IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60533

Summary Calendar 

JACK S. CHESTER, 

 Plaintiff - Appellant 

v. 

DIRECTV, L.L.C., 

 Defendant - Appellee 

Appeal from the United States District Court

Southern District of Mississippi 

USDC No. 3:13-CV-111

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges. 

PER CURIAM:*

Plaintiff-Appellant Jack Chester appeals the district court’s summary 

judgment in favor of Defendant-Appellee DIRECTV, L.L.C. (“Directv”). For 

the following reasons, we affirm. 

I. Facts & Procedural History 

From 2003 through 2008, Chester worked as an installer and technician

for a company in Mississippi named Bruister and Associates, Inc. (“Bruister”). 

 

* 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

Fif h Circuit

FILED

March 30, 2017

Lyle W. Cayce

Clerk

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In 2008, Bruister was acquired by Directv. After the acquisition, Directv hired 

Chester and a year later promoted him to the position of field supervisor. As 

field supervisor, Chester was responsible for supervising a team of installers 

and technicians and was required to ensure that the team maintained certain 

target numbers associated with performance and service. 

In April 2011, Directv conducted an annual site survey that revealed 

that the Jackson office, where Chester was employed, had scored below several 

other sites. One measurement of performance Directv uses is called Service on 

Service (“SOS”). SOS refers to repeat service following an installation or repair 

within a certain timeframe. SOS is measured in 30, 60, and 90-day increments. 

SOS targets are 1% or below for 30 days, 1.5% or below for 60 days, and 2% or 

below for 90 days. The concept behind the SOS target metrics is that customers 

will be less satisfied if they are required to make repeated calls after receiving 

initial service or repair for a given problem. 

Because Chester’s numbers exceeded the target percentages, he received 

a disciplinary write-up in March 2012. Additional reasons for the write-up 

included Chester’s team’s failure to meet “standards for completion rate, new 

install completion rate, and quality assurance percentages.” In April 2012, 

another site survey was conducted that again revealed substandard 

performance rates by Chester’s team. As a result, Directv’s Regional Vice 

President Tim Cole met with four field supervisors, including Chester, and 

Chester’s direct supervisor, branch manager Lee Branning. Cole expressed his 

dissatisfaction with the off-target percentages and gave Chester and the other 

field supervisors 30 days to make improvements. 

A few months later, Chester “wrote up” an office administrator after the 

two had a disagreement about equipment needed for repairs. Soon thereafter, 

Branning and Mike McKelvaine of Human Resources called Chester and

explained that he did not have the authority to issue a write-up on the office 

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administrator. Chester was then issued a write-up because his correspondence 

regarding the office administrator was deemed unprofessional. The write-up 

also included a reference to Chester’s continued failure to meet Directv’s target 

percentages relating to performance.1 Chester was informed that this was his 

“final warning.” 

In late 2012, Chester and the other field supervisors again met with 

Branning and McKelvaine, as well as Chuck Tomlinson, another member of 

upper management, to discuss performance and productivity rates. During 

these meetings, each field supervisor met individually with the management 

team. During Chester’s meeting, he was questioned about his technicians’ 

performance, including the best and worst performers that he supervised. 

According to Directv, Chester incorrectly answered several inquiries, revealing 

that he was unaware as to who performed the best and the worst on the team 

he supervised. Consequently, the management team determined that 

Chester’s previous receipt of discipline, write-ups, and warnings, his continued 

substandard performance rates, and his lack of knowledge about his own team 

warranted his termination from the company. 

Following his termination in September 2012, Chester filed a complaint 

with the Equal Employment Opportunity Commission and later filed suit in 

federal court. In the district court proceedings, Chester alleged claims of age 

discrimination against Directv arguing that, although he was purportedly fired 

due to his off-target performance rates and disciplinary history, the other 

younger field supervisors who had similarly failed to meet the target SOS rates

and received discipline were not fired.2 In response, Directv argued that 

 

1 Chester’s team’s SOS numbers at this time were: (1) 2.6% for 30 days (target was 1% 

or below); (2) 4.7% for 60 days (target was 1.5% or below); and (3) 6.6% for 90 days (target 

was 2% or below). 

