     Case: 14-30187      Document: 00512839291         Page: 1    Date Filed: 11/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30187                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        November 17, 2014
MICHAEL E. SULLIVAN,                                                       Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

WORLEY CATASTROPHE SERVICES, L.L.C.,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2597


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Michael E. Sullivan appeals the district court’s order
granting summary judgment in favor of Defendant-Appellee, Worley
Catastrophe Services, L.L.C. Sullivan argues that he has submitted evidence
showing the existence of disputed material facts in this age discrimination
lawsuit against his former employer. Furthermore, Sullivan challenges the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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district court’s order requiring him to pay court costs.      For the following
reasons, we AFFIRM the judgment of the district court.
              I.   FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff-Appellant Michael E. Sullivan began to work for Defendant-
Appellee Worley Catastrophe Services, L.L.C. (“Worley”) on July 19, 2010 as a
professional claims adjuster working on a project involving third party claims
made against British Petroleum (“BP”) related to the Deepwater Horizon oil
spill (“BP Project”).   Sullivan was assigned to the large loss unit, where
adjusters were paid at a higher rate than adjusters assigned to the general
claims unit. On August 23, 2010, the Gulf Coast Claims Facility (“GCCF”) took
over the third party administration of the BP claims. The GCCF decided to
eliminate the large loss unit because it did not want any specialized units.
Worley continued to employ the claims adjusters formerly assigned to the large
loss unit, including Sullivan, with the expectation that they would function as
general claims adjusters and handle any special projects that arose.
      In September 2010, the GCCF instructed Worley to reduce the claims
adjusting staff assigned to the BP project by approximately 246 claims
adjusters by September 18, 2010. On September 17, 2010, Worley released
approximately 100 claims adjusters, including Sullivan, from the main claims
adjusting facility where Sullivan worked. Worley also released more claims
adjusters from other facilities. Many of the adjusters released during the
September 2010 reduction in force were initially assigned to the large loss unit.
      Sullivan was fifty-seven years old at the time of his termination. At least
fifty-five adjusters who remained on the project after the September 2010
reduction in force were between the ages of fifty-eight and seventy-two.
Furthermore, at least thirteen adjusters between the ages of twenty-one and
thirty-eight were terminated as part of the September 2010 reduction in force.


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      On October 14, 2011, Sullivan filed suit against Worley in the United
States District Court for the Eastern District of Louisiana. Sullivan alleged
that Worley had violated the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq., when it discharged him from his
employment. Sullivan further alleged that despite receiving a satisfactory
work evaluation from his manager, he was terminated as part of a group of
generally older and more experienced workers.          He also alleged that the
workers who remained were substantially less experienced and younger than
the workers who were terminated. Sullivan also noted that he was not offered
another position with Worley.
      On October 7, 2013, the district court granted Worley’s motion for
summary judgment and entered judgment in favor of Worley. 1 The district
court found that “[n]othing in plaintiff’s evidence . . . leads to a reasonable
inference that Sullivan was terminated [because of] his age.” The district court
further ordered that Sullivan bear all of the costs associated with the
proceedings. After his motion to reconsider was denied, Sullivan filed a timely
appeal.
                           II.   STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied by the district court
below. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
A district court’s summary judgment order is proper “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). “A genuine dispute as
to a material fact exists ‘if the evidence is such that a reasonable jury could



      1  Both parties agreed to have a United States Magistrate Judge conduct the
proceedings in the case and to enter final judgment pursuant to 28 U.S.C. § 636(c).
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return a verdict for the nonmoving party.’” Rogers, 755 F.3d at 350 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).                    “[T]his court
construes ‘all facts and inferences in the light most favorable to the nonmoving
party’”. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)). Nevertheless, “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) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
       We review a district court’s decision to award costs for abuse of
discretion. Soderstrum v. Town of Grand Isle, 925 F.2d 135, 141 (5th Cir.
1991).
                                       III.    ANALYSIS
       Sullivan argues that the district court erred when it granted Worley’s
summary judgment motion.               Sullivan notes that he presented “concrete
evidence” contained in “numerous affidavits showing a hostile work
environment,       an    ‘ageist’   atmosphere,       [and]    other     examples     of   age
discrimination.”        He further points to an “unrebutted detailed statistical
analysis showing that [the employees who were laid off] were far older on . . .
average than the retained employees.” 2


