IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20168

Summary Calendar

TRAVIS SIMMONS, 

 Plaintiff - Appellant

v.

SAIA MOTOR FREIGHT LINE, L.L.C., 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:15-CV-1010

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.1

PER CURIAM:*

Plaintiff-Appellant Travis Simmons (“Simmons”) appeals the district 

court’s grant of summary judgment on his age discrimination claim in favor of 

Defendant-Appellee SAIA Motor Freight Line, L.L.C. (“SAIA”). Finding no 

reversible error, we AFFIRM.

 

1 Judge Haynes concurs in the judgement only. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2018

Lyle W. Cayce

Clerk

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I. Background and Procedural History

Simmons began working for SAIA in 1976. He started his employment 

as a “dock worker/city driver,” and later became a line haul truck driver. In 

May 2012, Sam Lynch, a Safety Manager for SAIA’s Houston Terminal, 

commented to Simmons that SAIA was spending too much on insurance for 

him and that he had too many injuries. He told Simmons, “SAIA is getting rid 

of all you old Bucks and bringing in young Bucks to take your place.” Simmons 

was 61 at the time. Lynch then told Simmons, “SAIA wants young, productive 

drivers in good health.” About a week later, Don Langford, an Assistant 

Terminal Manager, and David Hanlon, an Operations Manager, approached 

Simmons and asked, “Travis, don’t you think it’s time to retire?” Hanlon then 

commented, “He does not need to retire, just go home, because he can’t handle 

this job.” When Simmons responded he did not know what Langford and 

Hanlon were talking about because he did not steal from SAIA, Hanlon 

remarked, “Yes, you do steal from SAIA, always being hurt, always costing 

SAIA a lot of money and complaining about everything, just go home man.” 

Several months later on October 9, 2012, Lynch again observed that 

SAIA was spending too much on Simmons and he had too many injuries. He

again commented about SAIA getting rid of “old bucks” in favor of “young 

bucks.” Lynch stated SAIA wanted young and productive drivers and that 

SAIA considered Simmons a “walking liability.” He commented that no black 

drivers had ever been able to retire from SAIA’s Houston facility. That same 

night, Langford showed up uninvited to the church where Simmons’ grandchild 

was being baptized. In the parking lot after the baptism, Langford told 

Simmons and his wife that Simmons should consider retiring soon. When 

Simmons said he wanted to work until he was 65, Langford responded that 

“time may not be on your side” and that no black driver had ever retired from 

SAIA’s Houston Terminal. The next evening, Delbert Bryer, the Houston 

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Terminal Manager, suggested Simmons should retire before being replaced by 

a younger driver. Two other SAIA managers separately overheard Langford

saying SAIA needed to get rid of the older drivers, and in one instance Langford 

was specifically referring to Simmons.

Less than a month later on November 1, 2012, Simmons was involved in 

an accident while driving a line haul route. The accident resulted in the rear 

trailer of the truck flipping over and disconnecting from the lead trailer. 

Simmons reported the incident to SAIA and stated he was forced off the road 

by an independent trucker, a practice about which he had previously 

complained to SAIA’s CEO. Tom Lillywhite, the Regional Human Resources 

Manager, spoke with Simmons the day after the accident. After speaking with 

Simmons, Lillywhite concluded no other driver was involved in the accident 

and Simmons instead fell asleep at the wheel. The incident was also 

investigated by Sheldon McCabe, a Regional Safety Manager out of Tennessee. 

McCabe conducted the investigation, rather than Lynch (who would normally 

have done the investigation), at Simmons’ request. McCabe reviewed the 

insurance adjustor’s report, Lillywhite’s report, and interviewed Simmons. 

McCabe agreed with Lillywhite’s conclusion that no independent trucker had 

been involved and that Simmons had fallen asleep while driving. 

After the incident, a conference call took place with Lillywhite, Bryer, 

McCabe, and three other SAIA management team members, none of whom are 

alleged to have made any sort of comments to Simmons. During this call, 

McCabe and Lillywhite noticed inconsistencies in Simmons’ statements made 

during their respective interviews of him. Simmons’ accident was deemed a 

major accident because it was considered preventable and it involved 

significant property damage. Based on the information from the conference 

call, the reports, and his conversation with Simmons, Lillywhite determined 

Simmons’ should be terminated. SAIA’s policy is for a Human Resources 

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manager to make the final decision regarding an employee’s termination. On 

November 20, 2012, Lillywhite and Bryer called Simmons to inform him of the 

termination decision. Lillywhite told Simmons he could resign in lieu of 

termination. On November 21, 2012, Simmons’ employment was terminated. 

Simmons filed suit in district court, alleging SAIA terminated his 

employment because of his age, race and disability, in violation of the Age 

Discrimination Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Title 

VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. After discovery, SAIA filed 

a motion for summary judgment. Simmons filed a response in opposition as to 

his age discrimination claim, but voluntarily dismissed his race and disability

discrimination claims. Simmons now appeals the district court’s grant of 

summary judgment in favor of SAIA.

II. Standard of Review

This court reviews a grant of summary judgment de novo, applying the 

same summary judgment standard as the district court below. Smith v. Reg’l 

Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (citing United States v. 

