     Case: 13-60272      Document: 00512490323         Page: 1    Date Filed: 01/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60272
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2014
PAUL CHAMBLEE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

MISSISSIPPI FARM BUREAU FEDERATION; RANDY KNIGHT,
Individually and in Their Official Capacity; DAVID WAIDE, Individually and
in Their Official Capacity,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-655


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Paul Chamblee appeals the district court’s grant of Mississippi Farm
Bureau Federation (“Farm Bureau”), Randy Knight and David Waide’s
(collectively, the “Defendants”) motion for summary judgment concerning
Chamblee’s Age Discrimination in Employment Act (“ADEA”) claim and
various state-law claims. Because Chamblee did not demonstrate that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Defendants’ nondiscriminatory basis for his termination was pretextual and
otherwise failed to assert cognizable state-law claims for relief, we AFFIRM.
                     I. Factual and Procedural Background
      Chamblee worked as a regional manager in Farm Bureau’s state-wide
office in Mississippi until he was terminated at age fifty-five. He was an at-
will employee who reported to the president of the state-wide office, an elected
position.   After Waide announced that he would not seek reelection as
president, Knight, who was vice-president at the time, announced his
candidacy for the position.     Two additional candidates ran for president,
including Ken Middleton. The parties do not dispute that during Waide’s
presidency, Farm Bureau prohibited employees from participating in the
politics of elections and provided that violation of this policy could result in
termination. Farm Bureau instituted this policy to encourage cohesiveness
and trust between the president and regional managers because the regional
managers work on behalf of the president and serve as his or her
representatives in the field.
      Knight won the election and, shortly after assuming the position of
president, terminated Chamblee for his alleged involvement in the election and
support of his opponent, Middleton. Knight also terminated another regional
manager, Greg Shows, for his support of Middleton. Chamblee sued, alleging
that he was terminated as a result of his age in violation of the ADEA and
asserting various state-law claims, including negligent and intentional
infliction of emotional distress, invasion of privacy, defamation, breach of
contract, unlawful termination, and civil conspiracy.       The district court
granted summary judgment for the Defendants on all of Chamblee’s claims,
and Chamblee appealed.




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                            II. Standard of Review
      We review the district court’s grant of summary judgment de novo.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
Summary judgment is appropriate when, after considering the pleadings,
discovery materials, and affidavits, “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(c); see also LeMaire, 480 F.3d at 387. We must take all the facts
and evidence in the light most favorable to Chamblee, the non-moving party.
See LeMaire, 480 F.3d at 387.
                        III. Age-Discrimination Claim
      Because    Chamblee     does   not   present   direct   evidence   of   age
discrimination, we analyze his ADEA claim under the burden-shifting analysis
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Jackson v.
Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010). This analysis
requires “[a] plaintiff relying on circumstantial evidence [to] put forth a prima
facie case, at which point the burden shifts to the employer to provide a
legitimate, non-discriminatory reason for the employment decision.” Berquist
v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). Once the employer
satisfies its burden, the plaintiff is then afforded an opportunity to rebut the
employer’s explanation by showing that its reason for termination is merely
pretextual. Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). The
plaintiff may establish pretext by demonstrating, inter alia, that the
employer’s “explanation is unworthy of credence.” Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 220 (5th Cir. 2001) (citation and internal quotation marks
omitted).
      The parties agree that Chamblee has presented a prima facie case and
that the Defendants have satisfied their burden of providing a non-
discriminatory reason for terminating Chamblee.           They dispute whether
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                                  No. 13-60272
Chamblee has produced sufficient evidence establishing that the Defendants’
proffered reason for terminating him was pretext for age discrimination.
      Chamblee seeks to establish pretext by arguing that the Defendants’
reason for his termination is false or unworthy of credence because he was not
in fact involved in the political process surrounding the election. However, our
analysis of whether an alleged violation of an employer’s policy is a pretext for
discrimination does not turn on whether the employee in fact violated the
policy, but rather whether the employer reasonably believed the employee
violated the policy and acted based on that belief. See Waggoner v. City of
Garland, Tex., 987 F.2d 1160, 1165 (5th Cir. 1993); see also Jackson v. Watkins,
619 F.3d 463, 468 n.4 (5th Cir. 2010) (noting that at the summary judgment
stage an employer need “not provide any examples, experiences, or facts to
support” its legitimate, nondiscriminatory reason for termination (citation and
quotation marks omitted)); Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th
Cir. 1991) (explaining that “even an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, non-discriminatory
reason” for termination).
      The Defendants presented uncontroverted evidence that Middleton
benefited from “inside information” throughout the election campaign.
Specifically, Waide and Knight testified that the nature of information that
Middleton discussed during campaign speeches demonstrated that he received
information that could only come from ten people at the Farm Bureau state-
wide office, which included Chamblee. Knight also explained that “numerous
people” warned him that “Middleton had people on the inside working for him.”
Indeed, one of the regional managers testified that Middleton approached him
to request his support and when he declined to become involved in the
campaign, Middleton informed her that other regional managers were
supporting and assisting him. Further, Knight testified that he observed
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                                       No. 13-60272
Chamblee and Middleton “speaking excitedly” for “extended lengths of time”
whenever they were together. The investigation performed by Farm Bureau’s
attorney revealed, inter alia, that there were at least fifty phone calls or text
messages between Chamblee and Middleton during the election season.
        In contrast, while Chamblee maintains that he was not involved in the
campaign, he presented no evidence to contradict the Defendants’ evidence
supporting Knight’s conclusion that Chamblee participated in the election by
assisting Middleton. 1       Faced with the Defendants’ uncontroverted evidence,
Chamblee has not brought forth facts showing that the proffered reason was
“unworthy of credence.” Nor did he otherwise show a discriminatory animus
motivating the decision. Accordingly, the district court did not err in granting
summary judgment relief on Chamblee’s ADEA claim. 2 See Moss, 610 F.3d at
922.




