     Case: 16-60533      Document: 00513932677         Page: 1    Date Filed: 03/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit
                                    No. 16-60533                                    FILED
                                  Summary Calendar                            March 30, 2017
                                                                               Lyle W. Cayce
JACK S. CHESTER,
                                                                                    Clerk


              Plaintiff - Appellant

v.

DIRECTV, L.L.C.,

              Defendant - Appellee


                   Appeal from the United States District Court
                         Southern District of Mississippi
                             USDC No. 3:13-CV-111


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Jack Chester appeals the district court’s summary
judgment in favor of Defendant-Appellee DIRECTV, L.L.C. (“Directv”). For
the following reasons, we affirm.
                          I. Facts & Procedural History
       From 2003 through 2008, Chester worked as an installer and technician
for a company in Mississippi named Bruister and Associates, Inc. (“Bruister”).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60533     Document: 00513932677     Page: 2   Date Filed: 03/30/2017



                                  No. 16-60533
In 2008, Bruister was acquired by Directv. After the acquisition, Directv hired
Chester and a year later promoted him to the position of field supervisor. As
field supervisor, Chester was responsible for supervising a team of installers
and technicians and was required to ensure that the team maintained certain
target numbers associated with performance and service.
      In April 2011, Directv conducted an annual site survey that revealed
that the Jackson office, where Chester was employed, had scored below several
other sites. One measurement of performance Directv uses is called Service on
Service (“SOS”). SOS refers to repeat service following an installation or repair
within a certain timeframe. SOS is measured in 30, 60, and 90-day increments.
SOS targets are 1% or below for 30 days, 1.5% or below for 60 days, and 2% or
below for 90 days. The concept behind the SOS target metrics is that customers
will be less satisfied if they are required to make repeated calls after receiving
initial service or repair for a given problem.
      Because Chester’s numbers exceeded the target percentages, he received
a disciplinary write-up in March 2012. Additional reasons for the write-up
included Chester’s team’s failure to meet “standards for completion rate, new
install completion rate, and quality assurance percentages.” In April 2012,
another site survey was conducted that again revealed substandard
performance rates by Chester’s team. As a result, Directv’s Regional Vice
President Tim Cole met with four field supervisors, including Chester, and
Chester’s direct supervisor, branch manager Lee Branning. Cole expressed his
dissatisfaction with the off-target percentages and gave Chester and the other
field supervisors 30 days to make improvements.
      A few months later, Chester “wrote up” an office administrator after the
two had a disagreement about equipment needed for repairs. Soon thereafter,
Branning and Mike McKelvaine of Human Resources called Chester and
explained that he did not have the authority to issue a write-up on the office
                                        2
     Case: 16-60533       Document: 00513932677         Page: 3    Date Filed: 03/30/2017



                                      No. 16-60533
administrator. Chester was then issued a write-up because his correspondence
regarding the office administrator was deemed unprofessional. The write-up
also included a reference to Chester’s continued failure to meet Directv’s target
percentages relating to performance. 1 Chester was informed that this was his
“final warning.”
       In late 2012, Chester and the other field supervisors again met with
Branning and McKelvaine, as well as Chuck Tomlinson, another member of
upper management, to discuss performance and productivity rates. During
these meetings, each field supervisor met individually with the management
team. During Chester’s meeting, he was questioned about his technicians’
performance, including the best and worst performers that he supervised.
According to Directv, Chester incorrectly answered several inquiries, revealing
that he was unaware as to who performed the best and the worst on the team
he supervised.        Consequently, the management team determined that
Chester’s previous receipt of discipline, write-ups, and warnings, his continued
substandard performance rates, and his lack of knowledge about his own team
warranted his termination from the company.
       Following his termination in September 2012, Chester filed a complaint
with the Equal Employment Opportunity Commission and later filed suit in
federal court. In the district court proceedings, Chester alleged claims of age
discrimination against Directv arguing that, although he was purportedly fired
due to his off-target performance rates and disciplinary history, the other
younger field supervisors who had similarly failed to meet the target SOS rates
and received discipline were not fired. 2 In response, Directv argued that


