     Case: 13-10719      Document: 00512729395         Page: 1    Date Filed: 08/11/2014




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

                                                                                    FILED
                                      No. 13-10719                            August 11, 2014
                                                                               Lyle W. Cayce
KENT KEAN,                                                                          Clerk


                                                 Plaintiff – Appellant
v.

JACK HENRY & ASSOCIATES, INCORPORATED,

                                                 Defendant – Appellee



                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:12-CV-1159




Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Kent Kean worked at Jack Henry & Associates (“JHA”) as a senior
manager responsible for nine projects. One of those projects—OnBoard—
struggled under Kean’s supervision. After failing to meet specified goals, JHA
transferred some of Kean’s projects to other employees to allow Kean to focus
on bringing OnBoard up to speed. When OnBoard continued to lag behind, JHA
transferred OnBoard, among other projects under Kean’s supervision, to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10719
another employee. Now left with two projects, Kean remarked to JHA, “I may
regret saying this, but the new .Net Xperience resources should report to
[another employee].” Because there was no need to have a senior manager
responsible only for one project and a small portion of another, JHA eliminated
Kean’s position. Following his termination, Kean sued JHA for age
discrimination, arguing that he was terminated because of his age and that
JHA transferred his projects because of his age. After denying two discovery
requests and denying Kean’s Rule 56(d) motion for a continuance of summary
judgment, the district court granted summary judgment for JHA. We AFFIRM.
                           FACTUAL BACKGROUND
      Kent Kean began his career at Jack Henry & Associates in 1999 as a
business analyst. Kean held the position of senior manager from 2003 until
JHA terminated him in 2011. Kean was 53 years old when terminated.
A.    Kean’s Responsibilities as Senior Manager
      In his role as senior manager, Kean managed five employees (Cornell,
Harvey, Lowery, Stevenson, and Blevins) and was responsible for nine projects
(InTouch, iTalk, PassPort, Streamline, OnBoard, Argo, OnTarget, Vertex, and
Core Director Teller).    In 2007, the director of software development, Ron
Moses, became Kean’s supervisor. In 2008, Moses reviewed Kean’s
performance positively, but noted problems with OnBoard. Specifically, Kean
was directed to, among other things, “get OnBoard R&D group stabilized and
operating under a normal cycle” and “deliver the first phase of OnBoard Loans
in Silverlake” in the upcoming year. Kean testified that these directives were
not accomplished in the next year.
B.    The OnBoard Project Continues to Struggle
      OnBoard    repeatedly     missed   scheduled   deadlines   under    Kean’s
management. On April 3, 2008, the targeted delivery date for OnBoard was
the third quarter of 2008, and Moses testified that “all development milestones
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                                 No. 13-10719
on this project were in warning (indicating milestone activity was not meeting
scheduled dates) or off target status.” Kean “was never able to push the product
over the edge into production under his direction.” In Kean’s 2010 performance
review, he received more criticism for his management of the OnBoard project.
Moses dropped Kean’s performance rating and moved the target date for
delivery from November 1, 2009, to September 15, 2010.
C.    Moses Begins Reassigning Kean’s Projects
      In 2010, Moses and Chief Technology Officer, Mark Forbis, promoted
Aaron Blevins (age 35) from development manager to senior manager in order
to take over InTouch, ITalk, and PassPort. This promotion “was structured to
allow Mr. Kean the ability to provide more management focus on the critical
products of ArgoKeys, OnBoard, Streamline, Vertex, and Core Director Teller.”
After Blevins took over PassPort, the project began improving. Blevins
addressed employee issues that were previously unresolved by Kean and
instituted a new client updating system.
D.    Kean and Moses Contemplate Changes on OnBoard
      In 2010, Kean updated Moses on the OnBoard project but did not include
any estimates for completing an upcoming OnBoard Deposit project. Kean
subsequently emailed Moses explaining that the Consumer Real Estate on the
OnBoard project was completed, but Moses later learned that it was not. The
Real Estate delivery for the project missed the January 31, 2011, deadline and
was instead delivered on April 1, 2011. In February 2011, Moses suggested
that Kean make personnel changes to the OnBoard project.
E.    Moses and Forbis Reassign OnBoard to Harvey
      In May 2011, Moses met with Kean and placed him on a Performance
Improvement Plan (“PIP”). Kean acknowledged he had lagged behind on the
OnBoard project. Around this time, JHA promoted Harvey to Senior Manager
of Platform Solutions and assigned him ArgoKeys, OnBoard, and Streamline,
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                                  No. 13-10719
and left Kean to manage Vertex and Core Director Teller. Neither Kean’s pay
nor title were reduced as a result. After Kean’s replacement, Moses noted a
substantial improvement in the OnBoard project.
      In June 2011, Kean’s PIP was extended to September 2011 because of
failings in Vertex. In September 2011, Moses, Kean, and Development
Manager Ben Moran, met about Vertex. In this meeting, Kean informed Moran
and Moses that “I may regret saying this, but the new .Net Xperience resources
should report to Ben.” Because there was no need to have a senior manager
responsible only for the standard Teller releases of Vertex and Core Director
Teller, Moses made the determination to eliminate Kean’s position. Forbis
agreed with Moses’s decision.
F.    JHA Terminates Kean
      Human Resources Representative Faith Westby and Moses met with
Kean and informed him that he was terminated on September 23, 2011. Kean’s
position was eliminated, and his remaining responsibilities were absorbed by
three other individuals who continued to perform their own duties in addition
to Kean’s. Moses encouraged Kean to look for another position within JHA.
G.    Proceedings in the District Court
      Kean sued JHA in 2012, alleging that his termination violated the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621. On June 17,
2013, the district court granted JHA’s motion for summary judgment. Kean
filed a notice of appeal of the summary judgment order on July 8, 2013, and
filed an amended notice of appeal to include the district court’s order overruling
his objections to the Magistrate Judge’s discovery order on July 10, 2013. On
appeal, Kean challenges the district court’s (1) denial of his discovery requests,
(2) denial of his Rule 56(d) motion to deny summary judgment, and (3) grant
of summary judgment for JHA.