Lawrence, 276 F.3d 193, 195 (5th Cir. 2001)). “Although summary judgment is 

not favored in claims of employment discrimination, it is nonetheless proper 

when ‘there is no genuine issue as to any material fact and . . . the moving 

party is entitled to a judgment as a matter of law.’” Waggoner v. City of 

Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993) (quoting Fed. R. Civ. P. 56) 

(internal citations omitted). “A genuine issue of material fact exists ‘if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Crawford v. Formosa Plastics Corp., Louisiana, 234 F.3d 899, 

902 (5th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986)). “We view the evidence in the light most favorable to the non-moving 

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party and avoid credibility determinations and weighing of the evidence.” 

Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010). 

III. Discussion

On appeal, Simmons claims the district court erred by applying the 

burden shifting framework of McDonnel Douglas2 to his age discrimination 

claim. He argues that because he brought forth direct evidence of 

discrimination, he did not need to establish a prima facie case of 

discrimination; the direct evidence he presented was sufficient by itself for his 

claim to withstand summary judgment. 

Under the ADEA, “[i]t shall be unlawful for an employer . . . 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.” 29 U.S.C. § 623(a)(1). “To establish an ADEA claim, ‘[a] 

plaintiff must prove by a preponderance of the evidence (which may be direct 

or circumstantial), that age was the ‘but-for’ cause of the challenged employer 

decision.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)

(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)). Direct evidence 

is evidence that, if believed, would prove discrimination without any inferences 

or presumptions. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th 

Cir. 2005). This court applies a four-part test to determine whether comments 

 

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (discussing how a 

plaintiff with only circumstantial evidence of discrimination must first establish a prima 

facie case of discrimination before the burden shifts to the defendant to identify a nondiscriminatory reason for the adverse employment action). In his brief, Simmons refers 

several times to the burden shifting framework of Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989); however, he appears to be discussing the McDonnell Douglas framework. The Price 

Waterhouse mixed-motives framework (used when an employee suffers an adverse 

employment action based on both permissible and impermissible considerations) does not 

apply in age discrimination cases under the ADEA because age must be the but-for cause of 

the adverse employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173 (2009). 

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made in the workplace constitute direct evidence of discrimination and are 

therefore sufficient to overcome summary judgment. Rodriguez v. Eli Lilly & 

Co., 820 F.3d 759, 764 (5th Cir. 2016) (quoting Reed v. Neopost USA, Inc., 701 

F.3d 434, 441 (5th Cir. 2012)). To qualify as direct evidence, the workplace 

comments must be: 1) related to the plaintiff’s age; 2) proximate in time to the 

plaintiff’s termination; 3) made by individuals with authority over the 

termination decision; and 4) related to the termination decision. Id. (quoting 

Auguster v. Vermillion Par. Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001)).

Comments that do not meet these criteria are considered “stray remarks” and 

are insufficient on their own to defeat summary judgment. Jackson, 602 F.3d 

374, 380 (5th Cir. 2010). 

Simmons argues the statement by Delbert Bryer that he should consider 

retiring before SAIA replaced him with a younger driver qualifies as direct 

evidence.3 According to Simmons, this comment meets the four-part test and 

constitutes direct evidence of discrimination because it was made less than 60 

days before Simmons was terminated, Bryer participated in “the discussion 

concerning Simmons’ termination,” and the statement related to Simmons’ 

termination because the other SAIA managers “openly discussed” and 

confirmed “SAIA’s ‘plan’ to replace older drivers.” 

We assume arguendo Bryer’s comment relates to Simmons’ age and was 

proximate in time to his termination and turn to the third and fourth factors. 

As for the third factor, the record does not support an inference that Bryer had 

authority over the decision to terminate Simmons. Bryer participated on a 

conference call with five other people where the accident and insurance 

adjuster’s report were discussed. During this call, McCabe and Lillywhite

 

3 Simmons does not argue that any of the age-related statements by the other SAIA 

managers constitute direct evidence, most likely because none of the other statements were 

made by anyone who even arguably had the authority to terminate his employment.

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noted some inconsistencies in Simmons’ statements during the investigation. 

As a result of this information, and the fact that Simmons’ accident was 

deemed a major accident, Lillywhite—not Bryer—made the final decision to 

terminate Simmons’ employment. At most, Bryer can be said to have

participated in the discussion about Simmons’ termination.

However, even if it could be said that Bryer participated in the decision

to fire Simmons and that participation is sufficiently equivalent to authority,

there is nothing supporting an inference that Bryer’s statement, made prior to

Simmons’ accident, related to Lillywhite’s decision to terminate Simmons. Nor 

can the age-related comments by the other managers transform Bryer’s 

statement from a stray remark about retirement into direct evidence of Bryer’s

discriminatory intent regarding the specific decision to terminate Simmons 

after his accident. This is not to say that Bryer’s and the other managers’ 

statements have no evidentiary value; merely that they qualify as 

circumstantial evidence rather than direct evidence. Accordingly, the district 

court did not err in concluding that Simmons did not present direct evidence 

of age discrimination and that the McDonnell Douglas framework applied to 

Simmons’ claim.4

The district court’s judgment is AFFIRMED.

 

4 Simmons does not contend he satisfied the McDonnell Douglas framework; therefore, 

we do not address that issue.

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