       1  Chester’s team’s SOS numbers at this time were: (1) 2.6% for 30 days (target was 1%
or below); (2) 4.7% for 60 days (target was 1.5% or below); and (3) 6.6% for 90 days (target
was 2% or below).
        2 When Chester was terminated, he was 59 years old. At the time, one of the other

three field supervisors was 43-years-old and two were under the age of 40.
                                             3
    Case: 16-60533     Document: 00513932677      Page: 4   Date Filed: 03/30/2017



                                   No. 16-60533
Chester was fired due to his continued failure to meet target SOS rates after
receiving several warnings, his previous receipt of discipline, and his lack of
knowledge about the performance of the technicians he supervised—not
because his age. Directv filed a motion for summary judgment on grounds that
Chester had failed to establish a prima facie case of age discrimination. The
district court rendered summary judgment in favor of Directv holding that
Chester had failed to establish that his age was the “but-for” cause of his
termination.
      In its reasons for judgment the district court noted Chester’s record of
substandard performance within the company and the multiple warnings he
received prior to his termination, his unprofessional conduct toward the office
administrator, his failure to provide evidence that he gave accurate answers
regarding his technicians’ performance rates during his final meeting with
upper management, and Directv’s subsequent firing of one of the younger field
supervisors a few months after Chester’s termination. The district court also
referenced the fact that Directv hired Chester at the age of 56 and promoted
him a year later, after the company acquired Bruister, suggesting that his age
was not a factor in their consideration of whether to employ him. Chester filed
this appeal.
                           II. Standard of Review
      “We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” Hagen v. Aetna Ins. Co.,
808 F.3d 1022, 1026 (5th Cir. 2015). Summary judgment is appropriate if the
record evidence shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Robinson v. Orient Marine Co., 505 F.3d 364, 366 (5th Cir. 2007).
“Unsubstantiated     assertions,   improbable     inferences,   and   unsupported
speculation are not sufficient to defeat a motion for summary judgment.” See
                                        4
    Case: 16-60533     Document: 00513932677      Page: 5   Date Filed: 03/30/2017



                                  No. 16-60533
Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). “[R]easonable
inferences are to be drawn in favor of the non-moving party.” Robinson, 505
F.3d at 366. “A panel may ‘affirm summary judgment on any ground supported
by the record, even if it is different from that relied on by the district court.’”
Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012).
                                III. Discussion
      On appeal, Chester argues that the district court erred in holding that
he failed to provide evidence of age discrimination. Chester avers that “he can
show pretext and that [Directv] has not offered a legitimate non-discriminatory
reason for terminating [him].” We disagree.
      “Under the Age Discrimination in Employment Act (ADEA), an employer
may not ‘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.’” Phillips v. Leggett & Platt,
Inc., 658 F.3d 452, 455 (5th Cir. 2011) (quoting 29 U.S.C. § 623(a)(1)). To
establish a prima facie case of age discrimination under the ADEA, a plaintiff
must show that he was: (1) terminated; (2) qualified for the position from which
he was terminated; (3) within the protected age group at the time of
termination; and (4) replaced by someone younger or outside the protected
class, or otherwise discharged because of his age. Phillips, 658 F.3d at 455. To
ultimately succeed on a claim of age discrimination, “[a] plaintiff must prove
by a preponderance of the evidence. . . that age was the ‘but-for’ cause of the
challenged employer decision.” Moss v. BMC Software, Inc., 610 F.3d 917, 922
(5th Cir. 2010).
      In the proceedings below, the district court noted that neither party
disputed that Chester had proven the first three of the four elements required
to establish a prima facie case of age discrimination under the ADEA, i.e., he
was terminated, he was qualified for the position from which he was
                                        5
    Case: 16-60533    Document: 00513932677     Page: 6    Date Filed: 03/30/2017