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                                 No. 13-10719
                                DISCUSSION
A.    Denial of Kean’s Discovery Requests
      Kean challenges the district court’s refusal to order production of Ron
Moses’s performance appraisals from 2009–2011 and refusal to conduct an in
camera review of a redacted email that JHA produced.
      We “review a district court’s discovery rulings, including the denial of a
motion to compel, for abuse of discretion,” Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812, 817 (5th Cir. 2004), and will not reverse such rulings “unless
arbitrary or clearly unreasonable,” McCreary v. Richardson, 738 F.3d 651, 654
(5th Cir. 2013) (internal quotation marks omitted). “The standard of review
poses a high bar; a district court’s discretion in discovery matters will not be
disturbed ordinarily unless there are unusual circumstances showing a clear
abuse.” Marathon Fin. Ins., Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469
(5th Cir. 2009) (internal quotation marks omitted). “This court will disregard
a district court’s discovery error unless that error affected the substantial
rights of the parties,” and “[t]he burden of proving substantial error and
prejudice is upon the appellant.” Id. (internal quotation marks omitted).
      1.    Moses’s Performance Appraisals from 2009–2011
      Kean originally requested Moses’s performance appraisals from 1999
through the present. The Magistrate Judge found that Moses’s performance
appraisals were irrelevant to Kean’s case from the time Moses became Kean’s
supervisor in 2008 because they had “different job titles, responsibilities, and
supervisors from 2007 to 2011.” But, the judge continued, for some period of
time before 2007, Moses and Kean shared the same or similar position.
Accordingly, the Magistrate Judge concluded that “the time frame requested
by Plaintiff [was] too broad and must be limited” to two years before and the
one year after Moses became Kean’s supervisor. The Magistrate Judge also
ordered JHA to produce “any documents or communications found in Mr.
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                                  No. 13-10719
Moses’s performance appraisal files that relate to Plaintiff and to the decision
to terminate Plaintiff, including any decisions to lessen Plaintiff’s role within
the company or otherwise demote him.” The district court overruled Kean’s
objections and affirmed the Magistrate Judge’s order.
      Kean argues that the lower courts abused their discretion because
“Moses’s performance appraisals for the years 2009 through at least 2011 are
also relevant to pretext” and are also “relevant to determine the veracity of
Forbis’s statements regarding [Moses’s] appraisals and to compare Moses’s
objectives and ratings regarding the OnBoard product and other products to
Kean’s objectives and ratings on Kean’s products.”
      Kean’s first argument—that Moses’s later appraisals are relevant to
showing pretext—is belied by the Magistrate Judge’s order for JHA to produce
“any documents or communications found in Mr. Moses’s performance
appraisal files that relate to Plaintiff and to the decision to terminate Plaintiff,
including any decisions to lessen Plaintiff’s role within the company or
otherwise demote him.” This production order was unbound by the 2005–2008
timeframe limiting the disclosure of Moses’s performance appraisal.
Accordingly, the Magistrate Judge had already ordered any material in
Moses’s 2009–2011 performance appraisals that related to Kean’s allegedly
pretextual termination.
      Kean’s second argument—that the appraisals are necessary to show that
Kean was being singled out for the failures of OnBoard—is unavailing because
Kean and Moses had different positions with respect to OnBoard at the time.
See, e.g., Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (“In
disparate treatment cases, the plaintiff-employee must show ‘nearly identical’
circumstances for employees to be considered similarly situated.”); Gilbert v.
Brookshire Grocery Co., 354 F. App’x 953, 954 (5th Cir. 2009) (unpublished)
