United States Court of Appeals

for the Fifth Circuit

No. 21-30438

William B. Lawson, 

Plaintiff—Appellant,

versus

Excel Contractors, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:19-CV-834

Before Barksdale, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

William Lawson worked as a welding inspector for Excel Contractors, 

L.L.C., from April 2016 until August 2017, when he took a two-week leave of 

absence after experiencing heart problems. During Lawson’s leave, Excel 

hired someone to temporarily replace him and promoted one of his peers; 

both individuals were substantially younger than Lawson. When Lawson 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2022

Lyle W. Cayce

Clerk

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returned to work, Excel assigned him to office tasks; he had previously 

worked primarily in the field. Excel terminated Lawson four months later, 

citing the need to downsize. However, Excel did not terminate Lawson’s 

replacement, who had transitioned to permanent work, or his recently 

promoted peer. Lawson filed this suit five months later. He alleged that, by 

failing to promote or retain him, Excel unlawfully discriminated against him 

because of his age and disability and retaliated against him for taking leave. 

Excel moved for summary judgment, which the district court granted. 

Lawson timely appeals.

For the following reasons, we AFFIRM the district court.

I. Facts & Procedural History

Lawson is a certified welding inspector who is in his sixties. He started 

working for Excel in April 2016, after Excel acquired Lawson’s previous 

employer, Ron Williams Construction. Excel is a Baton Rouge–based 

construction company that provides pipefitting and welding services for a 

varying number of new and maintenance contracts. Excel hired Lawson as a 

Quality Assurance/Quality Control (“QA/QC”) Inspector. At the time, 

Excel employed only one other QA/QC Inspector, George “Gene” 

Anderson, who also came from Ron Williams Construction. Anderson, who 

is twenty years younger than Lawson, oversaw Excel’s pipe fabrication shop. 

Lawson, in contrast, floated from project to project while also supervising 

Excel’s Firestone maintenance contract. Lawson and Anderson worked 

under the supervision of a QA/QC Manager, until that person resigned in 

June 2017. Allegedly, rather than promote someone to replace the QA/QC 

Manager, Excel gave Lawson and Anderson both raises and told them that 

they would be equal in rank going forward.

On August 21, 2017, Lawson became dizzy and started feeling chest 

pains while on a jobsite. He went home to recover and see a doctor. The next 

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day, Lawson saw his family physician, who referred him to a cardiologist. The 

cardiologist conducted an angiogram on Lawson, revealing some arterial 

blockage that the cardiologist described as “pretty much normal” for 

someone of Lawson’s age and mobility. The cardiologist prescribed Lawson 

statin, increased the dosage of his blood pressure medicine, and cleared him 

to work beginning the first week of September. Lawson subsequently 

received a second return-to-work slip from Excel’s company physician. Both 

the cardiologist and company physician cleared Lawson’s return without 

restriction. He returned to work at Excel on September 6, 2017. 

Excel made some changes while Lawson was out. Within a few days 

of Lawson leaving work, Excel hired David Currie to temporarily replace him 

as the QA/QC Inspector at its Westlake Petrochem project. Allegedly, that 

project temporarily shut down shortly after Excel hired Currie, meaning

Currie mostly worked in the office until Lawson returned. When Lawson did 

return, Excel retained Currie and transferred him to its Indorama project. 

Currie is seventeen years younger than Lawson.

Meanwhile, sometime in August 2017, Excel promoted Anderson to 

the recently vacated QA/QC Manager position, effective September 1, 2017. 

Excel says that it selected Anderson for the position because he had more

seniority within the organization: Anderson began working for Ron Williams 

Construction, which Excel acquired, several years before Lawson. 

Additionally, Lawson was having trouble completing critical paperwork for 

the Firestone contract in a timely fashion whereas Anderson was current on 

his work. Lawson alleges, however, that he was more qualified for the 

promotion than Anderson. Although Anderson had worked as a QA/QC

Inspector for nearly twenty years, Lawson had worked in the industry longer 

than Anderson and had once been Anderson’s interim supervisor at Ron 

Williams Construction.

