Koteras v. Briggs Eqip

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Case: 20-50482     Document: 00515849231         Page: 1     Date Filed: 05/05/2021




              United States Court of Appeals
                   for the Fifth Circuit                               United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                           May 5, 2021
                                  No. 20-50482
                                                                         Lyle W. Cayce
                                                                              Clerk
   Richard Koteras,

                                                           Plaintiff—Appellant,

                                       versus

   Briggs Equipment, Incorporated,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 5:19-CV-851


   Before Ho, Oldham, and Wilson, Circuit Judges.
   Per Curiam:*
          Richard Koteras brought a claim under the Age Discrimination in
   Employment Act (ADEA), 29 U.S.C. §§ 621–34, and appeals the district
   court’s grant of summary judgment in favor of his employer, Briggs
   Equipment. We affirm.




          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50482     Document: 00515849231          Page: 2   Date Filed: 05/05/2021




                                   No. 20-50482


                                        I.
          Briggs Equipment is a dealer of industrial equipment with branches
   throughout the southern and southeastern United States. Koteras began his
   tenure at Briggs as a salesman in its San Antonio branch in 1987. Over the
   next thirty years, he steadily climbed the company ladder, first to Laredo
   branch manager in 2003, then to San Antonio branch manager in 2005, and
   finally to San Antonio joint branch and sales manager in 2015.
          That same year, Briggs began implementing its “One Briggs”
   reorganization strategy to unify two components of its business—equipment
   sales and contractor equipment rentals—that had been operating essentially
   as distinct divisions.     The strategy also included a geographical
   reorganization. In the early stages of its implementation, Briggs added the
   Austin branch to Koteras’s responsibilities as joint branch and sales manager
   in San Antonio. Briggs, however, expected its “One Briggs” plan to lead to
   further personnel and equipment sales growth in these two branches and that
   they would soon “outgr[ow] the joint branch and sales manager position.”
          Early in 2016, several employees at the San Antonio branch raised
   concerns about branch management under Koteras to Briggs’s human
   resources director. These concerns prompted a “360 review” of the San
   Antonio branch, which included interviews with all twenty-six branch
   employees. During this evaluation, Koteras received mixed reviews from his
   colleagues—some commended his management of the branch while others
   criticized certain aspects of his leadership. Koteras did not receive a raise
   that spring because of the performance issues unveiled during the employee
   interviews.
         In light of its continuing reorganization, the expected needs of the San
   Antonio and Austin branches, and the 360 review of the San Antonio branch,
   Briggs decided to eliminate Koteras’s joint branch and sales manager role and




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                                   No. 20-50482


   employ separate branch managers and sales managers as it did at its other
   locations. Briggs determined that Koteras was better suited for sales and gave
   him the option to continue as the sales manager for the San Antonio and
   Austin branches at a reduced salary or to separate from the company with a
   severance package. Koteras, who was sixty years old at the time, accepted
   the sales manager position. Dane Power, thirty-eight years old, replaced
   Koteras as branch manager for the San Antonio and Austin branches.
   Koteras retired four months later at the end of 2016.
          Koteras sued Briggs in 2019, alleging violations of the ADEA by
   “demoting him and forcing his constructive discharge” because of his age.
   Briggs filed a motion for summary judgment. Applying the McDonnell
   Douglas framework, the district court concluded that a fact issue exists as to
   Koteras’s prima facie case of age discrimination and that Briggs articulated
   legitimate, non-discriminatory reasons for the demotion. McDonnell Douglas
   Corp. v. Green, 

411 U.S. 792

, 802–04 (1973). The district court granted
   Briggs’s motion for summary judgment on the ground that Koteras failed to
   create a genuine dispute as to whether Briggs’s proffered reasons for the
   demotion were pretextual. Koteras appealed.
                                        II.
          We review the district court’s grant of a motion for summary
   judgment de novo and apply the same standard as the district court. Jackson
   v. Cal-Western Packaging Corp., 