(“In order for employees to be considered similarly situated, an employee
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                                  No. 13-10719
alleging discrimination must show that the employees’ circumstances,
including their misconduct, were nearly identical.”). Accordingly, Moses’s
performance appraisals from the time before he became Kean’s supervisor are
irrelevant to Kean’s prima facie case. For those same reasons, appraisals of
two differently situated employees with different responsibilities would not be
probative of pretext.
      While the discovery rules are liberally tilted towards production, “[this]
rule does not, however, permit a plaintiff to ‘go fishing’ and a trial court retains
discretion to determine that a discovery request is too broad and oppressive.”
Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978).
“Moreover, courts have recognized that Title VII plaintiffs do not have an
unlimited ability to delve into their employers’ policy and personnel records,
even when they have alleged a pattern of discrimination.” Smith v. Just for
Feet, Inc., No. Civ. A. 98–2445, 1999 WL 447454, at *2 (E.D. La. 1999)
(Wilkinson, M.J.). Neither the district court nor the Magistrate Judge abused
their discretion by limiting Kean’s requests to three potentially relevant years
of Moses’s performance appraisals and any of Moses’s performance reviews
relating to Kean’s termination or reassignment of his duties.
      2.    Redacted Email from Moses to Forbis
      Kean next argues that the district court erred by refusing to review a
redacted paragraph of an email from Moses to Forbis in camera. Moses sent
the email on September 16, 2011—one week before Kean’s termination. The
email is in large part about Kean. Under the heading “Kent Kean” there are
five paragraphs; all four unredacted paragraphs discuss Kean’s future with
JHA, possible opportunities for Kean, discussions with HR about Kean’s
pending termination, and discussions with Kean about a certain project.
Nonetheless, JHA claimed the redacted paragraph is not relevant. While JHA
agreed to submit the unredacted document for in camera inspection, the
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                                  No. 13-10719
Magistrate Judge found in camera review “neither necessary nor required”
because Kean “put forth no evidence to support [his] theory that the paragraph
contains information related to Plaintiff.” Instead of reviewing the document
in camera, the Magistrate Judge ordered JHA to either provide a sworn
declaration from Moses “stating that the redacted paragraph contains no
information related to Plaintiff or would be otherwise relevant to this case” or
produce an unredacted copy. Moses filed a sworn declaration. The district court
overruled Kean’s objections. Kean argues that this was an abuse of discretion
because the redacted paragraph was relevant and not privileged.
      Appellate review of discovery rulings is exceedingly deferential, and this
Court “will affirm such decisions unless they are arbitrary or clearly
unreasonable.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir.
2000). Moreover, “[t]he decision whether to conduct an In camera inspection is
wholly within the discretion of the district court.” Alford v. CIA, 610 F.2d 348,
349 (5th Cir. 1980) (citing 5 U.S.C. § 522a(g)(3)(A)). In an abundance of caution,
we conducted our own in camera review of the redacted paragraph. See
Childers v. Pumping Sys., Inc., 968 F.2d 565, 572 (5th Cir. 1992) (affirming
state court’s ruling based on our own in camera review of sealed document).
We find that the redacted paragraph does not even mention Kean or his
projects and thus was not relevant to the reassignment of Kean’s duties or his
termination. Accordingly, even if the district court did err in refusing in camera
review, such error did not affect Kean’s substantial rights and is appropriately
disregarded. See Marathon Fin. Ins., 591 F.3d at 469.
      In light of the permissive standard of review, as well as our own review,
we uphold the district court’s refusal to review the redacted paragraph in
camera.




