     Case: 19-50255      Document: 00515238026         Page: 1    Date Filed: 12/16/2019




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

                                                                           FILED
                                    No. 19-50255                   December 16, 2019
                                  Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk
DARRELL WARD,

       Plaintiff – Appellant,
v.

GRAY TELEVISION GROUP, INCORPORATED, doing business as KOSA,

       Defendant - Appellee,


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CV-404


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Darrell Ward appeals the entry of summary judgment on his age-
discrimination claim. Ward worked on and off as a TV weatherman in Midland,
Texas for thirty years. In 2012, Gray Television Group’s Midland TV station
(“CBS 7”) hired Ward and agreed to a three-year contract that expired on June
30, 2015. Ward alleges that on his second day on the job Jose Gaona, CBS 7’s
news director, told him to dye his gray hair black. Three years later, Ward’s
contract expired. CBS 7 refused to renew it.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50255
      CBS 7 instead hired Tom Tefertiller. A 2015 market study showed
Tefertiller rated favorably amongst Midland weathercasters. And an earlier
2012 study showed Tefertiller ranked highest amongst Midland TV viewers.
By contrast, Ward ranked lowest. Believing that Tefertiller was “the weather
guy” and that bringing him on would be an “upgrade,” CBS 7 hired him.
      Ward sued, claiming violations of the federal Age Discrimination in
Employment Act and Texas state law. The district court granted summary
judgment for CBS 7. We review de novo. Laxton v. Gap, Inc., 333 F.3d 572, 578
(5th Cir. 2003).
      We begin with his federal claim. Ward must show that his age was the
“but for” cause of the nonrenewal of his contract. Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 176 (2009). Since Ward relies on circumstantial evidence, we
apply the burden-shifting framework of McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973). First, a plaintiff must set out a prima facie case of
discrimination. Second, the employer must provide a legitimate, non-
discriminatory explanation. Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349
(5th Cir. 2007). Third, the plaintiff must show “the employer’s explanation is
false or unworthy of credence.” Laxton, 333 F.3d at 578.
      The parties do not contest Ward’s prima facie case. Thus, we only review
whether Ward raises “a genuine issue of material fact regarding the evidence
presented to support [CBS 7’s] legitimate, non-discriminatory reason.”
Berquist, 500 F.3d at 356. An employer’s “subjective assessment” can be
legitimate as long as an employer provides a “clear and reasonably specific
basis” for it. See Alvarado v. Tex. Rangers, 492 F.3d 605, 616–17 (5th Cir.
2007).
      Here, Ward has not met his burden to establish a fact dispute regarding
CBS 7’s legitimate reason. CBS 7 pointed to Midland TV market studies and
their belief that Tefertiller was “the weather guy” to improve ratings. See
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                                  No. 19-50255
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“[E]ven
an incorrect belief that an employee's performance is inadequate constitutes a
legitimate, nondiscriminatory reason.”). CBS 7’s proffered reason is sufficient.
      Next, Ward argues there’s still a genuine dispute of material fact because
he’s shown that CBS 7’s reason was merely pretext for discrimination. Ward
makes several arguments. He begins by arguing CBS 7 incorrectly evaluated
his performance by preferring a replacement with a meteorology degree and by
using flawed market data to incorrectly evaluate weathercasters in Midland.
For support, he cites to out-of-circuit precedent. See Ryther v. KARE 11, 108
F.3d 832, 837 (8th Cir. 1997). The relevant dispute, however, is not whether
CBS 7 made the correct evaluation in reaching their non-renewal decision, but
whether “the decision was made with discriminatory motive.” Mayberry, 55
F.3d at 1091. As a result, unlike Ryther, our circuit has held that “dispute[s]
in the evidence concerning . . . job performance” are not a “sufficient basis” to
infer an employer’s “proffered justification is unworthy of credence.” Id.; accord
Sanstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (“Merely
disputing Appellee’s assessment of his performance will not create an issue of
fact.”). Moreover, to the extent Ward argues that the market data was
purposefully biased, he has pointed to no evidence to back up this claim. See
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 n.6 (5th Cir. 1988)
(“Merely casting doubt on the employer’s articulated reason does not suffice to
meet the plaintiff ’s burden of demonstrating discriminatory intent.”).
      Ward additionally argues he’s shown pretext because CBS 7 decided not
to renew his contract before they told him about it. But Ward has not shown
how that delay in communicating their decision undermines CBS 7’s reason.
See Gross, 557 U.S. at 176; cf. Little v. Republic Refining Co., 924 F.2d 93, 97–
98 (5th Cir. 1991) (“[Defendant] argues persuasively that the timing of the
justification’s preparation proves nothing.”). The delay only shows the decision
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took time. Cf. Hernandez v. Metro. Transit Auth. of Harris Cty., 673 F. App’x
414, 419 (5th Cir. 2016) (noting courts “decline” to be “super-personnel
department[s]” reexamining “business decisions.” (quotation omitted)).
      Ward further argues that Gaona’s statement that “[we] would like you
to color your hair” is enough to show pretext. But one alleged remark three
years before Ward’s nonrenewal is insufficient to create a fact issue. See Reed
v. Neopost USA, Inc., 701 F.3d 434, 441–42 (5th Cir. 2012) (finding “sporadic”
remarks “untethered to specific speakers or times” to be “insufficient”); Kelly
v. Costco Wholesale Corp., 632 F. App’x 779, 782–83 (5th Cir. 2015) (“[T]he
court has consistently found that stray remarks are not enough to demonstrate
discriminatory animus, and nothing indicates that [the manager’s] comment
was anything other than a stray remark.”).
      We have carefully considered Ward’s other arguments and hold they are
without merit.
      AFFIRMED.




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