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Upon his return to work, Lawson completed paperwork related to 

winding down the Firestone contract, which Excel had recently lost. As noted 

above, Lawson had mostly worked in the field before this change. Although 

Lawson also did some work for the Westlake Petrochem project, which had 

resumed, that project shut down again soon after he returned. As a result, 

Lawson stayed in the office closing out the Firestone contract, which he 

completed in January.

Around the same time, Excel’s work started drying up in southwest 

Louisiana, where Lawson was based. Given the nature of Excel’s business, it 

regularly increases and decreases its workforce to account for fluctuating 

market conditions. In January 2018, Excel submitted Lawson’s resume in 

connection with a “seven figure bid” for the proposed Juniper construction 

project. If Excel won the project, it would have chosen Lawson as its lead 

QA/QC Inspector. But Excel was not selected, causing it to consider Lawson 

for termination under an ongoing workforce reduction once he closed the 

Firestone project. On January 25, 2018, less than two hours after he 

completed the Firestone project, Excel terminated Lawson. In the six months 

preceding Lawson’s termination, Excel laid off 564 employees, 64 percent of 

whom were under the age of forty. Although Excel did not fire Anderson or 

Currie during this downsizing, Anderson resigned in February 2018 and

Currie resigned in March 2018. Excel did not fire Currie because it had 

submitted his resume in connection with its bid for the smaller Juniper 

planning project, which it still hoped to win.

After exhausting his administrative remedies, Lawson sued Excel in 

federal court, asserting claims under the Americans with Disabilities Act 

(“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the 

Family and Medical Leave Act (“FMLA”). Excel moved for summary 

judgment. The district court granted Excel’s motion and entered final 

judgment. 

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II. Standard of Review

This court reviews orders granting summary judgment de novo. 

Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016). “Summary judgment is 

appropriate only when ‘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.’” Shepherd ex rel. Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 

282–83 (5th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). “A party cannot 

defeat summary judgment with conclusory allegations, unsubstantiated 

assertions, or only a scintilla of evidence.” Lamb v. Ashford Place Apartments 

L.L.C., 914 F.3d 940, 946 (5th Cir. 2019) (quotation omitted). The court 

“must view the evidence in the light most favorable to the non-moving party, 

drawing ‘all justifiable inferences . . . in the non-movant’s favor.’” Renwick 

v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (quoting Env’t 

Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008)).

III. Discussion

Lawson challenges the district court’s dismissal of his claims, 

contending that he proffered enough evidence to overcome summary 

judgment and that the district court misapplied the law. We address his 

arguments below.

A. Age Discrimination

The ADEA makes it unlawful for an employer to “discharge any 

individual or otherwise discriminate against any individual . . . because of 

such individual’s age.” 29 U.S.C. § 623(a)(1). “To establish an ADEA claim, 

the plaintiff must show that his age was the ‘but-for’ cause of his 

termination—proving that age was a ‘motivating factor’ for the decision is 

not enough.” McMichael v. Transocean Offshore Deepwater Drilling, Inc., 

934 F.3d 447, 455 (5th Cir. 2019) (quoting Gross v. FBL Fin. Servs., Inc., 

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557 U.S. 167, 180 (2009)). “A plaintiff may prove that age was a but-for cause 

of his firing with direct or indirect evidence.” McMichael, 934 F.3d at 455. 

Lawson relies on indirect evidence to support his age discrimination 

claim. Courts evaluate indirect evidence of discrimination using the 

McDonnell Douglas burden-shifting framework. Id. at 456 (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973)). This requires a plaintiff to first 

establish a prima facie case of discrimination. McMichael, 934 F.3d at 456. To 

do so under the ADEA, a plaintiff must show that he (1) suffered an adverse 

employment action; (2) “was qualified for the position”; (3) belonged to the 

protected age group at the time of the discharge; and (4) was either “replaced 

by someone younger,” “replaced by someone outside the protected class,”

or “otherwise discharged because of his age.” Keller v. Coastal Bend Coll., 

629 F. App’x 596, 600 (5th Cir. 2015), as revised (Mar. 22, 2016) (citing 

Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)).

