     Case: 11-20654       Document: 00512113122         Page: 1     Date Filed: 01/15/2013




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

                                                                            FILED
                                                                         January 15, 2013

                                       No. 11-20654                        Lyle W. Cayce
                                                                                Clerk

JOHN DANIEL,

                                                  Plaintiff - Appellant
v.

UNIVERSAL ENSCO, INCORPORATED,


                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-4140


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant John Daniel was terminated by his former employer,
Defendant-Appellee Universal ENSCO, Incorporated (“UEI”), in a reduction-in-
force. He filed suit against UEI for discrimination on the basis of age, religion,
and national origin, under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-2, the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 623, and the Texas Commission on Human Rights Act (“TCHRA”), TEX.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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LAB. CODE § 21.051. He also brings claims for retaliation by UEI in response to
his complaints of discrimination, under Title VII, 42 U.S.C. § 2000e-3, and
TCHRA, TEX. LAB. CODE § 21.055.1 The district court granted UEI’s motion for
summary judgment and dismissed Daniel’s claims. We now AFFIRM.
                          FACTS AND PROCEEDINGS
      Daniel was born a Muslim in Iran and immigrated to the United States in
1973. A mechanical engineer by training, he was hired by UEI2 to serve as a
Lead Mechanical Engineer and Senior Project Engineer. Daniel began his
tenure in July 2006, at the age of 62, in the Facilities Design Group managed by
Vice President Pano Zhonga (the “Facilities Group”). Daniel worked under the
immediate supervision of Mark Netzel, who reported to Zhonga.                     Daniel
contends that Netzel interfered in his delegated responsibilities, including
denying him adequate resources to complete assignments. Daniel states that in
March 2007, Zhonga took away Daniel’s title of Lead Mechanical Engineer,
stripped him of supervisory authority, and later demoted him from Senior
Project Engineer to Project Engineer. In September 2007, Netzel issued Daniel
an “Employee Warning Notice,” documenting that Daniel had threatened Netzel
during a dispute over project resources. Daniel filed a complaint with UEI’s
Human Resources office (“HR”), alleging the Employee Warning Notice was the
product of discrimination and retaliation.3




      1
        Daniel’s complaint also alleges discrimination due to his race, but he voluntarily
dismissed that claim in his response to the motion for summary judgment, and no longer
pursues it on appeal.
      2
       UEI was acquired by a private equity firm in February 2008 and merged with another
company to form United Pegasus International (“UPI”). We refer to Daniel’s former employer
and Appellee as UEI even when describing events that took place after the merger.
      3
        A copy of Daniel’s September 2007 complaint does not appear in the record. Zhonga
does not recall receiving or hearing of the complaint.

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      In December 2007, Zhonga assigned Daniel to a group headed by UEI Vice
President John Andrus called the “Enbridge Project.” Zhonga explained that
Daniel: “had the symptoms of no team effort, having arguments with Netzel.
And so I thought it would be good idea [sic] to give him second chance [sic] to
work on another team, see how he does.” Daniel states that Andrus denied him
the staff and equipment necessary to perform his new job, and placed him in a
substandard office. Andrus eventually became concerned with the quality and
timeliness of Daniel’s work, reaching, Andrus stated, “the point where we could
no longer in our minds fairly bill the client for his time.” In July 2008, Andrus
returned Daniel to the Facilities Group earlier than planned. Within a month,
Zhonga assigned Daniel to a third group, run by Vice President Kent Bigelow.
Daniel states that by this point he had regained his original title of Senior
Project Engineer and Lead Mechanical Engineer. Nonetheless, Daniel worked
beneath two Jewish engineers he claimed discriminated against him based on
his Iranian and Muslim heritage.
      In spite of Daniel’s reassignments, Netzel remained Daniel’s official
supervisor. In late 2008, Netzel solicited comment on Daniel’s performance from
supervisors at the Enbridge Project and Bigelow’s group to assist in preparing
a year-end performance evaluation. Netzel’s December 8, 2008 performance
evaluation (the “Performance Evaluation”) assigned Daniel a rating of 3 out of
10, noting:
      John’s project managers have given him an average rating for a
      Senior Project Engineer when it comes to paying attention to detail.
      John’s project managers also indicated that his ability to cooperate
      with his cooworkers [sic] needs significant improvement. John must
      increase his skill set and marketability by being more flexible to
      meet client schedules, working more cooperatively with peers,
      taking a greater lead on developing his own work exhibits and
      further improving his quality control processes.