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                                      No. 13-10719
B.     Denial of Rule 56(d) Motion to Deny Summary Judgment
       Kean further asserts that the district court abused its discretion in
denying his motion for denial of summary judgment under Rule 56(d), when
Kean needed more time to review documents JHA belatedly produced. 1
       We review a denial of a Rule 56(d) motion for abuse of discretion. Am.
Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir.
2013). Rule 56(d) provides:
       If a nonmovant shows by affidavit or declaration that, for specified
       reasons, it cannot present facts essential to justify its opposition,
       the court may: (1) defer considering the motion or deny it; (2) allow
       time to obtain affidavits or declarations or to take discovery; or (3)
       issue any other appropriate order.

Rule 56(d) motions are “broadly favored and should be liberally granted.” Raby
v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). The Rule 56(d) movant “must
set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and indicate how the
emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.” Id. If the requesting party “has not diligently pursued
discovery, however, she is not entitled to relief” under Rule 56(d). Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).
       As stated above, Rule 56(d) applies only when a “nonmovant shows by
affidavit or declaration, that, for specified reasons, it cannot present facts
essential to justify its opposition.” Here, Kean argues that that he (1) did not
have discovery in time to depose certain witnesses and (2) did not have time to



       1JHA argues that Kean has not properly appealed the district court’s Rule 56(d) ruling
because Kean did not notice the district court’s May 14, 2013 Order in either its notice of
appeal or amended notice of appeal. Kean argues that he rehashed his Rule 56(d) motion in
a supplemental response to summary judgment. The district court in its order granting
summary judgment again denied Kean’s motion. Kean did notice appeal of the summary
judgment order, which incorporates the Rule 56 order.
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review the voluminous amounts. As to the first argument, if it is true that these
documents had “significant probative value,” then they likely would be
sufficient to create a genuine issue of material fact on their own. Kean would
therefore not have shown that “specified facts, susceptible of collection within
a reasonable time frame, probably exist” or that “the emergent facts, if
adduced, [would] influence the outcome of the pending summary judgment
motion.” Raby, 600 F.3d at 561 (emphasis added). Regardless, the specific
documents that Kean relies on in support of his appeal of the Rule 56(d) order
are documents Kean utilized to attempt to defeat summary judgment.
       As to Kean’s ability to review the voluminous production, the district
court exercised its discretion under Rule 56(d)(3) by extending Kean’s deadline
to respond to the Motion for Summary Judgment by two weeks and instructing
that “should Plaintiff receive additional discovery that he believes is material
and relevant to the issues on summary judgment, he may file a motion for leave
to file a supplemental brief and appendix at such time.” The district court’s
continuance, combined with the option of supplementing his briefing, mitigates
any concern about Kean’s ability to review the belatedly produced documents.
       “A district court has broad discretion in all discovery matters, and such
discretion will not be disturbed ordinarily unless there are unusual
circumstances showing a clear abuse.” Kelly v. Syria Shell Petroleum Dev. B.V.,
213 F.3d 841, 855 (5th Cir. 2000) (internal quotation marks omitted). Hence
the district court did not clearly abuse its discretion when it declined to deny
summary judgment under Rule 56(d) and utilized Rule 56(d)(3) to mitigate any
prejudice to Kean arising from JHA’s untimely productions.
C.     Grant of JHA’s Motion for Summary Judgment
       Finally, Kean maintains that the district court erred in granting JHA’s
motion for summary judgment and dismissing his ADEA claim against JHA.


