IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40005

Summary Calendar

DONALD KILGORE,

Plaintiff - Appellant

v.

BROOKELAND INDEPENDENT SCHOOL DISTRICT,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No: 9:11-CV-155

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:

*

Donald Kilgore appeals the district court’s order granting defendant

Brookeland Independent School District’s motion for summary judgment on his

Age Discrimination in Employment Act (“ADEA”) claim.

1 We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2013

Lyle W. Cayce

Clerk

* 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.

1 The district court also granted Brookeland summary judgment on Kilgore’s Texas

Labor Code claim. He does not pursue a challenge of that decision on appeal.

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FACTS AND PROCEEDINGS

Brookeland employed Kilgore as a bus driver from 2003 to 2006 and

again from 2009 to 2011. In spring 2011, faced with possible budget cuts,

Brookeland decided to reorganize its bus routes, which would eliminate the

need for one bus driver.

2 According to Brookeland, it decided that Kilgore

would be the eliminated driver because he had the most job performance

issues. So it did not send Kilgore a notice of reasonable assurance of

employment that spring.

3 The school superintendent met with Kilgore to

inform him of the district’s decision. He explained that the bus driver position

was being eliminated due to budget cuts and, according to Kilgore, noted that

Kilgore was “eligible for retirement.” Kilgore was 72 years old at the time.

Over the summer of 2011, the Texas Legislature passed a budget that

allowed Brookeland to retain all five bus routes. One of Brookeland’s teachers,

John Thacker, expressed an interest in the reinstated bus driver position, and

the superintendent hired him. According to the superintendent, he selected

Thacker for the bus driver position rather than contacting Kilgore because he

preferred to have a bus driver without performance issues. Thacker was 54

years old when Brookeland hired him.

2 At various points in the record, Brookeland inconsistently claims that it made the final

decision to eliminate the route in the spring and that it made the contingent decision to

eliminate the route if the anticipated budget cuts were implemented, but did not make a final

decision in the spring.

3 As Brookeland explains, a notice of reasonable assurance of employmentis a letter that

a school district provides to at-will employees who work only when school is in session. Districts

send the letters near the end of the school year to employees that they anticipate employing in

the coming school year. These letters do not guarantee employment. Kilgore received such a

letter in all his years of employment by Brookeland prior to 2011, except for 2006, when he quit

his job.

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Kilgore filed suit against Brookeland in September 2011, alleging that

Brookeland discriminated against him on the basis of his age when it

terminated his employment as a bus driver, in violation of the ADEA and the

Texas Labor Code. Following discovery, Brookeland filed a motion for

summary judgment on

both claims. The district court referred the motion to a magistrate judge, who

issued a report and recommendation finding that Kilgore did not proffer direct

evidence of discrimination and failed to rebut Brookeland’s nondiscriminatory

reason for its decision to terminate Kilgore. Kilgore filed his objections to the

report, which the district court overruled. Upon de novo review, the district

court agreed with the magistrate judge, adopting the magistrate judge’s report

and recommendation and granting Brookeland’s motion for summary

judgment.

Kilgore appeals, arguing that the district court erred in concluding that

he presented no direct evidence of discrimination and failed to rebut

Brookeland’s proffered nondiscriminatory reason for terminating him.

DISCUSSION

We “review a district court’s grant of summary judgment de novo,

applying the same standard as did the district court.” Stults v. Conoco, Inc.,

76 F.3d 651, 654 (5th Cir. 1996). Summary judgment is appropriate if there is

no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We

view facts in the light most favorable to the non-movant and draw all

reasonable inferences in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th

Cir. 1996). But we “may affirm summary judgment on any legal ground raised

below, even if it was notthe basis for the district court’s decision.” Performance

Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).

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Kilgore first argues that the superintendent’s commentthat Kilgore was

“eligible for retirement” is sufficient direct evidence to create a genuine issue

of material fact with respect to his discrimination claim. A plaintiff may prove

his discrimination claim by direct evidence or he may follow the McDonnell

Douglas framework to prove his case with indirect evidence. See Reed v.

Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)). “Direct evidence of discrimination is

evidence which, if believed, would prove the existence of a fact (i.e., unlawful

discrimination) without any inferences or presumptions.” Bodenheimer v. PPG

Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993); see Moss v. BMC Software, Inc., 610

F.3d 917, 929 (5th Cir. 2010) (explaining that, “for an age-based comment to be

probative of an employer’s discriminatory intent, it must be direct and

unambiguous, allowing a reasonable jury to conclude without any inferences or

presumptions that age was an impermissible factor in the decision to terminate

the employee,” and for such evidence to be sufficient to prove age

discrimination, it must be “1) age related, 2) proximate in time to the

employment decision, 3) made by an individual with authority over the

employment decision at issue, and 4) related to the employment decision at

issue”) (internal quotation marks omitted).

