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                          REVISED March 22, 2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40710                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 26, 2015
PETE KELLER, JR.,                                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

COASTAL BEND COLLEGE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 2:14-CV-7


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Pete Keller sued his former employer, Coastal Bend College, for
violations of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1),
and Title VII, 42 U.S.C. § 2000e-2.            The district court granted summary
judgment in favor of Coastal Bend College. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40710
                          FACTS AND PROCEEDINGS
       Pete Keller (“Keller”), a fifty-two-year-old Hispanic male, worked for
Coastal Bend College’s (“the College”) maintenance department as a carpenter
and painter for approximately twenty-two years before his termination in July
2013. In June 2013, Keller was assigned to paint the College’s day care center.
After work commenced as scheduled, Kathleen Patton, the College’s Dean of
Administration, and Mike Slaughter, the College’s Physical Plant Director and
Keller’s direct supervisor, complained about Keller’s poor workmanship, the
length of time it took him to complete certain assigned tasks, and his poor
attitude. Upon learning of these complaints, Dr. Beatriz Espinoza, the
College’s President, authorized Ms. Patton and Mr. Slaughter to terminate
Keller’s employment on July 22, 2013. Keller’s position was then replaced by
Lynn Harrison, a fifty-one-year-old, Caucasian male. 1
       In August 2013, Keller filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that the College
discriminated against him on the basis of age and race. The EEOC dismissed
the charge and declined to take any further action. Keller then filed a
complaint in the Southern District of Texas, and in response, the College filed
a motion for summary judgment on October 22, 2014. Magistrate Judge Jason
Libby issued a memorandum and recommendation to grant the College’s
motion, overruling Keller’s evidentiary objections, and sustaining the College’s
objections to Keller’s sham declaration testimony. The district court adopted
the magistrate’s findings and recommendation to grant summary judgment on
Keller’s claim under the Age Discrimination in Employment Act (“ADEA”),
reaffirming that Keller could not establish a prima facie case of age



       1The actual age of the replacement at the time of hiring is disputed. Regardless, the
replacement employee was either the same age or one year younger than Keller.
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                                 No. 15-40710
discrimination. In addition, after conducting its own evidentiary review, the
district court granted summary judgment with regard to Keller’s race
discrimination claim and found that despite the existence of a prima facie case
under Title VII, Keller failed to carry his burden to prove pretext under the
McDonnell Douglas framework.
      Keller appeals the district court’s ruling as to his age and race
discrimination claims, and he asks this court to reverse the district court’s
order and remand the matter for a jury trial on the merits. Keller also presents
several evidentiary objections on appeal. First, Keller alleges that the district
court erred by including Dr. Espinoza’s affidavit in the summary judgment
record in violation of Federal Rule of Civil Procedure 37(c). Second, he contends
that the district court erred by not sustaining his hearsay objections to Dr.
Espinoza’s affidavit. Third, he argues that the district court should have
excluded all of the College’s summary judgment evidence because it was not
properly authenticated by a business records affidavit.
                                DISCUSSION
      I.    Evidentiary Rulings
            a. Standard of Review
      Although this court generally reviews a grant of summary judgment de
novo, when the trial court’s evidentiary rulings are also at issue, we review
those rulings for abuse of discretion. See Tex. A&M Research Found. v. Magna
Transp., Inc., 338 F.3d 394, 401 (5th Cir. 2003); Christophersen v. Allied-Signal
Corp., 939 F.2d 1106, 1109 (5th Cir. 1991) (“[A]n appeal of a summary
judgment presenting evidentiary issues raises two levels of inquiry. At the first
level, we review the trial court's evidentiary rulings, which define the summary
judgment record, and we give these rulings their due deference. At the second
level, with the record defined, we review the trial court's summary judgment


