REVISED March 22, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40710

Summary Calendar

PETE KELLER, JR., 

 Plaintiff - Appellant

v.

COASTAL BEND COLLEGE, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:14-CV-7

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Pete Keller sued his former employer, Coastal Bend College, for 

violations of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1),

and Title VII, 42 U.S.C. § 2000e-2. The district court granted summary 

judgment in favor of Coastal Bend College. We AFFIRM.

 

* 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

October 26, 2015

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

Pete Keller (“Keller”), a fifty-two-year-old Hispanic male, worked for 

Coastal Bend College’s (“the College”) maintenance department as a carpenter 

and painter for approximately twenty-two years before his termination in July 

2013. In June 2013, Keller was assigned to paint the College’s day care center. 

After work commenced as scheduled, Kathleen Patton, the College’s Dean of 

Administration, and Mike Slaughter, the College’s Physical Plant Director and 

Keller’s direct supervisor, complained about Keller’s poor workmanship, the 

length of time it took him to complete certain assigned tasks, and his poor 

attitude. Upon learning of these complaints, Dr. Beatriz Espinoza, the 

College’s President, authorized Ms. Patton and Mr. Slaughter to terminate 

Keller’s employment on July 22, 2013. Keller’s position was then replaced by 

Lynn Harrison, a fifty-one-year-old, Caucasian male.1

In August 2013, Keller filed a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”), alleging that the College 

discriminated against him on the basis of age and race. The EEOC dismissed 

the charge and declined to take any further action. Keller then filed a 

complaint in the Southern District of Texas, and in response, the College filed 

a motion for summary judgment on October 22, 2014. Magistrate Judge Jason 

Libby issued a memorandum and recommendation to grant the College’s 

motion, overruling Keller’s evidentiary objections, and sustaining the College’s 

objections to Keller’s sham declaration testimony. The district court adopted 

the magistrate’s findings and recommendation to grant summary judgment on 

Keller’s claim under the Age Discrimination in Employment Act (“ADEA”), 

reaffirming that Keller could not establish a prima facie case of age 

 

1 The actual age of the replacement at the time of hiring is disputed. Regardless, the 

replacement employee was either the same age or one year younger than Keller. 

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discrimination. In addition, after conducting its own evidentiary review, the 

district court granted summary judgment with regard to Keller’s race 

discrimination claim and found that despite the existence of a prima facie case

under Title VII, Keller failed to carry his burden to prove pretext under the 

McDonnell Douglas framework.

Keller appeals the district court’s ruling as to his age and race

discrimination claims, and he asks this court to reverse the district court’s 

order and remand the matter for a jury trial on the merits. Keller also presents 

several evidentiary objections on appeal. First, Keller alleges that the district 

court erred by including Dr. Espinoza’s affidavit in the summary judgment 

record in violation of Federal Rule of Civil Procedure 37(c). Second, he contends

that the district court erred by not sustaining his hearsay objections to Dr. 

Espinoza’s affidavit. Third, he argues that the district court should have 

excluded all of the College’s summary judgment evidence because it was not 

properly authenticated by a business records affidavit. 

DISCUSSION

I. Evidentiary Rulings 

a. Standard of Review

Although this court generally reviews a grant of summary judgment de 

novo, when the trial court’s evidentiary rulings are also at issue, we review 

those rulings for abuse of discretion. See Tex. A&M Research Found. v. Magna 

Transp., Inc., 338 F.3d 394, 401 (5th Cir. 2003); Christophersen v. Allied-Signal 

Corp., 939 F.2d 1106, 1109 (5th Cir. 1991) (“[A]n appeal of a summary 

judgment presenting evidentiary issues raises two levels of inquiry. At the first 

level, we review the trial court's evidentiary rulings, which define the summary 

judgment record, and we give these rulings their due deference. At the second 

level, with the record defined, we review the trial court's summary judgment 

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decision de novo”), abrogated on other grounds by Daubert v. Merrell Dow 

Pharm., Inc., 509 U.S. 579 (1993). 

Further, when a party fails to file a written objection to the proposed 

findings, conclusions, and recommendation of a magistrate judge, this court 

reviews the district court’s adoption of any finding, conclusion, or 

recommendation for plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds. 

A reversal under plain error review occurs only when, inter alia, this court 

finds “an error that is clear and obvious.” Rushing v. Kansas City Southern Ry., 

185 F.3d 496, 506 (5th Cir. 1999), superseded by statute on other grounds. 

b. Federal Rule of Civil Procedure 37(c) and the Espinoza

Affidavit

Because the College did not disclose Dr. Espinoza as a witness, Keller 

argues that the Espinoza affidavit should not be included in the summary 

judgment record under Federal Rule of Civil Procedure 37(c) (“Rule 37”).