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       We “review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th
Cir. 2013).
       “Under the ADEA, it is unlawful for an employer ‘to fail or refuse to hire
or 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.’” Machinchick v. PB Power, Inc.,
398 F.3d 345, 349–50 (5th Cir. 2005) (quoting 29 U.S.C. § 623(a)(1)) (internal
quotation marks omitted). Because Kean relies on circumstantial evidence of
discriminatory animus, the burden-shifting analysis of McDonnell Douglass
Corp. v. Green, 411 U.S. 792 (1973), applies to his claims. Machinchick, 398
F.3d at 350.
       Under this framework, Kean carries the initial burden of establishing a
prima facie case of age discrimination. Miller v. Raytheon Co., 716 F.3d 138,
144 (5th Cir. 2013). To establish a prima facie case, “a plaintiff must show that
(1) he was discharged; (2) he was qualified for the position; (3) he was within
the protected class at the time of discharge; and (4) he was either i) replaced
by someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.” Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 378 (5th Cir. 2010) (internal quotation marks omitted).
       If Kean establishes a prima facie case, “the burden shifts to the employer
to   provide   a   legitimate,   nondiscriminatory    reason   for   terminating
employment.” Miller, 716 F.3d at 144.
       “If the employer satisfies this burden, the burden shifts back to the
employee to prove either that the employer’s proffered reason was not true—
but was instead a pretext for age discrimination—or that, even if the
employer’s reason is true, he was terminated because of his age.” Jackson, 602
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F.3d at 378 (citing Gross v. FBL Fin. Servs., Inc., 577 U.S. 167, 180 (2009)). “A
plaintiff may show pretext either through evidence of disparate treatment or
by showing that the employer's proffered explanation is false or unworthy of
credence. But a reason cannot be proved to be a ‘pretext for discrimination’
unless it is shown both that the reason was false, and that discrimination was
the real reason.” Holliday v. Commonwealth Brands, Inc., 483 F. App’x 917,
921 (5th Cir. 2012) (unpublished) (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993)) (internal quotation marks omitted). The Supreme Court
has clarified that ultimately, “[t]o establish a disparate-treatment claim under
the plain language of the ADEA . . . a plaintiff must prove that age was the
‘but-for’ cause of the employer’s adverse decision.” Gross, 577 U.S. at 176.
      We assume arguendo that Kean established a prima facie case under
both of his theories of ADEA liability: (1) JHA discriminated against him by
reassigning his projects to younger employees because of his age, and (2) JHA
terminated him because of his age and replaced him with younger employees. 2
Both parties agree that JHA presented legitimate non-discriminatory reasons
both for reassigning some of Kean’s projects to Blevins and Harvey and for
ultimately terminating Kean. Hence we limit our inquiry to whether JHA’s
stated reasons for reassigning his projects and for terminating him were a
pretext for age discrimination. See, e.g., Golbert v. Saitech, Inc., 439 Fed. App’x
304, 306 (5th Cir. 2011) (analyzing pretext after assuming arguendo that
plaintiff made out a prima facie case of discrimination, and finding defendant
offered a nondiscriminatory reason for a termination); Patel v. Midland Mem’l
Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002).



      2  Because we resolve this case straightforwardly with the following analysis, we do
not reach the questions of (1) whether reassignment of projects to younger employees
constitutes an adverse employment action, and (2) whether an employee’s position must be
replaced by a new hire to constitute an adverse employment action under ADEA.
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                                No. 13-10719
      1.    Reassignment of Projects
      JHA offers legitimate, nondiscriminatory reasons for reassigning some
of Kean’s projects to Blevins and Harvey. Specifically, Kean’s performance on
the OnBoard project resulted in delays and the need for management changes.
Initially, this required assigning some of Kean’s projects to Blevins so that
Kean could “provide more management focus on the critical products of
ArgoKeys, OnBoard, Streamline, Vertex, and Core Director Teller.”
Eventually, Moses transferred OnBoard to Harvey, believing he would do a
better job with the product. JHA testified that Kean’s former projects began
improving after transferring them to Harvey and Blevins.
            a. Transfer of Project to Blevins
      Kean argues, however, that JHA’s reasons for reassigning some of his
projects to Blevins were pretext for age discrimination because (1) he was
experienced and performing well, (2) he was more experienced than Blevins,
(3) he was not the problem with OnBoard, and (4) he had not experienced
problems with his other projects. None of these arguments squarely addresses
JHA’s proffered legitimate nondiscriminatory reason for transferring projects
to Blevins, namely that OnBoard was struggling, and that with less projects
under his supervision Kean could focus more on OnBoard.
      Moses testified, for instance that “OnBoard had been struggling since
2009, and I, as Mr. Kean’s supervisor, felt that I had to make a personnel
change in order to prevent further delays on the OnBoard project.” OnBoard,
Moses explained, “struggled for years without delivery despite the significant
financial investment being made by Jack Henry. From 2008 to 2011, JHA
invested over $6,000,000 in personnel costs . . . into the OnBoard lending
project.” JHA lost $700,000 from cancelled and terminated contracts due to the
delayed OnBoard project.


