     Case: 19-20285      Document: 00515371079          Page: 1   Date Filed: 04/03/2020




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

                                                                                 FILED
                                         No. 19-20285                         April 3, 2020
                                                                            Lyle W. Cayce
Consolidated with 19-20467                                                       Clerk


SAMUEL GONZALES,

              Plaintiff - Appellant

v.

CONOCOPHILLIPS COMPANY; FRANK ALEXANDER; DAN MECHAM;
CONOCOPHILLIPS SEVERANCE PAY PLAN,

              Defendants - Appellees




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:17-CV-2374


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Samuel Gonzales brought suit against Defendants-
Appellees     ConocoPhillips,      its     Severance    Pay    Plan,    and       two        Plan
administrators.       In his complaint, Gonzales asserted claims against
Defendants for employment discrimination on the basis of national origin


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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under Title VII and § 1981, as well as claims for wrongful denial of severance
benefits, failure to timely provide plan documents, and breach of fiduciary duty
under ERISA Sections 502(a)(1)(B), 502(c), and 503. The district court granted
summary judgment in favor of Defendants on all claims and dismissed
Gonzales’ suit in its entirety. The court awarded Defendants $186,000 in
attorneys’ fees. Gonzales appeals the court’s final judgment and award of
attorneys’ fees. We AFFIRM.


                                              I.
      Samuel Gonzales was first employed by ConocoPhillips in 2002 as a
petroleum engineer. In 2011, Gonzales accepted an international assignment
as a senior drilling engineer based in Australia. To be eligible to work in
Australia, Gonzales was required to obtain a temporary work visa (457 visa),
which includes certain character and fitness requirements. Gonzales applied
for and successfully obtained a 457 visa permitting him to work in Australia
from January 2012 to January 2016. 1
      While in Australia, Gonzales was convicted of several criminal offenses,
including a July 2014 conviction for aggravated assault against his wife for
which he was sentenced to one year probation. On January 7, 2016, Gonzales
disclosed these convictions to the Australian Department of Immigration (the
Department) in his application to renew his 457 visa, and Gonzales obtained a
bridging visa while his 457 visa application was being reviewed and processed.
On March 1, 2016, the Department cancelled Gonzales’ bridging visa on
character grounds, and Gonzales was detained in an immigration detention
facility. After learning that Gonzales would not be available to work for the
foreseeable future, ConocoPhillips put Gonzales on a paid leave of absence.


      1   Gonzales 457 visa was set to expire on January 11, 2016.
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                                 No. 19-20285
Gonzales remained on paid leave until April 1, 2016, when he had exhausted
all of his paid time off. On June 24, 2016, Gonzales was released from the
immigration detention facility and returned to the United States. On June 27,
2016, ConocoPhillips terminated Gonzales for cause, citing his absence from
work without leave, his inability to perform his job duties, and his failure to
maintain eligibility for his 457 visa in Australia. Thereafter, Gonzales filed
suit.   ConocoPhillips moved for summary judgment.         Following a lengthy
discovery process, the district court granted summary judgment in favor of
ConocoPhillips and awarded ConocoPhillips attorneys’ fees.


                                       II.
        We review de novo a district court’s grant of summary judgment,
“applying the same legal standards that controlled the district court’s
decision.” Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802, 808 (5th
Cir. 2019) (quoting White v. Life Ins. Co. of N. Am., 892 F.3d 762, 767 (5th Cir.
2018)). Summary judgment is appropriate when the movant is entitled to
judgment as a matter of law, and there is no genuine dispute of material fact.
FED. R. CIV. P. 56(a). “An issue of material fact is genuine if a reasonable jury
could return a verdict for the nonmovant.” Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 377 (5th Cir. 2010). We “draw all reasonable inferences
in favor of the nonmoving party, and avoid credibility determinations and
weighing of the evidence.” Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470,
474 (5th Cir. 2015). “However, a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007) (internal quotation marks and citation omitted). The movant is entitled
to summary judgment if “the nonmoving party has failed to make a sufficient


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showing on an essential element of her case with respect to which she has the
burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).