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                                  No. 15-40710
decision de novo”), abrogated on other grounds by Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993).
      Further, when a party fails to file a written objection to the proposed
findings, conclusions, and recommendation of a magistrate judge, this court
reviews the district court’s adoption of any finding, conclusion, or
recommendation for plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds.
A reversal under plain error review occurs only when, inter alia, this court
finds “an error that is clear and obvious.” Rushing v. Kansas City Southern Ry.,
185 F.3d 496, 506 (5th Cir. 1999), superseded by statute on other grounds.
            b. Federal Rule of Civil Procedure 37(c) and the Espinoza
               Affidavit
      Because the College did not disclose Dr. Espinoza as a witness, Keller
argues that the Espinoza affidavit should not be included in the summary
judgment record under Federal Rule of Civil Procedure 37(c) (“Rule 37”).
Pursuant to Rule 37, the district court determined that Dr. Espinoza’s affidavit
could be admitted into evidence if the failure to disclose her identity was found
to be harmless. The district court correctly found that “any prejudice to
Plaintiff caused by Defendant’s failure to disclose Espinoza as a witness c[ould]
be cured by deposing Espinoza” and allowed both parties to take her deposition
and supplement the summary judgment record. See Tex. A&M, 338 F.3d at 402
(citation omitted). Keller urges this court to enforce Rule 37 as written, but
Rule 37 explicitly states that “[i]f a party fails to provide information or [the]
identity of a witness as required . . . the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1) (emphasis added). Accordingly, we find that the district court did
not abuse its discretion.
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                                       No. 15-40710
              c. Hearsay and the Espinoza Affidavit
       Keller next argues that the district court erred in overruling his
evidentiary objection to the Espinoza affidavit because it is not based on
personal knowledge and is “riddled with inadmissible hearsay.” 2 The district
court found Keller’s argument regarding hearsay unpersuasive and noted that
Dr. Espinoza’s affidavit is not evidence of the truth of the allegations against
Keller, but is evidence of Dr. Espinoza’s state of mind when she made a good
faith reliance on a subordinate’s allegations regarding Keller’s work
performance.
       When “an employer discharges an employee based on the complaint of
another employee, the issue is not the truth or falsity of the allegation, but
‘whether the employer reasonably believed the employee’s allegation and acted
on it in good faith.’” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374,
379 (5th Cir. 2010) (citation omitted); see also Nobles v. Cardno, Inc., 549 F.
App'x 265, 268 (5th Cir. 2013) (relying on Jackson and holding that when
complaints from other employees are offered to show the reasons for an
employment action, the allegations are not hearsay). Accordingly, because Dr.
Espinoza’s state of mind is the relevant factor, the district court did not abuse
its discretion by admitting Dr. Espinoza’s affidavit into the summary judgment
record.




       2 Keller also objects on appeal to the magistrate’s finding that Dr. Espinoza had
personal knowledge regarding the interview process for selecting Keller’s replacement after
his termination. We review for plain error because Keller failed to object below. Douglass, 79
F.3d at 1428-29. We have held that personal knowledge can stem from the affiant’s “sphere
of responsibility” as a corporate employee. DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th
Cir. 2005). Assessing only for plain error, because Dr. Espinoza was found to have the
requisite knowledge based on her position as the president of the College, we do not disturb
the magistrate’s finding.
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                                       No. 15-40710
              d. Summary Judgment Documents
       Lastly, Keller objects on appeal to the inclusion of all documents
attached to the College’s motion for summary judgment, except for his own
deposition testimony, because the documents are not authenticated “by a
proper business record affidavit.” The magistrate found that all of the exhibits
were properly authenticated either by Dr. Espinoza in her affidavit or by Keller
in his deposition. 3       Because Keller failed to object to the magistrate’s
authentication finding, this court’s review is limited to plain error. Douglass,
79 F.3d at 128-29 (5th Cir. 1996).
       Federal Rule of Evidence 901 provides for methods of authentication.
Fed. R. Evid. 901(b) (listing multiple methods of authentication); see also In re
McLain, 516 F.3d 301, 308 (5th Cir. 2008) (noting that “Rule 901 does not limit
the type of evidence allowed to authenticate a document. . . . [but] merely
requires some evidence which is sufficient to support a finding that the
evidence in question is what its proponent claims it to be”) (citation omitted)).
Rule 901 does not preclude authentication by affidavit or deposition. See Rust
v. Bank of Am., N.A., 573 F. App’x 343, 345 (5th Cir. 2014) (allowing a
document to be authenticated under Rule 901(b)(1) by an affiant with
knowledge swearing the document to be true and correct); Fed. R. Evid. 901(b).
Accordingly, we conclude that the district court did not plainly err by
considering all documents submitted by the College in relation to its motion
for summary judgment.