We agree with Brookeland and the district court that the

superintendent’s alleged comment that Kilgore was “eligible for retirement” is

not direct evidence from which a reasonable jury could conclude that

Brookeland terminated Kilgore because of his age. The superintendent’s

“statement simply recognized a fact concerning” Kilgore’s eligibility, “an

observation which did not imply” that his eligibility “was the reason for

discharge.” E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir.

1996). And “[t]his interpretation of the statement is consistent with the

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context in which it was allegedly made,” as it was natural for the

superintendent to inform Kilgore of the benefits to which he was entitled upon

his termination. Id. Nothing in the superintendent’s comment suggests that

Kilgore was terminated because of his eligibility for retirement; therefore, the

comment is not direct evidence of discrimination. The district court did not err

in concluding that there was no genuine issue of direct evidence of age

discrimination.

Although Kilgore did not provide direct evidence of discrimination, he

may nevertheless prove his case using the McDonnell Douglas evidentiary

framework. See Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1504 (5th Cir.

1988). Under this procedure, he must first establish a prima facie case of age

discrimination. See id. at 1504-05. The burden of production then shifts to

Brookeland to rebut the presumption of discrimination created by the prima

facie case, which it does “by articulating a legitimate, nondiscriminatory reason

for its disparate treatment” of Kilgore. Id. at 1505. If Brookeland carries its

burden, Kilgore must prove that Brookeland’s “reasons are pretexts for

unlawful discrimination either by showing that a discriminatory reason more

likely motivated” Brookeland or by showing that Brookeland’s “reason is

unworthy of credence.” Id. Kilgore “retains the burden of persuading the fact

finder that impermissible discrimination motivated the adverse employment

decision.” Id.

To establish a prima facie case that Brookeland discriminated against

him because of his age in violation of the ADEA, Kilgore must show 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.” Bodenheimer, 5 F.3d at 957.

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Kilgore has established his prima facie case. He was discharged from his

position as a bus driver for Brookeland; he was qualified to be a bus driver; he

was 72 years old when he was discharged; and he was replaced by Thacker, who

was 54 years old.

In response, Brookeland was required to provide a legitimate,

non-retaliatory reason for the discharge. There is some confusion here as to

when Brookeland discharged Kilgore. Brookeland inconsistently claims at

some points that it discharged him in spring 2011, when it decided not to send

Kilgore a letter of reasonable assurance, and at other points that it did not

discharge him until late summer, when it decided to rehire Thatcher rather

than Kilgore as the fifth bus driver. Brookeland, however, has articulated

legitimate, nondiscriminatory reasons for each of these decisions. It asserted

that it did not send the letter of reasonable assurance because it planned to

reduce the number of bus drivers from five to four in the face of possible budget

cuts. A reduction in force is a legitimate, nondiscriminatory reason for

discharge. See Tex. Instruments, 100 F.3d at 1181. And it explained that it

made its decision to fill the reinstated fifth bus driver position with Thatcher

rather than Kilgore because it preferred a bus driver without job performance

issues. Performance deficiencies are also a legitimate reason for discharge. See

Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986).

The burden thus fell on Kilgore to rebutthese legitimate reasons. He has

failed to show a genuine issue of pretext with respect to either explanation. He

did not attempt to show that Brookeland’s fear of budget cuts was

unwarranted. Neither did he contend that the job performance concerns

Brookeland cited were untrue or that other bus drivers employed by

Brookeland had more numerous or serious performance issues. He has,

therefore, not created a genuine issue that these reasons are unworthy of

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credence. Furthermore, the only evidence Kilgore supplied of an age-based

motive is the superintendent’s comment concerning Kilgore’s retirement

eligibility, which, by itself, is an insufficient basis for a reasonable jury to

conclude that Kilgore’s age more likely motivated Brookeland’s decision to

discharge him than either of Brookeland’s proffered reasons. The district court

did not err when it determined that there was no genuine issue of material fact

regarding pretext.

CONCLUSION

For the reasons given above, the district court’s order granting summary

judgment for Brookeland is AFFIRMED.

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