Robert McMichael v. Transocean Offshore Deepwater , 934 F.3d 447 ( 2019 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60011 FILED
August 13, 2019
ROBERT MCMICHAEL, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED;
TRANSOCEAN RIGP DCL, L.L.C.; TRANSOCEAN OFFSHORE USA,
INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
Between 2014 and 2018, the defendants, Transocean Offshore
Deepwater et al., reduced their offshore fleet by 59%. While reducing their
fleet, Transocean fired the plaintiff, Robert McMichael, along with over 7,300
other employees. McMichael claims he was fired because of his age, in
violation of the Age Discrimination in Employment Act (“ADEA”). Transocean
argues that they fired him for other reasons, just like the thousands of other
employees they let go in the same period.
The district court agreed with Transocean, granting their motion for
summary judgment. According to the district court, McMichael failed to raise
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a genuine question of material fact about Transocean’s reasons for firing him.
The sole issue on appeal is whether McMichael presented enough evidence to
show that Transocean’s reasons for firing him were pretext for age
discrimination. Because we agree that McMichael failed to raise a genuine
issue of material fact, we AFFIRM.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
A. Factual Background
In 2001, Transocean hired McMichael as a Driller I, assigning him to an
offshore drilling rig. He was 46 years old. Over the next eight years, he worked
as a driller and toolpusher on various rigs, earning several promotions and pay
raises. 1 Then, in 2009, Transocean assigned him to a rig called the Discoverer
Clear Leader (“DCL”). He worked on the DCL until Transocean fired him in
April of 2015. He was 59 years old.
McMichael’s firing came in the middle of a large downturn in the oil and
gas industry. From 2014 until July of 2018, Transocean reduced its offshore
fleet by 44 rigs. The reduction in rigs also led to a large reduction in workforce.
During this period, Transocean fired 7,320 employees. Transocean also cut
almost half of its toolpusher workforce. In less than two years, they laid off 25
toolpushers—48% of all toolpushers.
In early 2015, when McMichael was fired, Transocean “cold stacked” six
drilling rigs, reducing the employees on those rigs from 989 to 0. The DCL was
one of those rigs. Transocean fired 80 employees from the DCL before
eventually taking the entire rig out of service in November of 2017.
Transocean fired all but one toolpusher from the DCL.
1 A toolpusher is a location supervisor for the drilling contractor. Toolpushers are
typically senior, experienced drillers, and their duties are largely administrative.
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The task of managing the workforce reduction fell on Transocean’s HR
Department, which devised and implemented a system for the project. The
system was called the “high-grading process.”
At a high level, the high-grading process ranked employees so that
Transocean could retain its top talent. Higher-ranked employees were more
likely to keep their jobs; lower-ranked employees were more likely to lose
theirs.
At a more granular level, the high-grading process had three basic
parameters—(1) performance, (2) ranking, and (3) potential. Performance is a
score based on the employee’s most recent performance appraisal, which has
two components: the Total Performance Score and the Appraisal Score. An
employee can receive one of five possible Total Performance Scores: 1 being
Unsatisfactory, 2 being Conditional, 3 being Fully Successful, 4 being Superior,
and 5 being Outstanding. These scores are then converted into a percentage:
Unsatisfactory equaling 40%, Conditional equaling 60%, Fully Successful
equaling 80%, Superior equaling 100%, and Outstanding equaling 120%.
The Appraisal Score is based on the total number of points an employee
scores on his most recent performance appraisal. Reviewers assign employees
points in response to twelve different questions. For example, reviewers must
determine each employee’s “Knowledge of Tasks & Operation,” “Delegating
Authority and Responsibility,” and “Professionalism.” Each question is worth
six possible points, making the maximum score 72 points. Transocean then
divides the employee’s actual score by 72, producing the Appraisal Score. They
then average the Total Performance Score with the Appraisal Score to produce
the performance metric. So, for example, if an employee receives a Total
Performance Score of Superior (100%) and receives 62 out of 72 points on the
Appraisal Score (86%), he will receive a performance score of 93%.