If the plaintiff makes a prima facie case, then “the burden shifts to the 

employer to provide a legitimate, non-discriminatory reason for the 

employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th 

Cir. 2007). Assuming the employer articulates a non-discriminatory reason, 

“the plaintiff must rebut the employer’s purported explanation by showing 

that the reason given is merely pretextual.” McMichael, 934 F.3d at 456. A 

plaintiff can establish pretext “by showing that: (1) ‘a discriminatory reason 

more likely motivated’ the employer; (2) the employer’s ‘reason is unworthy 

of credence’; or (3) he ‘is “clearly better qualified” than the person selected 

for the position.’” Id. at 457 (quoting Bienkowski v. Am. Airlines, Inc., 851 

F.2d 1503, 1505 (5th Cir. 1988) and Burrell v. Dr. Pepper/Seven Up Bottling 

Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007)). It is the plaintiff’s burden to 

present enough evidence “for a reasonable jury to believe that” the 

employer’s “reasons are pretexts for unlawful discrimination.” McMichael, 

934 F.3d at 456–57 (quoting Bienkowski, 851 F.2d at 1507).

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Lawson brought ADEA claims stemming from Excel’s decisions to 

promote Anderson and retain Currie. The district court implicitly concluded

that Lawson had established a prima facie case of age discrimination. It held 

that Lawson had failed to rebut Excel’s evidence of legitimate, 

nondiscriminatory reasons for promoting Anderson and terminating Lawson. 

Specifically, Excel asserted that it promoted Anderson because Lawson was 

behind on closing out the Firestone contract and that it terminated Lawson 

pursuant to a lawful reduction in force. Excel also argued that Lawson was 

not better qualified for the promotion than Anderson.

On appeal, Lawson maintains that the district court improperly 

limited its pretext analysis to whether he was “clearly better qualified” than 

Anderson and Currie, and ignored probative evidence of pretext. He 

emphasizes that although “a showing that a plaintiff is ‘clearly better 

qualified’ is one way of demonstrating that the employer’s explanation is a 

pretext, it is not the only way” and that “[p]retext may be shown by any 

evidence which demonstrate[s] the employer’s proffered reason is false.” 

Burrell, 482 F.3d at 412 n.11. We consider in turn Lawson’s arguments 

regarding Excel’s promotion and termination decisions.

The district court correctly held that Lawson failed to rebut Excel’s 

legitimate, nondiscriminatory reasons for promoting Anderson. As an initial 

matter, Lawson was not clearly the better qualified candidate. Lawson had 

been in the industry longer than Anderson, but both candidates met Excel’s 

minimum competency requirements. Moreover, Anderson was more senior 

than Lawson within Excel, as he started working at Ron Williams 

Construction several years before Lawson. These are legitimate business 

reasons for promoting Anderson over Lawson. And when conducting the 

pretext analysis, this court does not “engage in second-guessing of an 

employer’s business decisions.” LeMaire v. Louisiana Dep’t of Transp. & 

Dev., 480 F.3d 383, 391 (5th Cir. 2007).

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Even setting aside the issue of qualifications, however, Lawson still 

cannot show pretext. Lawson says he fell behind on closing out the Firestone 

contract while out on leave. But record evidence shows that he was already 

struggling to keep up before his leave. In his deposition, Lawson testified that 

before his leave he had to “work[] at home on nights and weekends working 

on these [Firestone] packages without any compensation at all because [he] 

had been so snowed under with no help.” Lawson also faults the district court 

for crediting an affidavit submitted by Barry Carpenter, who was Excel’s 

QA/QC Director. Allegedly, the affidavit lacks credibility because it contains 

a “sea of material factual misstatements.” But Lawson himself acknowledges 

that “[c]redibility determinations are not part of the summary judgment 

analysis.” Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 

451, 458 (5th Cir. 2002). Thus, although Carpenter’s affidavit gets a few 

dates and times wrong, the district court was nonetheless entitled to rely on 

it. At bottom, Lawson has not proffered any competent summary judgment 

evidence to show that Excel’s legitimate, non-discriminatory reasons for not 

promoting him were pretextual.