Pursuant to Rule 37, the district court determined that Dr. Espinoza’s affidavit 

could be admitted into evidence if the failure to disclose her identity was found 

to be harmless. The district court correctly found that “any prejudice to 

Plaintiff caused by Defendant’s failure to disclose Espinoza as a witness c[ould] 

be cured by deposing Espinoza” and allowed both parties to take her deposition 

and supplement the summary judgment record. See Tex. A&M, 338 F.3d at 402

(citation omitted). Keller urges this court to enforce Rule 37 as written, but

Rule 37 explicitly states that “[i]f a party fails to provide information or [the] 

identity of a witness as required . . . the party is not allowed to use that 

information or witness to supply evidence on a motion, at a hearing, or at a 

trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. 

P. 37(c)(1) (emphasis added). Accordingly, we find that the district court did 

not abuse its discretion. 

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c. Hearsay and the Espinoza Affidavit 

Keller next argues that the district court erred in overruling his 

evidentiary objection to the Espinoza affidavit because it is not based on 

personal knowledge and is “riddled with inadmissible hearsay.”2 The district 

court found Keller’s argument regarding hearsay unpersuasive and noted that 

Dr. Espinoza’s affidavit is not evidence of the truth of the allegations against 

Keller, but is evidence of Dr. Espinoza’s state of mind when she made a good 

faith reliance on a subordinate’s allegations regarding Keller’s work 

performance. 

When “an employer discharges an employee based on the complaint of 

another employee, the issue is not the truth or falsity of the allegation, but 

‘whether the employer reasonably believed the employee’s allegation and acted 

on it in good faith.’” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 

379 (5th Cir. 2010) (citation omitted); see also Nobles v. Cardno, Inc., 549 F. 

App'x 265, 268 (5th Cir. 2013) (relying on Jackson and holding that when 

complaints from other employees are offered to show the reasons for an 

employment action, the allegations are not hearsay). Accordingly, because Dr. 

Espinoza’s state of mind is the relevant factor, the district court did not abuse 

its discretion by admitting Dr. Espinoza’s affidavit into the summary judgment 

record.

 

2 Keller also objects on appeal to the magistrate’s finding that Dr. Espinoza had 

personal knowledge regarding the interview process for selecting Keller’s replacement after 

his termination. We review for plain error because Keller failed to object below. Douglass, 79 

F.3d at 1428-29. We have held that personal knowledge can stem from the affiant’s “sphere 

of responsibility” as a corporate employee. DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th 

Cir. 2005). Assessing only for plain error, because Dr. Espinoza was found to have the 

requisite knowledge based on her position as the president of the College, we do not disturb 

the magistrate’s finding. 

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d. Summary Judgment Documents 

Lastly, Keller objects on appeal to the inclusion of all documents 

attached to the College’s motion for summary judgment, except for his own 

deposition testimony, because the documents are not authenticated “by a 

proper business record affidavit.” The magistrate found that all of the exhibits 

were properly authenticated either by Dr. Espinoza in her affidavit or by Keller 

in his deposition.3 Because Keller failed to object to the magistrate’s 

authentication finding, this court’s review is limited to plain error. Douglass, 

79 F.3d at 128-29 (5th Cir. 1996). 

Federal Rule of Evidence 901 provides for methods of authentication. 

Fed. R. Evid. 901(b) (listing multiple methods of authentication); see also In re 

McLain, 516 F.3d 301, 308 (5th Cir. 2008) (noting that “Rule 901 does not limit 

the type of evidence allowed to authenticate a document. . . . [but] merely 

requires some evidence which is sufficient to support a finding that the 

evidence in question is what its proponent claims it to be”) (citation omitted)). 

Rule 901 does not preclude authentication by affidavit or deposition. See Rust 

v. Bank of Am., N.A., 573 F. App’x 343, 345 (5th Cir. 2014) (allowing a 

document to be authenticated under Rule 901(b)(1) by an affiant with 

knowledge swearing the document to be true and correct); Fed. R. Evid. 901(b).

Accordingly, we conclude that the district court did not plainly err by 

considering all documents submitted by the College in relation to its motion 

for summary judgment.

 

3 Dr. Espinoza testified in her affidavit that exhibits B-1, B-2, and B-3 were true and 

correct copies of documents maintained by the College. Exhibits A-1 through A-10 were 

discussed and authenticated by Keller during his deposition.