       3 Dr. Espinoza testified in her affidavit that exhibits B-1, B-2, and B-3 were true and
correct copies of documents maintained by the College. Exhibits A-1 through A-10 were
discussed and authenticated by Keller during his deposition.
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                                     No. 15-40710
      II.    Summary Judgment
             a. Age Discrimination
      The district court adopted both the magistrate’s conclusion that Keller
failed to establish a prima facie case for age discrimination under the ADEA
and the magistrate’s recommendation that summary judgment be granted
with regard to Keller’s age discrimination claim. We review for plain error
because     Keller   did    not   object   to    the   magistrate’s     conclusion     and
recommendation. Douglass, 79 F.3d at 1428-29.
      Under the ADEA, an employer cannot “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.” 29 U.S.C. § 623(a)(1). In order to establish a prima facie case
of age discrimination under the ADEA the plaintiff must establish he (1) was
within a protected class; (2) was qualified for the position; (3) suffered an
adverse employment decision; and (4) 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-W. Packaging Corp., 602 F.3d
374, 378 (5th Cir. 2010).
      The magistrate found that though Keller could prove the first three
requirements for a prima facie case, he could not fulfill the fourth requirement
because he did not submit “any competent evidence” to show that he was
discharged because of his age. At the time Keller was terminated, he was 52
years old. Keller’s replacement was 51 or 52 at the time of hiring. The
magistrate found this small distinction in age unpersuasive, stating that,
“[c]ontrary to Plaintiff’s argument that ‘as long as the replacement is younger,
it does not matter how much younger,’ both Supreme Court and Fifth Circuit
precedent establish otherwise.” See Leal v. McHugh, 731 F.3d 405, 411 (5th
Cir. 2013) (citation omitted); see also Earle v. Aramark Corp., 247 F. App’x 519,
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523 (5th Cir. 2007) (finding a four-year age difference insufficient to show a
prima facie case of age discrimination) (citation omitted).
      Nevertheless, this court has also held that “regardless of how much
younger [a plaintiff-employee’s] replacement is, a plaintiff in the protected
class may still establish a prima facie case by producing evidence that he was
‘discharged because of his age.’” Rachid v. Jack In The Box, Inc., 376 F.3d 305,
309 (5th Cir. 2004) (citations omitted). Keller has failed to present any evidence
showing that he was discharged because of his age other than his contention
that he was one year older than his replacement. Standing alone, this
argument is insufficient. Therefore, the district court did not plainly err in
adopting the magistrate’s conclusion and recommendation.
            b. Race Discrimination
      The district court granted summary judgment in favor of the College on
Keller’s race discrimination claim. This court reviews a district court’s 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) (citation omitted).
Summary judgment is appropriate “if the movant shows that 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(a). To prevail on a race discrimination
claim a plaintiff must present direct or circumstantial evidence that race was
a motivating factor for an adverse employment action. Nichols v. Loral Vought
Sys. Corp., 81 F.3d 38, 40-41 (5th Cir. 1996). Because Keller relies on
circumstantial evidence—his own “gut feeling”—that the College fired him
because of his race, this court evaluates his claims under the McDonnell




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Douglas burden-shifting framework. 4 McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425
(5th Cir. 2000).
       Under the McDonnell Douglas framework, the plaintiff-employee must
first establish a prima facie case of discrimination. Byers, 209 F.3d at 425. Once
a prima facie case is established, the employer-defendant must provide a
legitimate, nondiscriminatory reason for the employee’s termination. Id. If the
employer gives an adequate, nondiscriminatory reason for the employee’s
termination, the burden shifts back to the plaintiff who “must then prove, by a
preponderance of the evidence, that the proffered reason was mere pretext for
discrimination.” Id. The College did not challenge Keller’s ability to establish
a prima facie case of race discrimination; therefore, our analysis begins with
whether the College carried its burden to articulate a legitimate
nondiscriminatory reason for discharging Keller. See id.
       The College has articulated three reasons for Keller’s discharge: his poor
workmanship, the delay in time it took him to complete the renovation project,
and his poor attitude. Dr. Espinoza acknowledged these reasons in her
affidavit, and in his deposition, Keller himself recognized that Ms. Patton and
Mr. Slaughter were frustrated with his work product and untimeliness. Keller