Lawson also failed to show a genuine dispute of material fact regarding

Excel’s decision to terminate him but not Anderson or Currie was pretextual. 

He argues that (1) Excel had no reason to terminate him during its 

downsizing, particularly while it retained Anderson and Currie; (2) Excel did 

not consider his untimely completion of the Firestone closeout paperwork 

when it decided to terminate him; (3) Excel placed Currie on the Juniper 

project when it could have selected him; and (4) Excel hired a new QA/QC 

Inspector who was fifteen years younger than him in March 2018. 

Additionally, Lawson identifies as evidence of pretext an alleged statement 

of Anderson, expressing regret that Excel was “cut[ting] the inspection 

division because it was so shorthanded.”

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These arguments are unavailing. To begin, by the time Excel 

terminated Lawson, Anderson was his supervisor. This difference in rank 

dooms any claim Lawson may bring based on Anderson’s retention. For this 

reason, Lawson focuses his arguments on Currie. Those arguments also fail. 

Lawson’s primary contentions concern Excel’s reduction in force around the 

New Year. Lawson does not dispute that Excel was downsizing, but he says 

that it unlawfully selected him for termination based on his age. Evidence 

shows, however, that Lawson’s billable work had been declining for 

months—he had zero billable hours in January 2018. Although Currie’s 

billable hours also slowed in January, he did bill some hours that month. 

Moreover, Excel had included Currie’sresume in connection with part of the 

proposed Juniper planning project, which it had not yet heard back from. 

Lawson says that Excel could have considered him for the Juniper planning 

project, but he ignores that Excel did include his resume in its bid for the 

more substantial Juniper construction project, which Excel lost. Lawson is 

correct that Excel hired a QA/QC Inspector in March 2018 who was younger 

than Lawson. But it did so only after Anderson and Currie unexpectedly quit.

And there is no evidence that, despite being eligible for rehire following his 

termination, Lawson applied for that position before Excel made a hiring 

decision.

Finally, Lawson argues that Anderson’s statement that his division 

was shorthanded “suggests that Excel maintained sufficient work in the 

inspection division at the time of [his] discharge to justify retaining him.” 

Excel argues that this statement is inadmissible hearsay because Anderson 

was not deposed and did not submit an affidavit in this case. Rather, Lawson 

testified in his deposition that Anderson made the statement. Lawson 

responds that the statement falls within an exception to the hearsay rule. 

However, even if Anderson’s statement were admissible, it remains 

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undisputed that hours were down in the division and that Lawson had zero 

billable hours in January 2018. Anderson thus cannot show pretext.

B. Disability Discrimination

The McDonnell Douglas burden shifting framework also applies to 

Lawson’s ADA claim. E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 

606, 615 (5th Cir. 2009). Here, the district court never reached the burden 

shifting analysis because it concluded that Lawson failed to make a prima 

facie case of discrimination. Specifically, the district court concluded that 

Lawson’s heart problems did not render him disabled under the ADA. Before 

this court, Lawson asserts that he is disabled under the ADA because he has 

an actual disability, was regarded as having a disability by Excel, and has a 

longstanding record of being disabled. Lawson bases his disability claim on 

his hypertension and coronary artery blockage.

Under the ADA, employers cannot discriminate against “a qualified 

individual on the basis of a disability in regard to . . . [the] discharge of 

employees, employee compensation, job training, and other terms, 

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To 

succeed on an ADA claim, a plaintiff must show that he (1) has a “disability”; 

(2) was “qualified” for the position; and (3) suffered an adverse employment 

decision “solely because of his disability.” Atkins v. Salazar, 677 F.3d 667, 

675 (5th Cir. 2011) (quoting Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 

1092 (5th Cir. 1996) (per curiam)). “An individual has a disability under the 

[ADA] if he or she (1) has a physical or mental impairment that substantially 

limits one or more major life activities; (2) has a record of such impairment, 

or (3) is regarded as having such impairment.” Atkins, 677 F.3d at 675 

(quotation omitted).