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II. Summary Judgment

a. Age Discrimination 

The district court adopted both the magistrate’s conclusion that Keller 

failed to establish a prima facie case for age discrimination under the ADEA

and the magistrate’s recommendation that summary judgment be granted 

with regard to Keller’s age discrimination claim. We review for plain error 

because Keller did not object to the magistrate’s conclusion and 

recommendation. Douglass, 79 F.3d at 1428-29.

Under the ADEA, an employer cannot “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). In order to establish a prima facie case 

of age discrimination under the ADEA the plaintiff must establish he (1) was 

within a protected class; (2) was qualified for the position; (3) suffered an 

adverse employment decision; and (4) was either i) replaced by someone 

outside the protected class, ii) replaced by someone younger, or iii) otherwise 

discharged because of his age. Jackson v. Cal-W. Packaging Corp., 602 F.3d 

374, 378 (5th Cir. 2010).

The magistrate found that though Keller could prove the first three 

requirements for a prima facie case, he could not fulfill the fourth requirement 

because he did not submit “any competent evidence” to show that he was 

discharged because of his age. At the time Keller was terminated, he was 52 

years old. Keller’s replacement was 51 or 52 at the time of hiring. The 

magistrate found this small distinction in age unpersuasive, stating that,

“[c]ontrary to Plaintiff’s argument that ‘as long as the replacement is younger, 

it does not matter how much younger,’ both Supreme Court and Fifth Circuit 

precedent establish otherwise.” See Leal v. McHugh, 731 F.3d 405, 411 (5th 

Cir. 2013) (citation omitted); see also Earle v. Aramark Corp., 247 F. App’x 519, 

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523 (5th Cir. 2007) (finding a four-year age difference insufficient to show a 

prima facie case of age discrimination) (citation omitted). 

Nevertheless, this court has also held that “regardless of how much 

younger [a plaintiff-employee’s] replacement is, a plaintiff in the protected 

class may still establish a prima facie case by producing evidence that he was 

‘discharged because of his age.’” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 

309 (5th Cir. 2004) (citations omitted). Keller has failed to present any evidence

showing that he was discharged because of his age other than his contention

that he was one year older than his replacement. Standing alone, this 

argument is insufficient. Therefore, the district court did not plainly err in 

adopting the magistrate’s conclusion and recommendation. 

b. Race Discrimination

The district court granted summary judgment in favor of the College on 

Keller’s race discrimination claim. This court reviews a district court’s grant of 

summary judgment de novo, “viewing all evidence in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that party’s 

favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (citation omitted). 

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). To prevail on a race discrimination 

claim a plaintiff must present direct or circumstantial evidence that race was 

a motivating factor for an adverse employment action. Nichols v. Loral Vought 

Sys. Corp., 81 F.3d 38, 40-41 (5th Cir. 1996). Because Keller relies on 

circumstantial evidence—his own “gut feeling”—that the College fired him 

because of his race, this court evaluates his claims under the McDonnell 

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Douglas burden-shifting framework.4 McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802-04 (1973); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 

(5th Cir. 2000). 

Under the McDonnell Douglas framework, the plaintiff-employee must 

first establish a prima facie case of discrimination. Byers, 209 F.3d at 425. Once 

a prima facie case is established, the employer-defendant must provide a 

legitimate, nondiscriminatory reason for the employee’s termination. Id. If the 

employer gives an adequate, nondiscriminatory reason for the employee’s 

termination, the burden shifts back to the plaintiff who “must then prove, by a 

preponderance of the evidence, that the proffered reason was mere pretext for 

discrimination.” Id. The College did not challenge Keller’s ability to establish 

a prima facie case of race discrimination; therefore, our analysis begins with 

whether the College carried its burden to articulate a legitimate 

nondiscriminatory reason for discharging Keller. See id. 

The College has articulated three reasons for Keller’s discharge: his poor 

workmanship, the delay in time it took him to complete the renovation project, 

and his poor attitude. Dr. Espinoza acknowledged these reasons in her 

affidavit, and in his deposition, Keller himself recognized that Ms. Patton and 

Mr. Slaughter were frustrated with his work product and untimeliness. Keller 

 

4 During his deposition Keller stated that he did not have any evidence that Patton or 

Slaughter bore any race-based animus toward him. It was only after Keller filed a charge 

with the EEOC and a complaint in the Southern District of Texas that he contended 

Slaughter called him a “slow Mexican worker” and “poison.” This court does not allow a party 

to manufacture an issue of fact in an affidavit that conflicts with prior deposition testimony 

without a satisfactory explanation. See Doe ex rel. Doe v. Dallas Independent School Dist., 

220 F.3d 380, 286 (5th Cir. 2000) (“If a party who has been examined at length on deposition 

could raise an issue of fact simply by submitting . . . [an] affidavit contradicting his own prior 

testimony, this would greatly diminish the utility of summary judgment as a procedure for 

screening out sham issues of fact.”). Notably, Keller has offered no explanation for why his 

testimony has changed. Therefore, the district court did not abuse its discretion in excluding 

Keller’s later statement. Having determined that the evidence the College submitted with 

their motion for summary judgment is admissible, and Keller’s sham affidavit is not, we are 

left with Keller’s subjective belief that he was terminated on the basis of his age and race. 