       2  Only admissible evidence can be used in opposition to a motion for summary
judgment. See Mersch v. City of Dallas, Tex., 207 F.3d 732, 734–35 (5th Cir. 2000). The
district court found that this statistical analysis offered by a purported expert was
inadmissible for several reasons, including: Sullivan’s failure to initially disclose to Worley
that he had hired the expert as required by Fed. R. Civ. P. 26(a)(2); Sullivan’s failure to
supplement his disclosures as required by Fed. R. Civ. P. 26(e); and the unreliability of the
purported expert’s report. Sullivan does not challenge the district court’s evidentiary rulings.
Instead, Sullivan attempts to utilize the purported expert’s statistical analysis to bolster his
argument that there is a genuine dispute as to a material fact without acknowledging the
district court’s rejection of that evidence. Accordingly, Sullivan has waived his opportunity
to challenge the district court’s evidentiary ruling, see Koetting v. Thompson, 995 F.2d 37, 38
n.1 (5th Cir. 1993), and we will not consider the statistical analysis.
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                                       No. 14-30187
       The ADEA prevents an employer from “discharg[ing] any individual or
otherwise discriminat[ing] 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).                   Since “direct evidence of
discrimination is rare, the Supreme Court has devised an evidentiary
procedure that allocates the burden of production and establishes an orderly
presentation of proof in discrimination cases.” Nichols v. Loral Vought Sys.
Corp., 81 F.3d 38, 40 (5th Cir. 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)). In a reduction-in-force case, the employee makes out a
prima facie case under the ADEA by showing “(1) that he is within the
protected age group; (2) that he has been adversely affected by the employer’s
decision; (3) that he was qualified to assume another position at the time of the
discharge; and (4) ‘evidence, circumstantial or direct, from which a factfinder
might reasonably conclude that the employer intended to discriminate in
reaching the decision at issue.’” Nichols, 81 F.3d at 41 (quoting Amburgey v.
Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991)). We will assume,
without deciding, that Sullivan has established a prima facie case. 3
       By establishing a prima facie case of discrimination, the employee
“creates a presumption that the employer unlawfully discriminated against the
employee.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (internal
quotation marks omitted). Accordingly, “[t]he burden of production then shifts
to the defendant to proffer a legitimate, non-discriminatory reason for the
challenged employment action.” Nichols, 81 F.3d at 41. The defendant can



       3 Worley argues that the district court properly found that Sullivan could not establish
a prima facie case because Sullivan did not allege—and has no evidence—that there were
other positions available that he was he was qualified to assume at the time of his discharge.
Although we think this argument has force, we need not address it because we conclude that
Sullivan cannot show that Worley’s legitimate, non-discriminatory reason for the reduction-
in-force was a pretext for age discrimination.
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meet this burden by submitting evidence that “if believed by the trier of fact,
would support a finding that unlawful discrimination was not the cause of the
employment action.”     St. Mary’s Honor Ctr., 509 U.S. at 507 (emphasis
removed). If the defendant is able to meet this burden, “the presumption of
discrimination created by the plaintiff’s prima facie case disappears and the
plaintiff must meet its ultimate burden of persuasion on the issue of
intentional discrimination.” Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005).
      Worley has met its burden of showing that it had a “legitimate, non-
discriminatory reason,” for terminating Sullivan. Nichols, 81 F.3d at 41. It is
undisputed that the BP project was temporary and that Sullivan was aware of
this fact. It is also undisputed that Worley was instructed by its client, the
GCCF, to reduce the claims adjusting staff assigned to the BP project by
approximately 246 claims adjusters in September 2010.         Furthermore, it is
undisputed that the GCCF decided to eliminate the large loss unit, where
Sullivan was originally assigned, in favor of having all of the claims adjusted
by a pool of general adjusters. Finally, it is undisputed that many of the former
large loss adjusters were included in the September 2010 reduction-in-force.
Worley has explained that it terminated adjusters primarily from the former
large loss unit because there was no longer a need for their specialized
experience after the GCCF decided to eliminate the large loss unit.
Accordingly, it is clear that Worley has articulated a legitimate, non-
discriminatory reason for terminating Sullivan, namely, that its client
requested a large reduction-in-force and it complied by laying off employees,
including Sullivan, who were no longer needed.            See E.E.O.C. v. Tex.
Instruments Inc., 100 F.3d 1173, 1181 (reasoning that a reduction in force is a
legitimate, non-discriminatory reason for a discharge).