The district court correctly concluded that Lawson is not disabled

under the ADA. First, Lawson does not have a “physical or mental 

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impairment that substantially limits one or more major life activities.” Id.

Lawson notes that the ADA defines “major life activities” to include “the 

operation of a major bodily function, including but not limited to, functions 

of the . . . circulatory [system].” 42 U.S.C. § 12102(2)(B). But Lawson offers 

no evidence showing that his heart condition “substantially limits” the 

function of his circulatory system. In fact, his cardiologist opined that he was

“pretty much normal” for someone of his age and mobility. For the same 

reason, Lawson has not identified any evidence establishing a record of a 

disability. And although Lawson says his employer regarded him as disabled, 

Excel cleared him to work without restriction. To be sure, Excel assigned 

Lawson to desk work when he returned, which Lawson says was because 

Excel did not feel comfortable with him “climbing.” But as described above, 

Excel had independent reasons to assign him to desk work. Specifically, 

Lawson needed to finish closing out the Firestone contract. At any rate, even 

assuming Lawson had established a prima facie case of discrimination, his 

ADA claim would fail under the McDonnell Douglas burden shifting analysis.

As previously explained, Lawson cannot show a genuine dispute of material 

fact necessary to rebut Excel’s nondiscriminatory reasons for failing to 

promote and subsequently terminating him.

C. Leave Retaliation

Finally, Lawson brought a claim for FMLA retaliation.1 Allegedly, 

Excel’s decisions to promote Anderson over Lawson and to subsequently 

terminate Lawson were at least partially in response to Lawson’s need to take 

leave. Like Lawson’s other indirect-evidence claims, “[r]etaliation claims for 

exercising FMLA rights are subject to the McDonnell Douglas burden-shifting 

1 In the operative complaint, Lawson also brought an FMLA interference claim, 

which the district court dismissed. But Lawson did not brief the FMLA interference claim 

and later clarified that he is “not proceeding with an FMLA interference claim” on appeal.

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framework.” Amedee v. Shell Chem., L.P., 953 F.3d 831, 835 (5th Cir. 2020). 

To make a prima facie case of retaliation, a plaintiff must show that “(1) ‘he 

was protected under the FMLA;’ (2) ‘he suffered an adverse employment 

action;’ and (3) ‘he was treated less favorably than an employee who had not 

requested leave under the FMLA or the adverse decision was made because 

he sought protection under the FMLA.’” Campos v. Steves & Sons, Inc., 

10 F.4th 515, 527 (5th Cir. 2021) (quoting Mauder v. Metro. Transit Auth., 446 

F.3d 574, 583 (5th Cir. 2006)). Satisfying the “final element requires proof 

of a causal link.” Campos, 10 F.4th at 527.

The district court rejected Lawson’s retaliation claim because (1) he 

failed to show a genuine dispute of material facts that Excel would not have 

fired him “but for” engaging in activity protected under the FMLA and 

(2) Lawson failed to show a genuine dispute of material fact that Excel’s 

nondiscriminatory reasons for terminating him were pretextual. On appeal, 

Lawson argues that the district court applied the wrong causation standard 

to his FMLA retaliation claim, causing it to erroneously rule his prima facie 

case insufficient. But even if Lawson had established a prima facie case of 

FMLA retaliation, he would still be required to show a genuine dispute of 

material fact under McDonnell Douglas that Excel’s nonretaliatory reasons for 

failing to promote and subsequently terminating him were pretextual. As 

previously stated, that he cannot do. Thus, we need not further consider his 

argument regarding the causal link. See id. at 520 (“We may affirm a 

summary judgment on any ground supported by the record . . . .”). It follows 

that Lawson’s retaliation claim also fails.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court.

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