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      Daniel contested the Performance Evaluation. On January 19, 2009, he
sent an e-mail to Andrus and two members of HR, with the subject line
“Complaint for unfair performance evaluation.” Daniel objected to not receiving
copies of the comments Netzel relied upon in the Performance Evaluation, and
Daniel pointed out occasions in which he had earned praise from superiors and
clients for his work. On February 2, 2009, he sent HR officers another e-mail
entitled, “Complaint against Mr. Pano Zhonga for his unlawful practices.” He
attached e-mails, documents, and statements to demonstrate Zhonga’s “unfair,
unjust and discriminatory practices.”
      In late December 2008, citing a decrease in business due to the struggling
economy, UEI’s senior leadership agreed to implement a reduction-in-force
(“RIF”). UEI based the lay offs on employees’ 2008 performance evaluations,
with those receiving a 4 or below terminated in the first phase, beginning in
January 2009, and those receiving a 5 or 6 dismissed later that year. In total,
UEI fired 143 employees in the 2009 RIF, and those terminated generally were
not offered employment elsewhere within UEI. Daniel, who had earned a 3 in
his Performance Evaluation, was terminated in the first RIF phase, in mid-
February 2009. UEI fired 17 employees in the Facilities Group, and, after
Daniel was terminated, Zhonga did not hire a replacement for him.
      After filing charges of discrimination and retaliation with the Texas
Workforce Commission and the Equal Employment Opportunity Commission,
Daniel initiated the present action.
           STANDARD OF REVIEW AND APPLICABLE LAW
      We review the district court’s decision to grant summary judgment de
novo, applying the same standards as the district court. Moss v. BMC Software,
Inc., 610 F.3d 917, 922 (5th Cir. 2010). We may award the moving party
summary judgment if, viewing all evidence in the light most favorable to the
nonmovant, the record demonstrates that there is no genuine issue of material

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fact and that the moving party is entitled to judgment as a matter of law.
United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006);
see Fed. R. Civ. P. 56(a). A dispute gives rise to a genuine issue of material fact
when the evidence permits a reasonable jury to rule in favor of the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[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).
      A plaintiff may prove employment discrimination or retaliation with either
direct or circumstantial evidence. Jones v. Robinson Prop. Grp., L.P., 427 F.3d
987, 992 (5th Cir. 2005); Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414-
15 (5th Cir. 2003), overruled on other grounds by Smith v. Xerox Corp., 602 F.3d
320, 330 (5th Cir. 2010). Daniel does not assert direct evidence that UEI
discriminated or retaliated against him. See Fabela, 329 F.3d at 415. Daniel’s
case relies instead on circumstantial evidence, and we evaluate his
discrimination and retaliation claims under federal and Texas law alike using
the burden-shifting analysis announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). See Evans v. City of Houston, 246 F.3d 344, 349,
352 n.6, 352-55 (5th Cir. 2001); Long v. Eastfield Coll., 88 F.3d 300, 304-05 (5th
Cir. 1996). Under the McDonnell Douglas framework:
      the plaintiff must first demonstrate a prima facie case of
      discrimination; the defendant then must articulate a legitimate,
      non-discriminatory reason for its decision to terminate the plaintiff;
      and, if the defendant meets its burden of production, the plaintiff
      must then offer sufficient evidence to create a genuine issue of
      material fact that either (1) the employer’s reason is a pretext or (2)
      that the employer’s reason, while true, is only one of the reasons for
      its conduct, and another motivating factor is the plaintiff’s protected
      characteristic




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Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th
Cir. 2007) (internal quotation marks omitted).
                                       DISCUSSION
A.     Prima Facie Case
       The first issue is whether Daniel has made out prima facie cases of either
employment discrimination or retaliation. We assume without deciding that
Daniel has offered evidence to support a prima facie case of discrimination based
on his termination, as well as his demotion in Zhonga’s group and reassignment
to the Enbridge Project and Bigelow’s group.4 See Turner v. Kansas City S. Ry.
Co., 675 F.3d 887, 892 (5th Cir. 2012) (“‘The burden of establishing a prima facie
case of disparate treatment is not onerous.’”) (quoting Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981)). We also assume for the sake of argument
that Daniel establishes a prima facie case that he was dismissed in the RIF in
retaliation for his January and February 2009 e-mails objecting to his
Performance Evaluation.5




       4
         Daniel raises other actions taken against him that he argues might support a prima
facie case of discrimination, such as the Performance Evaluation and reductions in his bonus.
However, as the district court concluded, Daniel does not advance those arguments on the
final prong of his prima facie case, for instance by arguing that similarly situated employees
outside his protected classes were treated more favorably than him. See Lee v. Kansas City
S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009); 1 LEX K. LARSON ET AL., LARSON ON
EMPLOYMENT DISCRIMINATION § 8.08(8) (2d ed. 2012) (describing that “almost every case”
involving discrimination in the terms and conditions of the plaintiff’s employment “is based
on comparing the employer’s treatment of [the plaintiff] to that of similarly situated workers”).
As Daniel does not fully pursue those claims, we do not address them.
       5
        Daniel also contends his September 2007 complaint concerning Netzel’s Employee
Warning Notice was a protected activity for which he suffered retaliation. However, he
concedes that he cannot demonstrate that the complaint is causally linked to his termination
or to any other arguable adverse employment action taken against him, as required to
construct a prima facie case. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th
Cir. 2008). We therefore do not address the September 2007 complaint.