2 When Chester was terminated, he was 59 years old. At the time, one of the other 

three field supervisors was 43-years-old and two were under the age of 40.

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Chester was fired due to his continued failure to meet target SOS rates after 

receiving several warnings, his previous receipt of discipline, and his lack of 

knowledge about the performance of the technicians he supervised—not 

because his age. Directv filed a motion for summary judgment on grounds that 

Chester had failed to establish a prima facie case of age discrimination. The 

district court rendered summary judgment in favor of Directv holding that 

Chester had failed to establish that his age was the “but-for” cause of his 

termination. 

In its reasons for judgment the district court noted Chester’s record of 

substandard performance within the company and the multiple warnings he 

received prior to his termination, his unprofessional conduct toward the office 

administrator, his failure to provide evidence that he gave accurate answers 

regarding his technicians’ performance rates during his final meeting with 

upper management, and Directv’s subsequent firing of one of the younger field 

supervisors a few months after Chester’s termination. The district court also 

referenced the fact that Directv hired Chester at the age of 56 and promoted 

him a year later, after the company acquired Bruister, suggesting that his age 

was not a factor in their consideration of whether to employ him. Chester filed 

this appeal. 

II. Standard of Review 

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

applying the same standards as the district court.” Hagen v. Aetna Ins. Co., 

808 F.3d 1022, 1026 (5th Cir. 2015). Summary judgment is appropriate if the 

record evidence shows that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(a); Robinson v. Orient Marine Co., 505 F.3d 364, 366 (5th Cir. 2007). 

“Unsubstantiated assertions, improbable inferences, and unsupported 

speculation are not sufficient to defeat a motion for summary judgment.” See 

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Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). “[R]easonable 

inferences are to be drawn in favor of the non-moving party.” Robinson, 505 

F.3d at 366. “A panel may ‘affirm summary judgment on any ground supported 

by the record, even if it is different from that relied on by the district court.’” 

Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012).

III. Discussion 

On appeal, Chester argues that the district court erred in holding that 

he failed to provide evidence of age discrimination. Chester avers that “he can 

show pretext and that [Directv] has not offered a legitimate non-discriminatory 

reason for terminating [him].” We disagree. 

 “Under the Age Discrimination in Employment Act (ADEA), an employer 

may not ‘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.’” Phillips v. Leggett & Platt, 

Inc., 658 F.3d 452, 455 (5th Cir. 2011) (quoting 29 U.S.C. § 623(a)(1)). To 

establish a prima facie case of age discrimination under the ADEA, a plaintiff 

must show that he was: (1) terminated; (2) qualified for the position from which 

he was terminated; (3) within the protected age group at the time of 

termination; and (4) replaced by someone younger or outside the protected 

class, or otherwise discharged because of his age. Phillips, 658 F.3d at 455. To 

ultimately succeed on a claim of age discrimination, “[a] plaintiff must prove 

by a preponderance of the evidence. . . 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). 

In the proceedings below, the district court noted that neither party 

disputed that Chester had proven the first three of the four elements required 

to establish a prima facie case of age discrimination under the ADEA, i.e., he 

was terminated, he was qualified for the position from which he was 

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terminated, and he was within a protected age group at the time of 

termination. See Phillips, 658 F.3d at 455. The parties are in dispute, 

however, as to whether Chester has shown the fourth element—that he was 

replaced by someone younger or outside of the protected class or, alternatively, 

that he was otherwise discharged because of his age. Id. 

