     Case: 12-20404       Document: 00512235457         Page: 1     Date Filed: 05/08/2013




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

                                                                            FILED
                                                                            May 8, 2013

                                     No. 12-20404                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DANNY R. HORTON,

                                                  Plaintiff-Appellant
v.

CCA PROPERTIES OF AMERICA, LLC, also known as Correction
Corporation of America (CCA),

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-2677


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Danny R. Horton (“Horton”) appeals the district court’s
grant of summary judgment in favor of defendant-appellee CCA Properties of
America, LLC, also known as Corrections Corporation of America (“CCA”).
Horton alleges that CCA, a for-profit corporation that managers and operates
correctional facilities, discriminated against him on the basis of age by demoting


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20404

and discharging him, created a hostile work environment, and retaliated against
him. He brought his claims pursuant to the Age Discrimination in Employment
Act (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42
U.S.C. § 1982. The district court granted CCA’s motion for summary judgment.
We affirm.
                       FACTS AND PROCEEDINGS
                                       A.
      Prior to working for CCA, Horton was employed in the Texas Prison
System for the Texas Department of Criminal Justice for thirty-three years.
During six of those years, he worked as a Warden for a correctional facility. In
December 2007, when Horton was fifty-two years old, CCA hired Horton as an
Assistant Warden at CCA’s San Diego Correctional Facility in San Diego,
California. The facility housed individuals being detained for illegal entry into
the United States, the majority of whom had committed no other crime.
      After fifteen months, Horton applied for a promotion. In April 2008, after
an application process, CCA hired Horton as Warden of CCA’s Cimarron
Correctional Facility (“Cimarron”) in Cushing, Oklahoma. Cimarron was a
medium-security facility that housed inmates who presented a higher risk to
security than the detainees at the San Diego Correctional Facility. Horton
asserts that Cimarron was “in a state of complete system failure” when he was
hired. During the nine months he worked as Warden, Cimarron suffered from
significant management, safety, and security issues. In January 2009, CCA
conducted a facility review because in the thirty days preceding the review,
Cimarron experienced numerous finds of contraband, an attempted suicide, a
serious assault, and loss of a Class A tool that was recovered only after an
inmate revealed its location. The facility review team identified numerous
failures in communication, tool control, control of the security equipment and
armory, key control, inspections, and unit management. Daren Swenson

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(“Swenson”), the Managing Director for CCA’s Facility Operations, stated in his
affidavit that he informed Horton of the review’s results, that the findings were
not acceptable, and that changes needed to occur immediately. Horton insists
that he was never informed that his performance was deficient.
      On January 15, 2009, approximately one week after the facility review was
completed, CCA conducted its annual operational audit of the facility. The
auditors again found numerous deficiencies in its operation and management.
Swenson stated in his affidavit that he informed Horton that he had lost
confidence in Horton’s ability to be an effective warden and that he placed
Horton on administrative leave with pay pending a determination of whether
Horton should continue his employment with CCA. Plaintiff asserts that he was
never made aware of his performance deficiencies.
      On January 26, 2009, Swenson placed Horton on administrative leave.
Swenson informed Horton that CCA would try to find an assistant warden
position. On February 11, 2009, Swenson informed Horton that there were no
assistant warden positions anywhere in CCA. Horton alleges that this statement
was false because the Cimarron assistant warden had recently been discharged,
but has not provided documentation to support this assertion. Swenson told
Horton that there was a Chief of Security position available in Dallas, Texas.
The position is a lower paying than an assistant warden position. Horton
declined to interview for the job.
      On February 2, 2009, while on administrative leave, Horton telephoned
Brian Collins (“Collins”), the Vice President of CCA’s Facility Operations to find
out why he had been demoted. Horton alleges that Collins told him that his
“management skills were not suited for the younger generation joining the
workforce now, it’s not the same when we were coming along.” Horton claims
that Collins also suggested that Horton “look at going back to school and getting