                                 No. 16-60533
terminated, and he was within a protected age group at the time of
termination.   See Phillips, 658 F.3d at 455.      The parties are in dispute,
however, as to whether Chester has shown the fourth element—that he was
replaced by someone younger or outside of the protected class or, alternatively,
that he was otherwise discharged because of his age. Id.
      Chester advances on appeal that he proved the final element of his prima
facie case by providing evidence that the younger field supervisors had similar
off-target SOS rates and disciplinary histories but were not fired like he was;
he does not claim that he was replaced by a younger employee. Our review of
the record reveals that, although some of the other field supervisors did receive
write-ups for off-target SOS rates and performance deficiencies, there is no
evidence that any of the other supervisors received disciplinary action for
unprofessional conduct similar to that of Chester’s toward the office
administrator. Further, there is no evidence that any other field supervisor
incorrectly answered questions regarding the performance levels of the
technicians that he supervised like Chester allegedly did during his interview
with upper management. So although it may be true that the other field
supervisors had off-target SOS scores like Chester, a more reasonable reading
of the evidence suggests that the combination of Chester’s continued
substandard work performance, worsening SOS rates after multiple warnings,
his documented unprofessional conduct, his receipt of discipline, and his
demonstrated lack of knowledge about the technicians he supervised resulted
in his being assessed with an overall worse job performance than the other
supervisors. Moreover, as the district court pointed out, one of the other
“younger” field supervisors was fired a few months after Chester due to his
failure to improve his SOS scores, again suggesting that Directv based its
decision to terminate Chester—and the younger supervisor—on their poor job
performances rather than their ages.        All of these details indicate that
                                       6
    Case: 16-60533     Document: 00513932677     Page: 7   Date Filed: 03/30/2017



                                  No. 16-60533
Chester’s age was not a factor, much less a deciding factor, in Directv’s decision
to fire him.
      Citing Mayberry v. Vought Aircraft Company, Chester argues in the
alternative that he did not commit the alleged violation for which he was
terminated, i.e., he did not incorrectly answer the questions about the
performance rates of the technicians he supervised during his meeting with
upper management. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090
(5th Cir. 1995) (providing that “a prima facie case may be established by
showing that the plaintiff did not violate the work-rule for which he was
disciplined.”). This argument also fails. As the district court reasoned, Chester
failed to present any specific evidence that he accurately answered the
questions regarding his team’s performance. Rather, he simply stated that he
answered the questions correctly. He could not, however, provide the district
court with the accurate information he claims to have provided during the
meeting or that he would present at trial if given the opportunity.
Additionally, in the event that he did give the correct answers but was
misunderstood at the meeting, there is no evidence that Chester made an effort
to correct any perceived miscommunications with the management team at
any time. Perhaps even more significantly, Chester had been given a “final
warning” several months prior to being questioned about the performance of
his individual technicians, but his SOS rates continued to worsen.           This
suggests that, even if it is somehow debatable that Chester gave inaccurate
answers at the meeting, his worsening field performance after his final
warning combined with his disciplinary history and unprofessional conduct
toward the office administrator, would have nevertheless resulted in his
termination.
      In conclusion, we see no error in the district court’s holding that Chester
failed to demonstrate a genuine issue of material fact by presenting either
                                        7
     Case: 16-60533        Document: 00513932677           Page: 8     Date Filed: 03/30/2017



                                        No. 16-60533
direct or circumstantial evidence that he was terminated from Directv due to
his age. See Fed. R. Civ. P. 56(a); Robinson, 505 F.3d at 366. Consequently,
he has failed to establish a prima facie case of age discrimination under the
ADEA and the district court properly rendered summary judgment in favor of
Directv. See Phillips, 658 F.3d at 455. 3
                                      IV. Conclusion
       For the aforementioned reasons, the district court’s summary judgment
in favor of Defendant-Appellee Directv is AFFIRMED.




       3  Chester devotes a significant portion of his appellate and reply briefs to the district
court’s limited mention of the fact that Directv hired Chester at the age of 56 and promoted
him a year later, pointing to Directv’s citation of “Fifth Circuit precedent that states that it
is irrational for an employer to show animus in termination but not in hiring.” See Brown v.
CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). Chester argues that this “same actor
inference argument” is unsupported by the facts and contradicts the requirement that “all
reasonable inferences are to be drawn in favor of the non-moving party.” Robinson, 505 F.3d
at 366. Assuming arguendo that the “same actor inference” was somehow improperly applied
by the district court here, the record contains ample evidence supporting the district court’s
conclusion that Chester failed to establish a prima facie case of age discrimination under the
ADEA by showing that he was terminated due to his age, see Phillips, 658 F.3d at 455, and
as previously stated infra, we may properly “affirm summary judgment on any ground
supported by the record, even if it is different from that relied on by the district court.” Reed,
701 F.3d at 438.
                                                8