       4 During his deposition Keller stated that he did not have any evidence that Patton or
Slaughter bore any race-based animus toward him. It was only after Keller filed a charge
with the EEOC and a complaint in the Southern District of Texas that he contended
Slaughter called him a “slow Mexican worker” and “poison.” This court does not allow a party
to manufacture an issue of fact in an affidavit that conflicts with prior deposition testimony
without a satisfactory explanation. See Doe ex rel. Doe v. Dallas Independent School Dist.,
220 F.3d 380, 286 (5th Cir. 2000) (“If a party who has been examined at length on deposition
could raise an issue of fact simply by submitting . . . [an] affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.”). Notably, Keller has offered no explanation for why his
testimony has changed. Therefore, the district court did not abuse its discretion in excluding
Keller’s later statement. Having determined that the evidence the College submitted with
their motion for summary judgment is admissible, and Keller’s sham affidavit is not, we are
left with Keller’s subjective belief that he was terminated on the basis of his age and race.
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argues that Espinoza’s affidavit is “conclusory,” and that “no jury would accept
this . . . testimony.” However, the burden on the defendant at this stage is one
of production, not persuasion. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 257 (1980) (“[An] employer need only produce admissible evidence which
would allow the trier of fact rationally to conclude that the employment
decision had not been motivated by discriminatory animus.”). For these
reasons, we find that the college has carried its burden to articulate a
legitimate, nondiscriminatory reason for discharging Keller.
      In response, Keller puts forth several arguments to prove that the
reasons proffered by the College for his termination are mere pretext. The
arguments include: (1) Dr. Espinoza did not conduct an individual
investigation into Keller’s behavior or past employment history; (2) the “cat’s
paw” theory of discrimination should be imputed to Dr. Espinoza; (3) the
College’s failure to follow an alleged progressive discipline policy proves
pretext; and (4) Keller was treated unfairly when he was the only one blamed
for the poor workmanship and delay of the renovation project. To show pretext
by a preponderance of the evidence, this court requires a plaintiff to present
evidence supporting an inference that the employer acted in bad faith or was
motivated by discriminatory animus when terminating an employee. See
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).
      First, Keller’s contentions that Dr. Espinoza was required to engage in
an independent investigation and review his previous employment evaluations
when making an employment decision are not evidence of pretext because
inaction does not show bad faith or discriminatory animus. See Sandstad, 309
F.3d at 899 (holding that a defendant is “entitled to be unreasonable so long as
it does not act with discriminatory animus” and that “[m]erely disputing [the
defendant’s] assessment of his performance will not create an issue of fact.”).
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                                       No. 15-40710
Second, Keller’s “cat’s paw” analysis fails because he did not submit evidence
sufficient to establish the two required conditions: “(1) that a co-worker
exhibited discriminatory animus, and (2) that the same co-worker ‘possessed
leverage, or exerted influence, over the titular decisionmaker.’” Roberson v.
Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (citations omitted). Third,
although this court has held that an employer’s failure to follow its own
progressive discipline policy can be evidence of pretext, Keller has failed to put
forth any evidence establishing that the College used such a policy. 5 See
Machinchick v. PB Power, Inc., 398 F.3d 345, 354 (5th Cir. 2005).
       Finally, Keller has not shown that similarly situated employees, outside
of his protected class were treated differently. Several of the employees Keller
compares himself to had different job titles and responsibilities. See Sandstad,
309 F.3d at 901 (noting that to establish pretext, a court must “compare the
treatment of other employees whose conduct is ‘nearly identical’ to the
plaintiff’s conduct and who were treated more favorably than the plaintiff”
(citation omitted)). In addition, the remaining employees that worked on the
day care center are not proper comparators because they are Hispanic. See
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (noting “[w]e
have held ‘that in order for a plaintiff to show disparate treatment, she must
demonstrate that the misconduct for which she was discharged was nearly
identical to that engaged in by a[n] employee [not within her protected class]
whom [the company] retained.’” (alternations in original) (citation omitted)).



       5 Dr. Espinoza initially referred to a “progressive discipline policy” in her deposition
testimony; however, she described a policy that does not equate to Keller’s characterization
of the same policy as one that involves “counseling sessions followed by an oral or verbal
reprimand, a written reprimand, a suspension and/or probation, and then termination.”
Appellant’s Brief at 43 (citing Rogers v. City of Fort Worth, 89 S.W.3d 265, 281 (Tex. App.
2002) (noting the general characteristics of a progressive discipline policy)).


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In conclusion, Keller cannot establish pretext on any of the theories that he
puts forth, and thus, his race discrimination claim fails.
                                   CONCLUSION
      For the foregoing reasons, the decision of the district court granting
summary judgment is AFFIRMED.




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