        1Despite Chamblee’s arguments, he cannot establish pretext based on the fact that
Knight and Waide did not investigate other regional managers apart from himself and Shows
because he fails to demonstrate that he was similarly situated with the other regional
managers. Indeed there is no evidence to suggest that the Defendants had any reason to
investigate the other regional managers for possible political involvement. See Wyvill v.
United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000) (“To establish a claim of disparate
treatment, [the employee] must show that [the employer] gave preferential treatment to a
younger employee under ‘nearly identical’ circumstances.”).

        2To the extent Chamblee seeks to establish a violation of the ADEA through disparate
impact based on the Defendants’ restructuring of the state-wide office, his claim is not
properly before the court because he did not present it in his EEOC charge. See Pacheco v.
Mineta, 448 F.3d 783, 792 (5th Cir. 2006). Although Chamblee argues that the Defendants
waived this exhaustion defense, the Defendants pleaded exhaustion as an affirmative defense
in their answer and presented arguments concerning this defense in their reply brief
following Chamblee’s assertion of disparate impact. Moreover, even if Chamblee had
exhausted his administrative remedies, he does not allege a valid disparate treatment claim.
Specifically, while he asserts that the restructuring plan adversely affected him, he fails to
satisfy his burden of identifying any facially-neutral policy that has an adverse impact on a
protected class. See Smith v. City of Jackson, 544 U.S. 228, 241 (2005); Hebert v. Monsanto
Co., 682 F.2d 1111, 1116 (5th Cir. 1982).

