United States Court of Appeals 

for the Fifth Circuit 

No. 20-50482 

Richard Koteras, 

Plaintiff—Appellant, 

versus

Briggs Equipment, Incorporated, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:19-CV-851 

Before Ho, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Richard Koteras brought a claim under the Age Discrimination in 

Employment Act (ADEA), 29 U.S.C. §§ 621–34, and appeals the district 

court’s grant of summary judgment in favor of his employer, Briggs 

Equipment. We affirm. 

*

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opinion should not be published and is not precedent except under the limited 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

May 5, 2021 

Lyle W. Cayce 

Clerk 

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I. 

Briggs Equipment is a dealer of industrial equipment with branches 

throughout the southern and southeastern United States. Koteras began his 

tenure at Briggs as a salesman in its San Antonio branch in 1987. Over the 

next thirty years, he steadily climbed the company ladder, first to Laredo 

branch manager in 2003, then to San Antonio branch manager in 2005, and 

finally to San Antonio joint branch and sales manager in 2015.

That same year, Briggs began implementing its “One Briggs” 

reorganization strategy to unify two components of its business—equipment 

sales and contractor equipment rentals—that had been operating essentially 

as distinct divisions. The strategy also included a geographical 

reorganization. In the early stages of its implementation, Briggs added the 

Austin branch to Koteras’s responsibilities as joint branch and sales manager 

in San Antonio. Briggs, however, expected its “One Briggs” plan to lead to 

further personnel and equipment sales growth in these two branches and that 

they would soon “outgr[ow] the joint branch and sales manager position.”

Early in 2016, several employees at the San Antonio branch raised 

concerns about branch management under Koteras to Briggs’s human 

resources director. These concerns prompted a “360 review” of the San 

Antonio branch, which included interviews with all twenty-six branch 

employees. During this evaluation, Koteras received mixed reviews from his 

colleagues—some commended his management of the branch while others 

criticized certain aspects of his leadership. Koteras did not receive a raise 

that spring because of the performance issues unveiled during the employee 

interviews.

In light of its continuing reorganization, the expected needs of the San 

Antonio and Austin branches, and the 360 review of the San Antonio branch, 

Briggs decided to eliminate Koteras’s joint branch and sales manager role and 

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employ separate branch managers and sales managers as it did at its other 

locations. Briggs determined that Koteras was better suited for sales and gave 

him the option to continue as the sales manager for the San Antonio and 

Austin branches at a reduced salary or to separate from the company with a 

severance package. Koteras, who was sixty years old at the time, accepted 

the sales manager position. Dane Power, thirty-eight years old, replaced 

Koteras as branch manager for the San Antonio and Austin branches. 

Koteras retired four months later at the end of 2016.

Koteras sued Briggs in 2019, alleging violations of the ADEA by 

“demoting him and forcing his constructive discharge” because of his age. 

Briggs filed a motion for summary judgment. Applying the McDonnell 

Douglas framework, the district court concluded that a fact issue exists as to 

Koteras’s prima facie case of age discrimination and that Briggs articulated 

legitimate, non-discriminatory reasons for the demotion. McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802–04 (1973). The district court granted 

Briggs’s motion for summary judgment on the ground that Koteras failed to 

create a genuine dispute as to whether Briggs’s proffered reasons for the 

demotion were pretextual. Koteras appealed.

II. 

We review the district court’s grant of a motion for summary 

judgment de novo and apply the same standard as the district court. Jackson 

v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010). 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). If the moving party meets its 

burden of showing that there is no genuine dispute—which it can do by 

pointing to the “absence of evidence supporting” the non-movant—the nonmovant who will have the burden of proof at trial must produce evidence to 

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establish a genuine issue. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 

(5th Cir. 1995) (citation omitted). We examine the evidence in the light most 

favorable to the non-movant. Id. 

III. 

“Under the ADEA, it is ‘unlawful for an employer . . . to fail or refuse 

to hire or 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.’” Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (ellipsis in original) (quoting 

29 U.S.C. § 623(a)(1)). An ADEA plaintiff must show that his age was the 

but-for cause of his employer’s adverse action. Salazar v. Lubbock Cnty. 

Hosp. Dist., 982 F.3d 386, 389 (5th Cir. 2020) (citation omitted). When, as 

here, the plaintiff attempts to satisfy this burden with circumstantial 

evidence, the McDonnell Douglas burden-shifting framework applies.1

 Id. 

Under this framework, the plaintiff must first establish a prima facie 

case of age discrimination. Id. The burden then shifts to the employer to 

offer a legitimate, non-discriminatory reason for the adverse action. Id. The 

plaintiff must then demonstrate that “each reason was a pretext for 

discrimination.” Id. at 391 n.2 (emphasis added) (citing Wallace v. Methodist 

Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)). See also Wallace, 271 F.3d at 

212 (“The plaintiff must put forward evidence rebutting each of the 

nondiscriminatory reasons the employer articulates.”). 

1

 Neither party disputes on appeal that the McDonnell Douglas framework applies 

to ADEA claims. We will follow circuit precedent applying the framework to agediscrimination cases, as the Supreme Court has not spoken on this issue. Salazar, 982 F.3d 

at 388 n.1. 

