     Case: 19-20386      Document: 00515514353         Page: 1    Date Filed: 08/04/2020




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


                                      No. 19-20386
                                                                            FILED
                                                                       August 4, 2020
                                                                       Lyle W. Cayce
JOSEPH M. HAUSER,                                                           Clerk

              Plaintiff - Appellant

v.

SCHNEIDER ELECTRIC SYSTEMS USA, INCORPORATED,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-3223


Before STEWART, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Schneider Electric Systems fired Martin Hauser following months of
customer complaints. Hauser brought this suit, alleging age discrimination
under state and federal law. The district court granted summary judgment
against Hauser. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20386

                                        I.
      Hauser was a project manager from 2010 until his termination in 2017.
In this role, Hauser supervised engineering projects related to safety systems
and industrial process controls; he also managed customer relationships.
Around 2016, when Hauser was 62 years old, his supervisor James Austin
began inquiring about Hauser’s retirement plans. Hauser said he had no plans
to retire.
      In early 2017, customers began reporting problems with Hauser’s
performance.    Two customers complained to James Weber, a client sales
executive, about Hauser’s delaying and poorly executing projects. One of those
customers told Weber they planned to not work with Schneider in the future.
A third customer threatened to pull their business after seeing an email in
which Hauser described the customer’s invoicing as “chicanery.”           Austin
verbally warned Hauser about his unprofessional communications, but his
performance did not improve. Soon after the warning, a customer complained
a second time that Hauser failed to keep projects on schedule.
      Because of his recurring performance failures, Austin placed Hauser on
a formal performance improvement plan in mid-2017. The plan described
three areas that Hauser needed to improve: professional communication, job
planning and documentation, and data entry into the “stage gate variable” tool,
which the company used to update customers on project status and financials.
      The performance improvement plan didn’t work. A month later, yet
another customer complained that Hauser was unprofessional and would not
return his calls. Hauser asked to meet with Belinda Bradberry, a human
resources official, but he was unwilling to travel to see her and failed to return
her calls. To top it off, Hauser issued a large change order, charging a customer




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$460,000, without following company policy requiring customer and supervisor
approval beforehand.
       Following these continued missteps, Bradberry and Austin fired Hauser.
Schneider transferred some of Hauser’s projects to Gene Horn. Horn, who is
older than Hauser, came out of retirement to work as an independent
contractor prior to Hauser’s discharge, but became a full-time employee
sometime after Schneider fired Hauser. Hauser’s position remained vacant
until 2018 when Schneider hired Chris Dalton, who was younger than Hauser,
to fill the role. None of Hauser’s projects were transferred to Dalton.
       About two weeks before he was fired, Hauser had filed a discrimination
charge with the EEOC. Although a Schneider in-house lawyer was served with
the filing just a few days later, Bradberry and Austin say they did not learn
about the EEOC charge until two months after they fired Hauser.
       Hauser sued Schneider for age discrimination and retaliation under the
Age Discrimination in Employment Act and the Texas Commission on Human
Rights Act. See 29 U.S.C. § 623(a)(1); TEX. LAB. CODE ANN. § 21.051(1). The
district court dismissed both claims at summary judgment.                    Hauser now
appeals both grants of summary judgment. 1


       1 Hauser also appeals the district court’s denial of his motion to strike Weber’s
declaration. We review evidentiary decisions for abuse of discretion. Hauser asserts that
Weber’s statements lacked personal knowledge, contained conclusory statements, and
constituted hearsay and improper expert opinion. However, Weber possessed personal
knowledge of the project manager role because he held the position for eight years.
Testimony about consumer complaints is not hearsay because they are offered to demonstrate
how they influenced Weber’s state of mind regarding Hauser’s performance. See FED. R.
EVID. 801(c)(2). Additionally, as a client sales executive, Weber was able to estimate the
company’s profits. The district court did not abuse its discretion. To the extent that Hauser
also asks us to strike Bradberry’s and Austin’s declarations, he forfeited his arguments in
support by not raising them before the district court below. See Lofton v. McNeil Consumer
& Specialty Pharm., 672 F.3d 372, 380–81 (5th Cir. 2012). The preservation requirement is
especially important for evidentiary challenges at summary judgment, because a party may
be able to fix any problems if they are timely raised. See Maurer v. Independence Town, 870



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                                            II.
       We review the district court’s summary judgment rulings de novo,
viewing all evidence “in favor of the nonmoving party.”                 Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000)). We will affirm
only “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.
       Both state and federal law prohibit employers from terminating or
otherwise discriminating against an employee (or a prospective employee)
because of age. 29 U.S.C. § 623(a)(1); TEX. LAB. CODE ANN. § 21.051(1). A
plaintiff may provide either direct or indirect evidence of discrimination. As is
typical, Hauser tries the circumstantial route. Under the McDonnell Douglas
burden-shifting framework:

       a plaintiff must first establish 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.

Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015) (quoting
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)). If the
plaintiff makes out the prima facie case, the burden shifts to the employer to
provide a legitimate, nondiscriminatory reason for the discharge. Id. If the




F.3d 380, 384–85 (5th Cir. 2017) (explaining how a party usually has the opportunity to cure
when a challenge is raised to its summary judgment evidence).


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defendant can do so, the burden shifts back to the plaintiff to demonstrate that
the reason is pretextual. Id.
          The parties agree that Hauser established the first three elements of
the prima facie case. The district court concluded he could not establish the
final requirement because it concluded that an older employee, Horn, took over
Hauser’s job even though a younger worker, Dalton, eventually filled Hauser’s
official position. Hauser’s brief focuses on this issue, arguing that there is at
least a fact issue on the question because a company document says Dalton
filled Hauser’s position.
          But we can assume that Hauser established a prima facie case. His
problem is there is no genuine dispute at the final stage of McDonnell Douglas,
which asks the ultimate question of causation. See Reeves, 530 U.S.142–43.
We can affirm on that alternative ground raised below and urged here by
Schneider. See Salas v. Gallegos, 59 F.3d 1242, 1995 WL 413073, at *2–3 (5th
Cir. 1995) (unpublished table decision) (disagreeing with district court’s ruling
that plaintiff could not make out prima facie case but affirming because
plaintiff could not show that company’s legitimate reason for the firing was
pretextual). 2
          Schneider fired Hauser for the classic nondiscriminatory reason of poor
performance. Beginning in January, four different customers and at least one
of Hauser’s colleagues complained about Hauser. His performance continued
to fall below expectations, despite feedback through informal conversations
with his supervisor, the performance improvement plan, and performance
review meetings. His repeated failure to input data distressed a colleague in
one instance and probably lost business in another. The final straw was when



          2   Unpublished decisions issued before 1996 are binding precedent. 5TH CIR. R.
47.5.3.


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Hauser authorized a change order for a customer for $460,000 in violation of
company policy.
       There is no evidence that these nondiscriminatory reasons are
pretextual. 3 We recognized in another pretext case that a jury could conclude
that a store manager’s spending $10 more than authorized on pizza for
employees was not a credible justification for her termination. Laxton v. Gap
Inc. 333 F.3d 572, 580–82 (5th Cir. 2003). But $200,000 is not pizza money.
That is roughly how much the change order exceeded the authorized amount
of $250,000.     And the change order was just one of many problems with
Hauser’s performance.           Given customers’ numerous complaints over a
sustained period of time and the chances the company gave Hauser to improve,
there is no evidence that would allow a jury to disbelieve Schneider’s
explanation.
       Summary judgment was appropriate on the age discrimination claim.
                                             B.
       Hauser also appeals the district court’s grant of summary judgment on
his retaliation claim. To establish a prima facie case of retaliation, a plaintiff
must show that: “1) he engaged in protected activity, 2) he suffered an adverse
employment decision, and 3) a causal link exists between the protected activity
and the adverse employment decision.” Medina v. Ramsey Steel Co., 238 F.3d
674, 684 (5th Cir. 2001). A minimum requirement of causation is that the


       3On the ultimate question of causation, the ADEA and the TCHRA diverge a bit. Reed
v. Neopost USA, Inc., 701 F.3d 434, 440 (5th Cir. 2012). “Under the ADEA, the employee
must ‘prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.’” Squyres v. Heico
Cos., LLC., 782 F.3d 224, 231 (quoting Reeves, 530 U.S. at 143). The TCHRA provides a more
relaxed standard, as a plaintiff can show pretext by establishing that “either (1) the reason
stated by the employer was a pretext for discrimination, or (2) the defendant’s reason, while
true, was only one reason for its conduct and discrimination is another motivating factor.”
Reed, 701 F.3d at 439–40 (quoting Michael v. City of Dallas, 314 S.W.3d 687, 691 (Tex. App.—
Dallas 2010, no pet.)). Hauser’s claim fails under either approach.


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“employer knew about the employee’s protected activity.” Manning v. Chevron
Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003).           And for that, “we have
consistently required proof of ‘actual’ decisionmaker knowledge.” Robinson v.
Jackson State Univ., 714 F. App’x 354, 360 (5th Cir. 2017) (per curiam).
Constructive notice including “general corporate knowledge” is insufficient. Id.
(citing Corley v. Jackson Police Dep’t, 639 F.2d 1296, 1300 n.6 (5th Cir. Unit A
Mar. 1981)).
      There is no evidence that Austin and Bradberry knew about the EEOC
charge when they fired Hauser. Hauser argues that because a legal assistant
for the company acknowledged receipt of the notice two weeks prior to Hauser’s
termination and Austin primarily worked out of the same office, a jury could
conclude that Austin knew of Hauser’s protected status. But that is akin to
the “should have known” requirement that we have repeatedly rejected.
Hauser’s retaliation claim also fails.
                                             ***
      The judgment of the district court is AFFIRMED.




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