Chester advances on appeal that he proved the final element of his prima 

facie case by providing evidence that the younger field supervisors had similar

off-target SOS rates and disciplinary histories but were not fired like he was; 

he does not claim that he was replaced by a younger employee. Our review of 

the record reveals that, although some of the other field supervisors did receive 

write-ups for off-target SOS rates and performance deficiencies, there is no 

evidence that any of the other supervisors received disciplinary action for 

unprofessional conduct similar to that of Chester’s toward the office 

administrator. Further, there is no evidence that any other field supervisor 

incorrectly answered questions regarding the performance levels of the 

technicians that he supervised like Chester allegedly did during his interview 

with upper management. So although it may be true that the other field 

supervisors had off-target SOS scores like Chester, a more reasonable reading 

of the evidence suggests that the combination of Chester’s continued 

substandard work performance, worsening SOS rates after multiple warnings, 

his documented unprofessional conduct, his receipt of discipline, and his 

demonstrated lack of knowledge about the technicians he supervised resulted 

in his being assessed with an overall worse job performance than the other 

supervisors. Moreover, as the district court pointed out, one of the other 

“younger” field supervisors was fired a few months after Chester due to his 

failure to improve his SOS scores, again suggesting that Directv based its 

decision to terminate Chester—and the younger supervisor—on their poor job 

performances rather than their ages. All of these details indicate that 

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Chester’s age was not a factor, much less a deciding factor, in Directv’s decision 

to fire him. 

 Citing Mayberry v. Vought Aircraft Company, Chester argues in the 

alternative that he did not commit the alleged violation for which he was 

terminated, i.e., he did not incorrectly answer the questions about the 

performance rates of the technicians he supervised during his meeting with 

upper management. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 

(5th Cir. 1995) (providing that “a prima facie case may be established by 

showing that the plaintiff did not violate the work-rule for which he was 

disciplined.”). This argument also fails. As the district court reasoned, Chester 

failed to present any specific evidence that he accurately answered the 

questions regarding his team’s performance. Rather, he simply stated that he 

answered the questions correctly. He could not, however, provide the district 

court with the accurate information he claims to have provided during the 

meeting or that he would present at trial if given the opportunity. 

Additionally, in the event that he did give the correct answers but was 

misunderstood at the meeting, there is no evidence that Chester made an effort 

to correct any perceived miscommunications with the management team at 

any time. Perhaps even more significantly, Chester had been given a “final 

warning” several months prior to being questioned about the performance of 

his individual technicians, but his SOS rates continued to worsen. This 

suggests that, even if it is somehow debatable that Chester gave inaccurate 

answers at the meeting, his worsening field performance after his final 

warning combined with his disciplinary history and unprofessional conduct 

toward the office administrator, would have nevertheless resulted in his 

termination. 

In conclusion, we see no error in the district court’s holding that Chester 

failed to demonstrate a genuine issue of material fact by presenting either 

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direct or circumstantial evidence that he was terminated from Directv due to 

his age. See Fed. R. Civ. P. 56(a); Robinson, 505 F.3d at 366. Consequently, 

he has failed to establish a prima facie case of age discrimination under the 

ADEA and the district court properly rendered summary judgment in favor of 

Directv. See Phillips, 658 F.3d at 455.3 

IV. Conclusion 

For the aforementioned reasons, the district court’s summary judgment 

in favor of Defendant-Appellee Directv is AFFIRMED. 

 

3 Chester devotes a significant portion of his appellate and reply briefs to the district 

court’s limited mention of the fact that Directv hired Chester at the age of 56 and promoted 

him a year later, pointing to Directv’s citation of “Fifth Circuit precedent that states that it 

is irrational for an employer to show animus in termination but not in hiring.” See Brown v. 

CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). Chester argues that this “same actor 

inference argument” is unsupported by the facts and contradicts the requirement that “all 

reasonable inferences are to be drawn in favor of the non-moving party.” Robinson, 505 F.3d 

at 366. Assuming arguendo that the “same actor inference” was somehow improperly applied 

by the district court here, the record contains ample evidence supporting the district court’s 

conclusion that Chester failed to establish a prima facie case of age discrimination under the 

ADEA by showing that he was terminated due to his age, see Phillips, 658 F.3d at 455, and 

as previously stated infra, we may properly “affirm summary judgment on any ground 

supported by the record, even if it is different from that relied on by the district court.” Reed, 

701 F.3d at 438.

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