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                                  No. 13-10719
      Kean’s arguments for pretext can be reduced to his general disagreement
with JHA’s assessment of his performance. This Court has held that “[m]erely
disputing [an employer’s] assessment of [a plaintiff’s] work performance will
not necessarily support an inference of pretext.” Evans v. City of Hous., 246
F.3d 344, 355 (5th Cir. 2001) (alterations in original). While Kean may have
had a history of high performance and success on other projects, he does not
dispute that the OnBoard project suffered from numerous delays under his
supervision. That Kean was more experienced than Blevins also does not
undercut JHA’s reasoning that Kean needed more time to focus on OnBoard.
Finally, Kean’s assertions that the struggles with OnBoard “were group
problems” does not impact the credibility of JHA’s decision to give him more
time to focus on the project. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d
318, 325 (5th Cir. 2002) (“Merely disagreeing with an employer’s negative
performance assessment is insufficient to show pretext.”).
      Because Kean’s arguments do not undermine the credibility of JHA’s
stated reasons for transferring his projects to Blevins, Kean has not created a
fact issue as to pretext. See Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
478 (5th Cir. 2005) (“Employment discrimination laws are not intended to be a
vehicle for judicial second-guessing of business decisions, nor . . . transform the
courts into personnel managers. . . . Management does not have to make proper
decisions, only non-discriminatory ones.” (internal quotation marks omitted)).
            b. Transfer of Projects to Harvey
      Kean argues that JHA’s stated reasons for transferring his projects
(including OnBoard) to Harvey are pretext for age discrimination because (1)
Kean didn’t cause the problems with OnBoard, (2) Forbis and Moses considered
consolidating   Kean’s    and   Harvey’s     positions   into    one   position,   (3)
implementation of a performance improvement plan was intended to prevent
Kean from retaining his position, (4) Harvey’s plan for OnBoard is similar to
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Kean’s, and (5) Moses asked Kean what his age was around the same time that
his projects were transferred.
      Again, most of Kean’s arguments do not directly contradict JHA’s
reasons for reassigning his projects, including OnBoard, to Harvey. JHA
reassigned these projects so that “Mr. Kean [could] focus specifically on Jack
Henry’s Teller products and drive the upcoming Vertex Xperience project” as
well as “to provide new management direction for the OnBoard Lending
project.” The only new argument Kean presents that would be relevant to
pretext is Moses’s asking Kean what his age was around the time of his
transfer. Moses’s question to Kean, however, does not reflect discriminatory
animus. As discussed in more detail below, Moses’s question does not create a
fact issue on pretext for either the reassignment or termination.
      2.    Termination
      JHA maintains that it terminated Kean’s position because the
department was to be reorganized and his position was to be eliminated.
Specifically, Moses made the decision after a September 2011 meeting between
Moses, Kean, and Development Manager Ben Moran, concerning Vertex. Kean
informed Moran and Moses that “I may regret saying this, but the new .Net
Xperience resources should report to Ben.” In light of Kean’s suggestion, Moses
realized that there was no need to have a senior manager responsible only for
the standard Teller releases of Vertex and Core Director Teller. Accordingly,
Moses made the determination to eliminate Kean’s position. Kean does not
dispute that this is a legitimate, nondiscriminatory reason.
      Kean primarily argues that JHA’s reasoning for terminating him was
pretextual because JHA terminated him for having too few responsibilities,
and that “Kean had too few responsibilities because JHA had reassigned them
to younger employees; and JHA does not have credible reasons for reassigning
the positions to the younger employees.” Kean’s argument necessarily assumes
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                                 No. 13-10719
the validity of JHA’s proffered reason for his termination: that it no longer
needed to have a senior manager responsible for only a few projects. As the