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                             IV. State-Law Claims
      As the district court recognized, Chamblee’s state-law claims also fail.
Chamblee does not present a cognizable claim for intentional infliction of
emotional distress because apart from asserting that this is “not your ordinary
employment dispute,” he fails to present evidence to suggest that the
Defendants’ conduct was outrageous or extreme enough to entitle him to relief
on this claim. See Starks v. City of Fayette, 911 So. 2d 1030, 1036 (Miss. Ct.
App. 2005) (“To prevail in a claim for intentional infliction of emotional
distress, the alleged conduct must be so outrageous in character and so
extreme in degree as to go beyond all possible bounds of decency.”); see also Lee
v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 851 (Miss. 2001)
(“A claim for intentional infliction of emotional distress will not ordinarily lie
for mere employment disputes.”). Chamblee’s claim for negligent infliction of
emotional distress also fails as it is barred by the Mississippi Worker’s
Compensation Act (“MWCA”), which provides the exclusive means of relief for
an employee’s claim based on his employer’s negligent conduct. See MISS.
CODE. ANN. § 71-3-9 (West 2011); see also Miller v. McRae’s, Inc., 444 So. 2d
368, 371 (Miss. 1984) (observing that the MWCA’s exclusivity provision
prevents employees from raising common-law negligence claims).
      Chamblee’s claims for invasion of privacy and defamation similarly fail.
As the district court observed, he presented no evidence to support his claim
that the Defendants disclosed to other Farm Bureau employees that the reason
for his termination was his support of Middleton during the campaign.
Further, his defamation claim based on Knight’s assertion that there was
“ample evidence” to support his termination cannot give rise to a defamation
claim because there is at least some evidence of Chamblee’s involvement in the
political process and characterizations of the amount of evidence merely reflect
opinions that cannot give rise to a defamation claim. See Roussel v. Robbins,
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688 So. 2d 714, 723 (Miss. 1996) (“[T]he relevant inquiry is whether the
statement could be reasonably understood as declaring or implying a provable
assertion of fact.” (citation and internal quotation marks omitted)); see also
Ferguson v. Watkins, 448 So. 2d 271, 276 (Miss. 1984) (“Opinion statements
are actionable only if they clearly and unmistakably imply the allegation of
undisclosed false and defamatory facts as the basis for the opinion.”). Also,
Farm Bureau’s response to Chamblee’s charge of discrimination to the EEOC
cannot give rise to a defamation claim because such statements were made
within the scope of the Defendants’ qualified privilege, and Chamblee has not
overcome his burden of demonstrating that these statements were not made in
good faith.     See Smith v. White, 799 So. 2d 83, 86 (Miss. 2001) (“A
communication made in good faith and on a subject-matter in which the person
making it has an interest, or in reference to which he has a duty, is privileged
if made to a person or persons having a corresponding interest or duty.”
(citation and quotation marks omitted)); see also Stockstill v. Shell Oil Co., 3
F.3d 868, 872 (5th Cir. 1993) (explaining that an employer has a duty to
cooperate in EEOC investigations and an interest in defending itself against
an employee’s charge).
      Further, Chamblee’s claims for breach of contract and wrongful
termination are without merit as he was an at-will employee who could be
terminated at any time. 3 See Jones v. Fluor Daniel Servs. Corp., 959 So. 2d
1044, 1046 (Miss. 2007). Finally, Chamblee’s claim based on civil conspiracy
fails because he presents no evidence to suggest that Knight and Waide




      3  Chamblee’s reliance on Farm Bureau’s employee handbook is misplaced. He does
not identify any term in the employee handbook that modifies his status as an at-will
employee, and any alleged violation of the manual’s ethical rules by Knight is an issue
separate from his employment relationship with Farm Bureau.

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conspired to “accomplish[] an unlawful purpose or a lawful purpose
unlawfully.” See Shaw v. Burchfield, 481 So. 2d 247, 255 (Miss. 1985).
                                       V. Conclusion
       Because Chamblee fails to establish pretext with respect to his ADEA
claim and does not assert any cognizable state-law claims, 4 the district court’s
grant of the Defendants’ motion for summary judgment is AFFIRMED.




       4  Chamblee also challenges the district court’s denial of two of his discovery motions.
However, the district court did not abuse its discretion in denying Chamblee’s motion to
strike Knight’s declaration based on the court’s conclusion that Chamblee failed to establish
that the declaration contradicted Knight’s deposition testimony. See Gomez v. St. Jude Med.
Daig Div. Inc., 442 F.3d 919, 927 (5th Cir. 2006) (“Discovery and evidentiary rulings are
reviewed under a deferential abuse of discretion standard.”). The district court also acted
within its discretion to the extent that it did not reopen discovery to allow Chamblee to depose
Farm Bureau’s general counsel because the court concluded that the Defendants were not
“contending that Chamblee was terminated on advice of counsel.” See id.

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