602 F.3d 374

, 377 (5th Cir. 2010). Summary
   judgment is appropriate “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). If the moving party meets its
   burden of showing that there is no genuine dispute—which it can do by
   pointing to the “absence of evidence supporting” the non-movant—the non-
   movant who will have the burden of proof at trial must produce evidence to




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                                         No. 20-50482


   establish a genuine issue. Duffy v. Leading Edge Prods., Inc., 

44 F.3d 308

, 312
   (5th Cir. 1995) (citation omitted). We examine the evidence in the light most
   favorable to the non-movant.

Id.
III.

           “Under the ADEA, it is ‘unlawful for an employer . . . to fail or refuse
   to hire or to 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.’” Reeves v. Sanderson
   Plumbing Prods., Inc., 

530 U.S. 133

, 141 (2000) (ellipsis in original) (quoting
   29 U.S.C. § 623(a)(1)). An ADEA plaintiff must show that his age was the
   but-for cause of his employer’s adverse action. Salazar v. Lubbock Cnty.
   Hosp. Dist., 

982 F.3d 386

, 389 (5th Cir. 2020) (citation omitted). When, as
   here, the plaintiff attempts to satisfy this burden with circumstantial
   evidence, the McDonnell Douglas burden-shifting framework applies.1

Id.
Under this framework,

the plaintiff must first establish a prima facie
   case of age discrimination.

Id. The burden then

shifts to the employer to
   offer a legitimate, non-discriminatory reason for the adverse action.

Id. The
plaintiff must

then demonstrate that “each reason was a pretext for
   discrimination.”

Id. at 391

n.2 (emphasis added) (citing Wallace v. Methodist
   Hosp. Sys., 

271 F.3d 212

, 220 (5th Cir. 2001)). See also 

Wallace, 271 F.3d at
212

(“The plaintiff must put forward evidence rebutting each of the
   nondiscriminatory reasons the employer articulates.”).




           1
             Neither party disputes on appeal that the McDonnell Douglas framework applies
   to ADEA claims. We will follow circuit precedent applying the framework to age-
   discrimination cases, as the Supreme Court has not spoken on this issue. 

Salazar, 982 F.3d
at 388

n.1.




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                                    No. 20-50482


          The parties do not dispute that Koteras established a prima facie case
   of age discrimination. Briggs has offered two legitimate, non-discriminatory
   reasons for Koteras’s demotion: (1) organizational restructuring resulting in
   job elimination and (2) Koteras’s poor job performance. See Berquist v.
   Wash. Mut. Bank, 

500 F.3d 344

, 356–57 (5th Cir. 2007) (holding that a
   departmental reorganization resulting in the elimination of the plaintiff’s
   position was a legitimate, non-discriminatory reason for the adverse
   employment action); Little v. Republic Refin. Co., Ltd., 

924 F.2d 93

, 96 (5th
   Cir. 1991) (holding that the plaintiff’s poor job performance was a legitimate,
   non-discriminatory reason for his termination). Thus, the only question is
   whether Koteras produced sufficient evidence to create a genuine dispute as
   to whether each of Briggs’s reasons for his demotion were pretexts for age
   discrimination. We agree with the district court that he did not.
          As the district court highlighted, Koteras’s response to Briggs’s
   motion for summary judgment “contains no information” as to why the
   reorganization reason is pretextual. Our review of Koteras’s response
   confirms that he never addressed it. He attempted to demonstrate only that
   Briggs’s poor-performance reason is pretextual. He takes the same approach
   on appeal. Koteras’s opening brief again only challenges one of Briggs’s
   legitimate, non-discriminatory reasons for his demotion—his poor job
   performance.    Because Koteras fails to address Briggs’s reorganization
   reason, he cannot demonstrate that “each reason was a pretext for
   discrimination.” 

Salazar, 982 F.3d at 391

n.2 (emphasis added).