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argues that Espinoza’s affidavit is “conclusory,” and that “no jury would accept 

this . . . testimony.” However, the burden on the defendant at this stage is one 

of production, not persuasion. Reeves v. Sanderson Plumbing Prods., Inc., 530 

U.S. 133, 142 (2000); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248, 257 (1980) (“[An] employer need only produce admissible evidence which 

would allow the trier of fact rationally to conclude that the employment 

decision had not been motivated by discriminatory animus.”). For these

reasons, we find that the college has carried its burden to articulate a 

legitimate, nondiscriminatory reason for discharging Keller. 

In response, Keller puts forth several arguments to prove that the 

reasons proffered by the College for his termination are mere pretext. The 

arguments include: (1) Dr. Espinoza did not conduct an individual 

investigation into Keller’s behavior or past employment history; (2) the “cat’s 

paw” theory of discrimination should be imputed to Dr. Espinoza; (3) the 

College’s failure to follow an alleged progressive discipline policy proves 

pretext; and (4) Keller was treated unfairly when he was the only one blamed 

for the poor workmanship and delay of the renovation project. To show pretext 

by a preponderance of the evidence, this court requires a plaintiff to present 

evidence supporting an inference that the employer acted in bad faith or was 

motivated by discriminatory animus when terminating an employee. See

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). 

First, Keller’s contentions that Dr. Espinoza was required to engage in

an independent investigation and review his previous employment evaluations

when making an employment decision are not evidence of pretext because 

inaction does not show bad faith or discriminatory animus. See Sandstad, 309 

F.3d at 899 (holding that a defendant is “entitled to be unreasonable so long as 

it does not act with discriminatory animus” and that “[m]erely disputing [the 

defendant’s] assessment of his performance will not create an issue of fact.”).

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Second, Keller’s “cat’s paw” analysis fails because he did not submit evidence 

sufficient to establish the two required conditions: “(1) that a co-worker 

exhibited discriminatory animus, and (2) that the same co-worker ‘possessed 

leverage, or exerted influence, over the titular decisionmaker.’” Roberson v. 

Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (citations omitted). Third, 

although this court has held that an employer’s failure to follow its own 

progressive discipline policy can be evidence of pretext, Keller has failed to put

forth any evidence establishing that the College used such a policy.5 See 

Machinchick v. PB Power, Inc., 398 F.3d 345, 354 (5th Cir. 2005).

Finally, Keller has not shown that similarly situated employees, outside 

of his protected class were treated differently. Several of the employees Keller 

compares himself to had different job titles and responsibilities. See Sandstad, 

309 F.3d at 901 (noting that to establish pretext, a court must “compare the 

treatment of other employees whose conduct is ‘nearly identical’ to the 

plaintiff’s conduct and who were treated more favorably than the plaintiff” 

(citation omitted)). In addition, the remaining employees that worked on the 

day care center are not proper comparators because they are Hispanic. See 

Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (noting “[w]e 

have held ‘that in order for a plaintiff to show disparate treatment, she must 

demonstrate that the misconduct for which she was discharged was nearly 

identical to that engaged in by a[n] employee [not within her protected class] 

whom [the company] retained.’” (alternations in original) (citation omitted)). 

 

5 Dr. Espinoza initially referred to a “progressive discipline policy” in her deposition 

testimony; however, she described a policy that does not equate to Keller’s characterization 

of the same policy as one that involves “counseling sessions followed by an oral or verbal 

reprimand, a written reprimand, a suspension and/or probation, and then termination.”

Appellant’s Brief at 43 (citing Rogers v. City of Fort Worth, 89 S.W.3d 265, 281 (Tex. App. 

2002) (noting the general characteristics of a progressive discipline policy)).

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In conclusion, Keller cannot establish pretext on any of the theories that he 

puts forth, and thus, his race discrimination claim fails. 

CONCLUSION

For the foregoing reasons, the decision of the district court granting 

summary judgment is AFFIRMED. 

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