ERISA Claims
      Where, as here, a plan subject to ERISA delegates discretionary
authority to the plan administrator, we review the denial of a claim for an
abuse of discretion. See Ariana M. v. Humana Health Plan of Tex., Inc., 884
F.3d 246, 247 (5th Cir. 2018) (en banc) (citing Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989)). A plan administrator abuses its discretion if
its decision is arbitrary or capricious. Truitt v. Unum Life Ins. Co. of Am., 729
F.3d 497, 508 (5th Cir. 2013). “A decision is arbitrary and capricious only if it
is made without a rational connection between the known facts and the
decision or between the found facts and the decision.” Id. (citation omitted).
If the plan administrator’s decision is supported by substantial evidence and
is not arbitrary and capricious, it must prevail. Nichols, 924 F.3d at 808
(citation omitted). “Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Ellis v. Liberty Life
Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004) (cleaned up)). Under this
standard, we must uphold the plan administrator’s decision if our review
“assure[s] that the administrator’s decision fall[s] somewhere on a continuum
of reasonableness – even if on the low end.” Id. (quoting Holland v. Int’l Paper
Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009) (citation omitted)).
      Here, the Plan administrator’s decision is supported by substantial
evidence. In order to be eligible to receive benefits under the Plan, Gonzales
had to meet all Qualifying Circumstances and could not have a Disqualifying
Circumstance. The Plan administrator correctly found that Gonzales did not
satisfy all of the Qualifying Circumstances because he did not suffer a layoff;
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in fact, Gonzales was terminated for cause, which is a Disqualifying
Circumstance.       Accordingly, the Plan administrator did not abuse his
discretion in concluding that Gonzales was not eligible to receive Plan benefits.
Furthermore, Gonzales failed to produce sufficient evidence that the Plan
administrators either breached their fiduciary duty or failed to provide plan
documents. 2 The district court, therefore, did not err in granting summary
judgment on Gonzales’ ERISA claims.


Employment Discrimination
       As to Gonzales’ discrimination claims, we apply the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). To
establish a prima facie case of employment discrimination, Gonzales must
demonstrate that he (1) is a member of a protected class, (2) was qualified for
his position, (3) was the subject of an adverse employment action, and (4) was
treated less favorably because of his membership in that protected class than
were other similarly situated employees who were not members of the
protected class. Id. Once Gonzales demonstrates a prima facie case, the
burden of production shifts to ConocoPhillips to offer an alternative,
nondiscriminatory explanation for the adverse employment action. Id. If
ConocoPhillips can provide a legitimate nondiscriminatory explanation,


       2 Gonzales alleges the Plan administrators had a conflict of interest and did not give
him a full and fair review. To that end, he raises several evidentiary issues, asserting that
the court should have looked at evidence outside the administrative record to determine
whether the Plan administrators wrongfully denied Gonzales benefits and breached their
fiduciary duty to him. We find Gonzales’ arguments meritless. The district court conducted
a bench trial specifically for the purpose of determining whether the administrative record
was complete, and after hearing testimony from the Plan administrators, as well as
arguments from counsel, the district court determined the administrative record was
complete. The court’s decision to constrain the record to the evidence that was before the
Plan administrator is in line with our precedent. See Nichols, 924 F.3d at 811–12, n.10.
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Gonzales would then be required to demonstrate that ConocoPhillips
explanation is merely a pretext for the discrimination. Id.
      Even assuming arguendo that Gonzales has established a prima facie
case of discrimination, he has failed to demonstrate that ConocoPhillips reason
for terminating his employment was pretextual.            It is undisputed that
Gonzales was absent from work without leave beginning April 1, 2016 through
June 24, 2016, when he was released from the immigration detention facility.
Moreover, Gonzales was unable to perform his job duties while in the
immigration detention facility. And ultimately, Gonzales failed to maintain
eligibility for his 457 visa in Australia based on his character and fitness.
Accordingly, the district court did not err in granting summary judgment on
Gonzales’ discrimination claims.


                                      III.
      Finally, we review the district court’s award of attorneys’ fees under
ERISA for an abuse of discretion. North Cypress Med. Ctr. Operating Co., Ltd.
v. Aetna Life Ins. Co., 898 F.3d 461, 485 (5th Cir. 2018). “A claimant must
show some degree of success on the merits before a court may award attorney’s
fees. Success means the court can fairly call the outcome of the litigation some
success on the merits without conducting a lengthy inquiry into the question
whether a particular party’s success was substantial or occurred on a central
issue.” Id. (internal quotation marks and citations omitted).
      Although the district court here did not expressly articulate in its order
for attorneys’ fees how ConocoPhillips showed some degree of success on the
merits, it is clear that by granting ConocoPhillips’ motion for summary
judgment as to all of Gonzales’ claims, the district court did indeed find that
ConocoPhillips had shown some success on the merits. See 1 Lincoln Fin. Co.
v. Metro Life Ins. Co., 428 F. App’x 394, 396 (5th Cir. 2011) (concluding that
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the district court’s grant of summary judgment showed the moving party had
succeeded on the merits).     Given that and the costs actually incurred by
ConocoPhillips, we find that the district court did not abuse its discretion in its
award of attorneys’ fees. We AFFIRM the court’s order and award.




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