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some more management skills, some up-to-date management skills.” CCA denies
that Collins made these statements.
      On February 11, 2009, Swenson informed Horton that CCA was preparing
a severance package for him. On February 19, 2009, Collins sent Horton a letter
with the enclosed Separation Agreement. The letter stated that “[t]his
agreement is based on your decision to resign rather than accept our offer of a
position other than Warden at a facility other than Cimarron.” The letter also
“confirm[ed] that CCA accepts [Horton’s] resignation effective February 27,
2009.” The letter further noted that the severance agreement did not preclude
Horton for applying for any vacancies that arose in any CCA location other than
Cimarron. Horton responded to Collins by email and told Collins he had not
resigned. Collins sent a response email, explaining:
      We made the decision that you were not able to continue in the
      position of Warden at Cimarron based on numerous and repeated
      performance failures. You have not disputed that decision. Normally
      when such a decision is made there is only one option: termination
      of employment whether by involuntary separation or voluntary
      resignation. In your case, we looked for other options. However, as
      Daren Swenson advised you and as you acknowledge below, there
      are no available Assistant Warden positions in Business Unit I.
      Nonetheless, in an effort to find an alternative position for you, we
      identified a Chief of Security position in Texas and advised you that
      Jimmy Turner was willing to interview you for the position. You
      refused to consider that option. Since that was the only option we
      identified, your refusal to consider it amounts to resignation
      regardless of whether you actually used the term ‘resignation’
      during your conversations with Daren. We did not offer you and we
      are not in the position of being able to carry you on CCA payroll
      until a position which you deem acceptable becomes available.
In the same email, Collins encouraged Horton to sign the separation agreement
and told Horton that he would be terminated either way. Horton did not sign the
agreement, and CCA terminated his employment with an effective date of
February 27, 2009.


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      After terminating Horton’s employment, CCA hired Joseph Taylor to be
Warden of Cimarron. He was forty-nine years old when he was hired. He had a
Bachelor’s degree in criminal justice and a Masters degree in counseling. Prior
to joining CCA, Taylor worked for the Arizona Department of Corrections for
over twenty years, and worked as Warden for two to three years. He then was
promoted to the position of Assistant Director, in charge of all the Department’s
facilities. He then went to work as Assistant Warden at CCA’s Florence
Correctional Facility in Florence, Arizona. After one year, he was promoted to
become Warden at Cimarron.
                                         B.
      On July 28, 2009, Horton filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”). The EEOC issued Horton a
“right to sue” letter on April 29, 2010. Horton filed a suit in district court on July
28, 2010, and thereafter filed two amended complaints. In his second amended
complaint, Horton asserted (1) an age discrimination claim under ADEA; (2) a
hostile work environment claim under ADEA and Title VII; and (3) a retaliation
claim under 42 U.S.C. § 1982. On September 30, 2011, CCA filed a motion for
summary judgment on all Horton’s claims. After receiving Horton’s reply and
allowing him to file a sur-reply, the district court granted CCA’s motion for
summary judgment on May 18, 2012. Horton now appeals.
                           STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Addicks Servs., Inc. v. GGP-Bridgeland,
LP, 596 F.3d 286, 293 (5th Cir. 2010). Summary judgment is appropriate if the
record shows that “there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In



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reviewing a grant of summary judgment, we examine the evidence in the light
most favorable to the nonmoving party. Addicks Servs., Inc., 596 F.3d at 293.
      The moving party bears the burden of demonstrating that summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
nonmoving party would bear the burden of proof at trial, the moving party may
meet its burden by showing “that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. The burden then shifts to the nonmoving
party “to go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. While
“any reasonable inferences are to be drawn in favor of [the nonmoving] party,
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003),
summary judgment should not be denied “if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and unsupported
speculation.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (quoting Krim
v. BancTexas Grp., Inc., 989 F.2d 1435, 1449 (5th Cir. 1993)). Moreover, “[t]he
mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find
for the plaintiff.” Anderson, 477 U.S. at 252.
                                  DISCUSSION
                                         A.
      Pursuant to the 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.”
29 U.S.C. § 623(a)(1). A plaintiff seeking to establish a claim of age
discrimination may put forward either direct or circumstantial evidence of
discrimination. See Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007). Because Horton did not produce direct evidence of age