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                                          No. 20-50482


           Koteras also argues in his opening brief that Briggs presented
   inconsistent reasons for his demotion. But he did not raise this argument
   before the district court. Therefore, he forfeits the right to raise it now.2
           Moreover, even if we were to exercise our discretion to address his
   forfeited argument, it is meritless in any event. For Koteras fails to explain
   how Briggs’s reasons are inconsistent. Indeed, they are entirely consistent:
   Briggs was reorganizing, the joint position was eliminated—consistent with
   the structure at other locations—to better fit the needs of the growing San
   Antonio and Austin branches, and Koteras was offered a position Briggs
   believed to better match his skills in sales.
           In the end, Koteras never addresses Briggs’s reorganization reason.
   In fact, in his reply brief, Koteras insists that there is “no reason to address”
   it because Briggs did not mention reorganization until the end of the relevant
   section of its summary-judgment motion. He further contends that Briggs’s
   job-elimination reason—which Briggs at times equates with reorganization
   and at times lists independently—and the poor-performance reason are one
   and the same and “cannot be viewed separately.” In effect, Koteras argues


           2
              The failure to make an argument before the district court “constitutes a
   forfeiture, not a waiver” of that argument on appeal. United States v. Zuniga, 

860 F.3d 276

,
   284 n.9 (5th Cir. 2017) (quotation omitted); see also United States v. Olano, 

507 U.S. 725

,
   733 (1993) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver
   is the intentional relinquishment or abandonment of a known right.” (internal quotation
   marks and citation omitted)). But “[r]egardless of whether [Koteras] waived or merely
   forfeited [his] arguments, [he] clearly ha[s] no right to raise them now.” Biziko v. Van
   Horne, 

981 F.3d 418

, 420 n.1 (5th Cir. 2020). It is up to the discretion of the court whether
   to consider forfeited arguments. See, e.g., Singleton v. Wulff, 

428 U.S. 106

, 121 (1976)
   (“The matter of what questions may be taken up and resolved for the first time on appeal
   is one left primarily to the discretion of the courts of appeals . . . . Certainly there are
   circumstances in which a federal appellate court is justified in resolving an issue not passed
   on below, as where the proper resolution is beyond any doubt[.]”); In re HECI Expl., Inc.,
   

862 F.2d 513

, 519 (5th Cir. 1988) (“[T]he decision whether to entertain an argument not
   raised in the trial court is within the discretion of the appellate court.”).




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                                    No. 20-50482


   that Briggs offered three reasons—strategic reorganization, job elimination,
   and poor performance—the first of which he has no need to address, while
   the second and third “cannot be viewed separately.” As such, he maintains
   that the job-elimination reason is pretextual because the poor-performance
   reason is pretextual, and he devotes the remainder of his reply brief to this
   argument.
          But, again, Koteras did not make this argument at the district court or
   in his opening brief on appeal. Therefore, it too is forfeited. Conway v. United
   States, 

647 F.3d 228

, 237 n.8 (5th Cir. 2011) (“Arguments raised for the first
   time in a reply brief are forfeited.”). Forfeiture notwithstanding, this
   argument also lacks merit. Eliminating the joint branch and sales manager
   position was a result of Briggs’s strategic reorganization—the joint position
   didn’t exist at Briggs’s other branches, and the San Antonio and Austin
   branches were “outgr[owing]” the role. This is a single reason, separate and
   distinct from Koteras’s job performance.          The district court rightly
   recognized this distinction—as did Koteras in his opening brief on appeal.
   Yet he still refuses to address the reorganization reason.
          Accordingly, because Koteras fails to address one of Briggs’s
   legitimate, non-discriminatory reasons for his demotion, he fails to create a
   genuine dispute as to whether that reason was pretextual. He must address
   each reason. We therefore need not address Briggs’s second proffered
   reason for Koteras’s discharge. See 

Salazar, 982 F.3d at 391

n.2.
          Affirmed.




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