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The parties do not dispute that Koteras established a prima facie case 

of age discrimination. Briggs has offered two legitimate, non-discriminatory 

reasons for Koteras’s demotion: (1) organizational restructuring resulting in 

job elimination and (2) Koteras’s poor job performance. See Berquist v. 

Wash. Mut. Bank, 500 F.3d 344, 356–57 (5th Cir. 2007) (holding that a 

departmental reorganization resulting in the elimination of the plaintiff’s 

position was a legitimate, non-discriminatory reason for the adverse 

employment action); Little v. Republic Refin. Co., Ltd., 924 F.2d 93, 96 (5th 

Cir. 1991) (holding that the plaintiff’s poor job performance was a legitimate, 

non-discriminatory reason for his termination). Thus, the only question is 

whether Koteras produced sufficient evidence to create a genuine dispute as 

to whether each of Briggs’s reasons for his demotion were pretexts for age 

discrimination. We agree with the district court that he did not. 

As the district court highlighted, Koteras’s response to Briggs’s 

motion for summary judgment “contains no information” as to why the 

reorganization reason is pretextual. Our review of Koteras’s response 

confirms that he never addressed it. He attempted to demonstrate only that 

Briggs’s poor-performance reason is pretextual. He takes the same approach 

on appeal. Koteras’s opening brief again only challenges one of Briggs’s 

legitimate, non-discriminatory reasons for his demotion—his poor job 

performance. Because Koteras fails to address Briggs’s reorganization 

reason, he cannot demonstrate that “each reason was a pretext for 

discrimination.” Salazar, 982 F.3d at 391 n.2 (emphasis added). 

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Koteras also argues in his opening brief that Briggs presented 

inconsistent reasons for his demotion. But he did not raise this argument 

before the district court. Therefore, he forfeits the right to raise it now.2

Moreover, even if we were to exercise our discretion to address his 

forfeited argument, it is meritless in any event. For Koteras fails to explain 

how Briggs’s reasons are inconsistent. Indeed, they are entirely consistent: 

Briggs was reorganizing, the joint position was eliminated—consistent with 

the structure at other locations—to better fit the needs of the growing San 

Antonio and Austin branches, and Koteras was offered a position Briggs 

believed to better match his skills in sales.

In the end, Koteras never addresses Briggs’s reorganization reason. 

In fact, in his reply brief, Koteras insists that there is “no reason to address” 

it because Briggs did not mention reorganization until the end of the relevant 

section of its summary-judgment motion. He further contends that Briggs’s 

job-elimination reason—which Briggs at times equates with reorganization 

and at times lists independently—and the poor-performance reason are one 

and the same and “cannot be viewed separately.” In effect, Koteras argues 

2

 The failure to make an argument before the district court “constitutes a 

forfeiture, not a waiver” of that argument on appeal. United States v. Zuniga, 860 F.3d 276, 

284 n.9 (5th Cir. 2017) (quotation omitted); see also United States v. Olano, 507 U.S. 725, 

733 (1993) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver 

is the intentional relinquishment or abandonment of a known right.” (internal quotation 

marks and citation omitted)). But “[r]egardless of whether [Koteras] waived or merely 

forfeited [his] arguments, [he] clearly ha[s] no right to raise them now.” Biziko v. Van 

Horne, 981 F.3d 418, 420 n.1 (5th Cir. 2020). It is up to the discretion of the court whether 

to consider forfeited arguments. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121 (1976) 

(“The matter of what questions may be taken up and resolved for the first time on appeal 

is one left primarily to the discretion of the courts of appeals . . . . Certainly there are 

circumstances in which a federal appellate court is justified in resolving an issue not passed 

on below, as where the proper resolution is beyond any doubt[.]”); In re HECI Expl., Inc., 

862 F.2d 513, 519 (5th Cir. 1988) (“[T]he decision whether to entertain an argument not 

raised in the trial court is within the discretion of the appellate court.”). 

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that Briggs offered three reasons—strategic reorganization, job elimination, 

and poor performance—the first of which he has no need to address, while 

the second and third “cannot be viewed separately.” As such, he maintains 

that the job-elimination reason is pretextual because the poor-performance 

reason is pretextual, and he devotes the remainder of his reply brief to this 

argument.

But, again, Koteras did not make this argument at the district court or 

in his opening brief on appeal. Therefore, it too is forfeited. Conway v. United 

States, 647 F.3d 228, 237 n.8 (5th Cir. 2011) (“Arguments raised for the first 

time in a reply brief are forfeited.”). Forfeiture notwithstanding, this 

argument also lacks merit. Eliminating the joint branch and sales manager 

position was a result of Briggs’s strategic reorganization—the joint position 

didn’t exist at Briggs’s other branches, and the San Antonio and Austin 

branches were “outgr[owing]” the role. This is a single reason, separate and 

distinct from Koteras’s job performance. The district court rightly 

recognized this distinction—as did Koteras in his opening brief on appeal. 

Yet he still refuses to address the reorganization reason. 

Accordingly, because Koteras fails to address one of Briggs’s 

legitimate, non-discriminatory reasons for his demotion, he fails to create a 

genuine dispute as to whether that reason was pretextual. He must address 

each reason. We therefore need not address Briggs’s second proffered 

reason for Koteras’s discharge. See Salazar, 982 F.3d at 391 n.2. 

Affirmed. 

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