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discrimination,1 he had to put forth a prima facie case of age discrimination by
showing 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) (quoting Berquist, 500 F.3d
at 349). Once a prima facie case has been established, the burden shifts to the
employer to provide a “legitimate, non-discriminatory reason” for his
termination. Berquist, 500 F.3d at 349. The burden then reverts to Horton to
show that the defendant’s reason is merely pretextual. Jackson, 602 F.3d at 378.
       The district court determined that Horton did not establish a prima facie
case of age discrimination because he failed to demonstrate that he was qualified
for the position because although his extensive work experience qualified him
to be hired, the facility review and annual audit provided CCA with additional
information about Horton’s management skills that demonstrated that he was
not qualified for the position of Warden at Cimarron. The district court also
found that Horton did not satisfy the fourth prima facie prong because Horton’s
replacement was also in the protected class and only five years younger than
Horton, which was not a sufficiently significant age difference. See 29 U.S.C. §
631(a); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996)


       1
         In his opposition to the motion for summary judgment, Horton asserted that Collins’
alleged statements during the February 2, 2009 telephone call are direct evidence of age
discrimination. The district court disagreed, finding that the statement could, at best, support
an inference of discrimination but was not direct evidence of it. See West v. Nabors Drilling,
USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003). Horton does not challenge this finding in his
appeal brief and therefore waives it. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Moreover, the district court’s decision was not in error. Collins’ alleged statements were not
“direct and unambiguous [such that] a reasonable jury [would] conclude without any
inferences or presumptions that age was an impermissible factor in the decision to terminate
the employee.” Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5th Cir. 2010) (quoting EEOC
v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). They therefore cannot be
considered direct evidence of discrimination.

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(holding that in the age discrimination context, an inference of discrimination
“cannot be drawn from the replacement of one worker with another worker
insignificant younger”).
      We do not reach these issues because even if Horton established a prima
facie case of age discrimination, summary judgment would still be appropriate.
CCA put forth a “legitimate, non-discriminatory reason” for Horton’s
termination, and Horton has not offered evidence of pretext. See Berquist, 500
F.3d at 349. CCA offered evidence that Horton was demoted because he had
mismanaged the Cimarron facility. After nine months under Horton’s
management, the facility suffered from serious management, communication,
and security issues, which culminated in at least two severe injuries to inmates
and rampant problems with contraband. The facility review and annual audit
identified numerous issues throughout the facility, including miscommunication
and power struggles between management and non-management employees,
faulty security procedures, improper or lack of training, improper use of inmates
as employees, and general mismanagement. The facility review team found that
Horton lacked the necessary initiative, leadership, and management to run
Cimarron. Horton does not contradict the results of these assessments. He
merely alleges, without supporting evidence, that the facility was in bad shape
when he arrived. Even accepting his self-serving assertion, the review and audit
results demonstrate that he was not capable of performing the job for which he
was hired: to effectively run Cimarron, a medium-security detention facility.
      Despite these failures, CCA still did not fire Horton. They looked for
another job for him, and offered to interview him for a chief of security position.
Horton declined. Because he refused this open position, CCA formally
terminated him.
      Horton has not shown that the CCA’s reasons are pretextual. To support
his claim of pretext, he points to Collins’ alleged comments and the fact that