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           Since Worley has explained that Sullivan was laid off for a legitimate,
non-discriminatory reason, Sullivan must show that Worley’s “articulated
rationale is merely pretext for discrimination.” Nichols, 81 F.3d at 41. If
Sullivan can successfully “raise a genuine issue of material fact as to whether
he has established pretext, that will suffice to avoid summary judgment.” Id.
He fails to do so here. Although Sullivan was fifty-seven at the time of the
layoff, at least fifty-five adjusters between the ages of fifty-eight and seventy-
two were retained on the BP project after the September 2010 reduction in
force. Furthermore, at least thirteen adjusters who were between the ages of
twenty-one and thirty-eight were terminated, along with Sullivan, during the
September 2010 reduction in force.
       This court has repeatedly held that “an employee’s subjective belief of
discrimination, however genuine, cannot be the basis of judicial relief.”
E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995).
Accordingly, Sullivan’s declaration that it is highly unlikely that the layoff was
random is not sufficient, without more, to establish that there is a genuine
dispute of material fact. 4 Furthermore, the declaration of Charles Baldwin,
another Worley employee, is similarly unavailing. Baldwin acknowledges that
he had taken a leave of absence from Worley before the reduction-in-force.
Moreover, his vague accusations accusing Worley managers of “blatant age
discrimination” do not establish that Worley laid off Sullivan for any reason
but the legitimate, non-discriminatory reason, discussed above.
       Sullivan also appears to argue that a Worley official’s comment that the
layoff was “completely random” was pretextual.                    For support, he has
introduced in the record, in addition to his own declaration, three largely



       4Sullivan’s declaration relies largely on the inadmissible statistics discussed above;
accordingly, we have even more reason to discount it.
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                                 No. 14-30187
identical declarations by three of his former co-workers.        Each of these
declarations alleges that a Worley official stated during a meeting with the
soon to be laid off employees that the determination of who was to be laid off
was “completely random.” The declarants further allege that they were able
to look around the room and see that “it was clear that older, more experienced
workers had been selected.” Worley has explained that many of the people who
were laid off were formerly part of the large loss unit because there was no
need for their specialized experience. Accordingly, even if it were true that the
people who were laid off were older and more experienced, Sullivan has not
raised a genuine issue of material fact that Worley selected him and the other
employees to be laid off based on their age. See Tex. Instruments Inc., 100 F.3d
at 1185 (“[P]articularly in age discrimination cases where innumerable
groupings of employees are possible according to ages and divisions with the
corporate structure, statistics are easily manipulated and may be deceptive.”)
(internal quotation marks omitted). Consequently, he cannot establish that
the district court erred when it granted Worley’s motion for summary
judgment. See Nichols, 81 F.3d at 41 (explaining that an employee must raise
a genuine issue of material fact as to whether the employer’s reasons were
pretextual to survive a motion for summary judgment).
      We further hold that the district court did not abuse its discretion when
it ordered Sullivan to bear the costs of the proceedings below. Under Fed. R.
Civ. P. 54(d)(1), “costs . . . should be allowed to the prevailing party.” A
prevailing party “is one who has been awarded some relief by the court.”
Buckhannon Bd. and Bare Home, Inc. v. W. Va. Dept. of Health and Human
Res., 532 U.S. 598, 603 (2001). The district court’s order granting summary
judgment to Worley was undeniably an award of relief. See, e.g., 10 Charles
Alan Wright & Arthur Miller, Federal Practice and Procedure § 2667 (3d ed.
2014) (“[A] dismissal of the action, whether on the merits or not, generally
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means that defendant is the prevailing party.”). Accordingly, the district court
did not abuse its discretion when it ordered Sullivan to bear the costs of the
proceedings below.
                               IV.   CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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