# 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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 Case: 20-50482 Document: 00515849231 Page: 1 Date Filed: 05/05/2021No. 20-50482

2 I.
Briggs Equipment is a dealer of in dustrial equipment with branches throughout the southern and southeastern United States. Koteras began his tenure at Briggs as a salesman in it s San Antonio branch in 1987. Over the next thirty years, he steadily climbe d the company ladder, first to Laredo branch manager in 2003, then to San Antonio branch manager in 2005, and finally to San Antonio joint bran ch 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 stra tegy also included a geographical reorganization. In the early stages of its implementation, Briggs added the Austin branch to Koteras’s responsibilit ies 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 interv iews with all twenty-six branch employees. During this evaluation, Ko teras received mixed reviews from his colleagues—some commended his manage ment of the branch while others criticized certain aspects of his leader ship. Koteras did not receive a raise that spring because of the performanc e 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 jo int branch and sales manager role and Case: 20-50482 Document: 00515849231 Page: 2 Date Filed: 05/05/2021No. 20-50482

3 employ separate branch managers and sa les managers as it did at its other locations. Briggs determin ed 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 Powe r, 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 discharg e” because of his age. Briggs filed a motion for summary judgment. Applying the McDonnell Douglas framework, the district court conclu ded that a fact issue exists as to Koteras’s prima facie case of age discri mination 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 whet her 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 st andard 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 Case: 20-50482 Document: 00515849231 Page: 3 Date Filed: 05/05/2021No. 20-50482

4 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 compensa tion, 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 plai ntiff must show that his age was the but-for cause of his emplo yer’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 appliesto 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. Case: 20-50482 Document: 00515849231 Page: 4 Date Filed: 05/05/2021No. 20-50482

5 The parties do not dispute that Kote ras established a prima facie case of age discrimination. Briggs has offere d two legitimate, non-discriminatory reasons for Koteras’s demotion: (1) orga nizational 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-disc riminatory 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 termin ation). Thus, the only question is whether Koteras produced sufficient evid ence 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 demo nstrate only that Briggs’s poor-performance re ason is pretextual. He takes the same approach on appeal. Koteras’s opening brief ag ain only challenges one of Briggs’s legitimate, non-discriminatory rea sons 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). Case: 20-50482 Document: 00515849231 Page: 5 Date Filed: 05/05/2021No. 20-50482

6 Koteras also argues in his openin g 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 we re to exercise our discretion to address his forfeited argument, it is meritless in an y event. For Koteras fails to explain how Briggs’s reasons are inconsistent. Indeed, they are entirely consistent: Briggs was reorganizing, the joint posi tion was eliminated—consistent with the structure at other locations—to better fit the needs of the growing San Antonio and Austin branches, and Ko teras 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 reorga nization 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 sepa rately.” In effect, Koteras argues

2 The failure to make an argument befo re 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 relinquishm ent 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.”). Case: 20-50482 Document: 00515849231 Page: 6 Date Filed: 05/05/2021No. 20-50482

7 that Briggs offered three reasons—strate gic 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 pr etextual 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. 20 11) (“Arguments raised for the first time in a reply brief are forfeited.”). Forfeiture notwithstanding, this argument also lacks merit. Eliminatin g the joint branch and sales manager position was a result of Briggs’s strategic reorgani zation—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 performa nce. The district court rightly recognized this distinction—as did Kote ras 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 fo r his demotion, he fails to create a genuine dispute as to whet her 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. Case: 20-50482 Document: 00515849231 Page: 7 Date Filed: 05/05/2021