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Taylor, his replacement, has less work experience than Horton. Even accepting
as true Horton’s assertion that Collins told him over the telephone that Horton’s
“management skills were not suited for the younger generation joining the
workforce now,” and noting that Horton may want to return to school to get
“some up-to-date management skills,” this does not demonstrate pretext. “In
order for an age-based comment to be probative of an employer’s discriminatory
intent, it must be direct and unambiguous, allowing a reasonable jury to
conclude without any inferences or presumptions that age was a determinative
factor in the decision to terminate the employee.” Wyvill v. United Cos. Life Ins.
Co., 212 F.3d 296, 304 (5th Cir. 2000). Collins’ alleged comments are not either
direct or unambiguous evidence of discriminatory intent. Collins did not tell
Horton he was being demoted because of his age, but rather because he lacked
the necessary management skills to effectively manage his staff. With regard to
his replacement, Taylor had twenty years of experience in the Arizona
Department of Corrections, which is less than Horton’s thirty-three years of
experience in the Texas Prison System. However, Taylor held a higher position
of authority in Arizona than Horton held in Texas, having been promoted to
Assistant Director in charge of all of the Arizona Department of Corrections
facilities. Moreover, Taylor’s qualifications are not relevant to the reasons for
Horton’s dismissal. Horton has failed to demonstrate that he was demoted for
any reason other than the systemic, widespread management and security
failures at Cimarron while he was warden there; and failed to demonstrate that
he was fired for any reason other than the fact that he refused to interview for
the only position open in CCA for which he was qualified.
                                       B.
      Horton also asserts that the district court erred in granting summary
judgment to CCA on his hostile work environment claim. Hostile work
environment claims are cognizable under the ADEA. Dediol v. Best Chevrolet,

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Inc., 655 F.3d 435, 441 (5th Cir. 2011). However, any ADEA claim must first be
administratively exhausted. See 29 U.S.C. § 626(d) (prohibiting the filing of any
civil action pursuant to the ADEA until “after a charge alleging unlawful
discrimination has been filed with the Equal Employment Opportunity
Commission”). Horton does not address or contest the district court’s conclusion
that he failed to exhaust his hostile work environment claim.
      A claim is sufficiently exhausted where it falls within “the scope of the
EEOC investigation which ‘can reasonably be expected to grow out of the charge
of discrimination.’” Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (quoting
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). On
Horton’s EEOC Charge of Discrimination form, he marked the “age”
discrimination box. He explained that he was demoted on January 28, 2009, and
terminated on February 27, 2009. He cited Collins’ alleged explanation for the
demotion and the fact that he was replaced Taylor, “a younger employee” in
support of his age discrimination claim, and discussed the fact that he was told
there were no available assistant warden positions. At no time did he assert that
he faced a hostile work environment. Indeed, because he was placed on
administrative leave with pay on January 28, 2009 and remained on leave until
he was terminated, he was not in the workplace and could not have faced a
hostile work environment during the time period he referenced in his charge.
Because a hostile work environment charge could not reasonable be expected to
have grown out of his charge of age discrimination, the claim was not exhausted.
                                       C.
      Horton also asserts that the district court erred in granting summary
judgment to CCA on his claim of retaliation, but does not address the district
court’s conclusion that such a claim is not cognizable under 42 U.S.C. § 1982 and
that he failed to exhaust any ADEA-based claim of retaliation. Horton’s second
amended complaint asserted a claim of retaliation only in violation of 42 U.S.C.

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§ 1982. The district court found that retaliation based on complaints of age
discrimination is not cognizable under § 1982 and correctly explained that the
case upon which Horton relies, Gomez-Perez v. Potter, 553 U.S. 474 (2008),
establishes only that federal employees may bring retaliation claims based on
complaints of age discrimination under the ADEA, not that retaliation based on
complaints of age discrimination are cognizable under § 1982. See id. at 491.
Horton’s second amended complaint did not assert a claim of retaliation
pursuant to the ADEA. Even if it did, the claim would fail for failure to exhaust
administrative remedies. Horton did not check the box for retaliation in his
EEOC charge, assert that he was demoted or fired as retaliation, or assert
having taken any actions that would have provoked retaliation. A retaliation
claim cannot be said to have been reasonably expected to grow out of Horton’s
charge of age discrimination, and therefore was not exhausted. See Pacheco, 448
F.3d at 789.
                                CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court’s grant of
summary judgment in favor of the defendant.




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