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B.    McDonnell Douglas Burden-Shifting Analysis
      Even granting Daniel the assumption that he has established prima facie
claims, his case founders at the burden-shifting phase of the McDonnell Douglas
analysis. UEI first must “produc[e] evidence that the plaintiff was rejected, or
someone else was preferred, for a legitimate, nondiscriminatory reason.” Jones
v. Flagship Int’l, 793 F.2d 714, 725 n.11 (5th Cir. 1986); see Swanson v. Gen.
Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). If the defendant produces
a legitimate reason for its action, the plaintiff must raise evidence sufficient to
create an issue of fact concerning the “ultimate question” of the employer’s
unlawful discrimination or retaliation to survive summary judgment. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
      UEI justifies the changes in Daniel’s responsibilities and his
reassignments with evidence Daniel underperformed at his job and got along
poorly with his supervisors. Zhonga reassigned Daniel to the Enbridge Project
because of Daniel’s struggles working in a team. At the Enbridge Project,
Andrus was disappointed in the caliber of Daniel’s work and returned him to the
Facilities Group. Daniel’s Performance Evaluation rested on the negative
reviews generated by his conduct during that time.          Daniel’s documented
shortcomings as an employee are a legitimate reason for his demotion and
reassignment. See Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986).
UEI also advances sound ones too for Daniel’s firing: UEI’s financial struggles
requiring the RIF and Daniel’s poor Performance Evaluation that qualified him
for termination. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.
1996). We affirm the district court’s findings that UEI has sustained its burden
of producing legitimate rationales for the actions taken in Daniel’s case.
      The burden returns to Daniel to raise a genuine issue of fact that UEI’s
non-discriminatory and non-retaliatory rationales are pretextual. The district
court correctly found that Daniel offered only conclusory statements that

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Zhonga, Netzel, Bigelow, and the Jewish engineers in Bigelow’s group
discriminated or retaliated against him. That showing is inadequate to sustain
Daniel against summary judgment, as it does not provide a basis on which a
reasonable jury could rule in his favor. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1429-30 (5th Cir. 1996) (en banc) (finding that in response
to the defendant’s legitimate rationale of poor work performance, the plaintiff
“offered only his personal perceptions and speculation that USAA’s decision to
remove him from the position was based on his age”), superceded by statute on
other grounds, 28 U.S.C. § 636(b)(1).
      He also contends the Performance Evaluation was discriminatory, and
that it rendered his termination in the RIF discriminatory for its reliance on it.
Nonetheless, he does not specify beyond conjecture how the performance
concerns his supervisors documented between 2007 and 2008 were pretextual.
See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (“‘Evidence that
the proffered reason is unworthy of credence must be enough to support a
reasonable inference that the proffered reason is false; a mere shadow of doubt
is insufficient.’”) (quoting E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438,
1443-44 (5th Cir. 1995)). Moreover, his argument of a malicious link between
the Performance Evaluation and the RIF is not supported by the record. Netzel
issued the Performance Evaluation on December 8, 2008, but Daniel has not
identified record evidence that the senior UEI officials who met to discuss the
RIF did so prior to late-December. Daniel has not identified evidence that his
evaluating supervisors anticipated the Performance Evaluation would trigger
discharge under the later-enforced RIF.
      Daniel further argues that UEI continued to hire workers younger than
him even as the RIF proceeded apace.         He points to a spreadsheet entry
indicating that UEI hired a 44-year-old Senior Project Engineer in February
2009. We require more of plaintiffs attempting to show age discrimination in the

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form of a younger replacement, including evidence that the plaintiff was “clearly
better qualified” than the new hire. Nichols, 81 F.3d at 42; see Moss, 610 F.3d
at 923. The spreadsheet entry provides no such detail. Finally, Daniel claims
he was the first engineer terminated in the 2009 RIF and places significance on
that contention.     Nonetheless, he does not dispute that the Performance
Evaluation qualified him for the initial phase of lay offs according to the RIF.
Even if it were true that Daniel was the first engineer let go, it would not make
pretextual UEI’s assertion that the RIF was untainted by discrimination.
      Even if we assume Daniel has established prima facie cases of
discrimination and retaliation, the district court properly found that he did not
provide evidence to create an issue of fact concerning the legitimate reasons UEI
puts forward for its actions. We therefore AFFIRM.




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