district court noted, “Plaintiff does not . . . provide any evidence to show that
his position was justified with the limited responsibilities remaining beneath
his management.” Accordingly, Kean’s attack on the allegedly pretextual
reassignments does not refute the validity of JHA’s proffered reasons for
termination. Instead, Kean’s arguments about the reassignment of his projects
are more relevant to his reassignment claim—which, as discussed above, lacks
merit.
      Kean argues that Moses’s inquiry as to his age and Harvey’s statement
that Moses was “out to get” Kean serve as circumstantial evidence of pretext.
This Court has previously said that:
      Where a plaintiff offers remarks as circumstantial evidence
      alongside other alleged discriminatory conduct, however, we apply
      a more flexible two-part test. In that circumstance, a plaintiff need
      only show (1) discriminatory animus (2) on the part of a person
      that is either primarily responsible for the challenged employment
      action or by a person with influence or leverage over the relevant
      decisionmaker.
Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (internal citations
omitted).
      Both comments fail under Reed. Moses asked Kean about his age on
April 19, 2011—a couple of months before Kean’s termination in September
2011. Further, the question is facially-neutral; it does not reflect
discriminatory animus or animus at all. See Berquist v. Wash. Mut. Bank, 500
F.3d 344, 352 (5th Cir. 2007) (comment not evidence of age discrimination
because “Martinez made no mention of replacing older employees with younger
recruits or directly hiring younger employees into leadership positions” and
collecting cases of discriminatory comments); cf. Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 958 n.7 (5th Cir. 1993) (discussion of retirement package
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                                  No. 13-10719
during termination including comment that “I hope when I get to your age,
somebody does the same thing for me” were facially-neutral remarks); id. at
n.7 (“One district court has stated poignantly, ‘To assert that an employer is
incapable of ever mentioning or noting an employee’s age in a discharge
situation would be to work the absurd result that an employer could not discuss
severance packages and pension calculations with a departing employee.’”
(quoting Perry v. Prudential-Bache Sec., 738 F. Supp. 843, 853 (D.N.J. 1989)).
      Equally, Harvey’s comment that Moses was “out to get” Kean does not
relate to Kean’s age. Additionally, the statement is by Harvey, not Moses, who
is the relevant decisionmaker. Reed, 701 F.3d at 441. Both of these comments
are insufficient to show the reason given was pretext for age discrimination.
Indeed, Kean concedes that “[t]he statements may not be sufficient in
themselves,” and he does not provide authority for the proposition that the two
statements combined create an issue of fact on pretext.
      In sum, aside from Moses’s inquiry into Kean’s age and the fact that
Kean’s responsibilities were assumed by younger employees, there is nothing
to combat JHA’s non-discriminatory reason for reassigning Kean’s projects and
subsequently terminating him: under Kean’s supervision, the OnBoard project
floundered and, after Kean’s projects were reassigned, Kean’s position was
eliminated as superfluous. See Crawford v. Formosa Plastics Corp., La., 234
F.3d 899, 902–03 (5th Cir. 2000) (“A mere scintilla of evidence of pretext does
not create an issue of material fact in all cases.”). Kean has not created a fact
issue as to pretext, and therefore cannot meet his ultimate burden to “prove
that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross, 557
U.S. at 176; see also Fried v. LVI Servs., Inc., 500 F. App’x 39, 41 (2d Cir. 2012)
(unpublished) (“On this record, we are compelled to conclude . . . that no
reasonable juror could find that LVI’s nondiscriminatory reason for


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                                 No. 13-10719
terminating Fried was a pretext for age discrimination and that ‘but for’ Fried’s
age, he would not have been terminated.”).
                                CONCLUSION
      For the above stated reasons, we AFFIRM the district court’s denial of
his discovery requests, denial of his Rule 56(d) motion to deny summary
judgment, and grant of summary judgment for JHA.




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