumburg did not
meet the RSD goals of a performance score of 80 or a 10% increase in the
passage rate on the annual LEAP examinations; and Ripoll did not properly
evaluate her staff.
      Accordingly, the final burden rests with Ripoll to point to evidence
showing “that the legitimate reasons offered by the defendant[s] were not
[their] true reasons, but were a pretext for discrimination.” Id. at 378 n.12
(quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000)).
Moreover, the evidence must be sufficient to create a fact issue “that age was
the ‘but-for’ cause of the challenged adverse employment action.” Moss v. BMC
Software, Inc., 610 F.3d 917, 927 (5th Cir. 2010) (quoting Gross v. FBL Fin.
Servs., 557 U.S. 167, 180 (2009)). Ripoll “may show pretext either through
evidence of disparate treatment or by showing that the employer’s proffered
explanation is false or unworthy of credence.” Jackson, 602 F.3d at 378–79
(citation and internal quotation marks omitted).     Ripoll does not point to
evidence of disparate treatment, but argues that pretext is shown by the
following: (1) Schaumberg’s performance scores were above the RSD average;
(2) Ripoll received a positive evaluation in January 2012; (3) a principal of a
lower-performing school was transferred to a newly created administrative
position; and (4) Brown told her she was being dismissed because of her age.
      The evidence shows that Schaumberg’s performance scores were above
the RSD average for the 2008–2009, 2009–2010, and 2010–2011 school years.
Also, Ripoll’s January 2012 evaluation could be considered overall positive



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since a majority of her ratings were “Proficient” or “Exemplary,” with only six
out of twenty-three categories being rated “Developing.” However, neither of
these facts contradicts or draws into question RSD’s explanation that it
terminated Ripoll for the following reasons: Schaumberg’s performance scores
stagnated and resulted in an F-rating; Schaumburg did not meet RSD’s stated
goals; and Ripoll did not properly evaluate her staff. Each of these remains a
logical and legitimate reason for dismissing Ripoll as a principal even if
Schaumberg maintained above-average performance scores in earlier years
and Ripoll received what might be considered an overall positive evaluation in
January of 2012. Cf. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899
(5th Cir. 2002) (“Merely disputing Appellee’s assessment of his performance
will not create an issue of fact.”). 2
       Ripoll additionally points to the fact that Al Jones, the 54-year-old
principal of another school that had a lower performance score than
Schaumberg, was transferred to a newly established position focusing on
discipline. This also does not draw into question the reasons given for Ripoll’s
termination. The difference in age between Jones and Ripoll is not significant,
and both were terminated from their principal positions due to performance
issues.    Both were also offered positions below the principal or assistant
principal level. While Ripoll was offered a teaching position, Jones was offered
an administrative position focusing on discipline. The Defendants explained
that Jones was offered this particular position because he had a proven record
with respect to student discipline.            Ripoll does not explain why Jones’s
placement in this position, as opposed to a teaching position, might


       2 The fact that Schaumberg had above average scores in prior years does not rebut
the Defendants’ stated reasons, especially since the average is skewed downward by a school
with a very low performance score (such as the score of 28.8 received by the lowest-performing
RSD elementary school).


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demonstrate that the Defendants’ reasons for her termination are false or
unworthy of credence.
       Finally, Ripoll points to the recounting in her EEOC charge that Brown
told her that she was being discharged because of her age. 3 This statement
does not demonstrate pretext or discrimination because Ripoll has produced no
evidence about Brown’s basis of knowledge for the statement that would allow
an inference that age was the reason for Ripoll’s dismissal. 4 There is no
evidence in the record that Brown was responsible for the employment
decision, had influence over the employment decision, or was privy to the
decision-making process. Instead, the undisputed evidence shows that it was
Boudouin, Crews, and Dobard who participated in the decision to terminate
Ripoll. It may be Brown’s sheer speculation or uninformed opinion that age
was the reason for Ripoll’s termination.             Ripoll simply has not produced
evidence on this issue.
       Accordingly, we hold that Ripoll failed to adduce evidence that would
raise a fact issue “that the legitimate reasons offered by the defendant[s] were
not [their] true reasons, but were a pretext for discrimination.” Jackson, 602
F.3d at 378 n.12 (citation and internal quotation marks omitted).                     Ripoll
likewise did not put forth sufficient evidence to raise a fact issue “that age was
the ‘but-for’ cause of the challenged adverse employment action.” Moss, 610
F.3d at 927 (quoting Gross, 557 U.S. at 180). Notably, Ripoll repeatedly stated
in the district court that the Defendants replaced her for political reasons with



       3The Defendants argue that this statement in Ripoll’s EEOC charge is not competent
summary judgment evidence because it is double hearsay and Brown denies saying it.
However, we need not resolve whether the statement at issue is admissible because even
assuming the admissibility and truth of Ripoll’s assertion about the statement, she has failed
to show pretext.
       4Ripoll did not take any depositions or otherwise diligently pursue discovery that
might have revealed Brown’s role in, or knowledge of, the termination process.


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someone from outside of New Orleans, in addition to arguing that the decision
was based on her age. An additional factor contributing to her termination is
not automatically fatal to her claim. See Leal v. McHugh, 731 F.3d 405, 415
(5th Cir. 2013) (explaining that but-for cause does not mean “sole cause”). Yet,
this factor combines with the dearth of evidence of pretext to demonstrate that
Ripoll failed to present sufficient evidence that age was the but-for cause of her
termination. Summary judgment was properly granted for the Defendants.
      AFFIRMED.




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