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The second parameter—ranking—is set by the rig manager. A rig
manager sets an employee’s ranking by comparing him to all other employees
with the same job title on the rig the manager oversees. For example, if a
manager oversees five toolpushers, he must rank them from first to fifth. After
assigning the employee a ranking, the manager combines the ranking with
“additional performance-related factors” to produce the employee’s ranking
score, which is expressed as a percentage. .
Rig managers also assign the final parameter—potential. Potential
refers to the employee’s potential for promotion to the next position or higher.
If the manager thinks the employee has no potential for promotion, he assigns
the employee a score of zero, and the employee receives a potential percentage
score of 60%. If the manager assigns a potential score of one, the employee
receives a potential percentage score of 80%. A score of two or higher earns
the employee a potential percentage score of 100%.
After setting these three measures, Transocean averages them to
determine the employee’s “Total Score.” Because these rankings are difficult
to apply across rigs, given that each rig manager oversees only a handful of
toolpushers, the HR Department noted that they are merely meant to facilitate
conversations between the HR Department and rig managers, who retain
ultimate responsibility for the lay-off decisions.
McMichael’s last performance appraisal came in 2014. Gary Mosley and
Robert Blansett completed the appraisal and assigned McMichael a Total
Performance Score of 3 “Fully Successful.” This earned him a score of 80%.
McMichael scored 61% on the Appraisal Score, earning 44 out of 72 possible
points. Averaging these two scores, his final performance score was 71%.
After the performance appraisal, Robert Kennedy, the rig manager,
assigned McMichael his ranking and potential scores. He ranked McMichael
fourth out of the four toolpushers under his supervision, which translated to
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25%. He also assigned McMichael a 0 for potential, which earned him a
potential score of 60%. Kennedy assigned McMichael these low scores because
(1) he spent more time in the toolpusher office than he should have; (2) he did
not have great leadership skills; (3) his computer skills were weak; (4) he did
not interact well with customers; and (5) he did not have strong planning skills.
His final score was 52%. After assigning ranking and potential scores,
Kennedy discussed McMichael with the HR Department and made the decision
to fire him on April 25, 2015. Kennedy did not know McMichael’s age when he
fired him.
After firing McMichael, Kennedy was responsible for hiring his
replacement. He chose Jody Eckert. Eckert was 49 years old and received a
rating of 4 “Superior” on his most recent performance appraisal, earning him
a Total Performance Score of 100%. 2 He earned an Appraisal Score of 67%,
receiving 48 out of 72 possible points. Eckert’s final performance score was
84% when rounded up. His manager also assigned him a ranking of 33%, and
his potential score was 60%. The average of Mr. Eckert’s performance,
ranking, and potential scores is 59%. 3 Eckert was fired in September of 2016
as part of ongoing workforce reductions.
B. Procedural History
McMichael sued Transocean in September of 2016, alleging, among other
things, that Transocean discriminated against him based on his age. After
2 Kennedy did not know Eckert’s age when he selected him.
3 Despite the scores above, a performance rating chart in the record shows McMichael
as having a total high-grade score of 71%. Transocean explains that this number reflects
only McMichael’s performance score, not his total high-grade score of 52%. Because
Transocean cold stacked six rigs in early 2015, they ranked and terminated many employees
quickly, leading to a typographical error on the performance rating chart.
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written discovery and depositions, Transocean moved for summary judgment
in July of 2018. The district court granted the motion.
The district court first assumed that McMichael could make out a prima
facie case of age discrimination. The court then affirmed a reduction in force
was a legitimate, nondiscriminatory reason for terminating McMichael. The
bulk of the court’s opinion dealt with whether Transocean’s proffered reasons
for firing McMichael were pretextual.
According to the court, McMichael could not call into question
Transocean’s reason for firing him. While McMichael was replaced by someone
younger, he did not show that his replacement was less qualified. All that
McMichael showed was that “perhaps Transocean made some mistake in their
scoring.” And such a mistake is not enough to overcome summary judgment.
The court also held that statements made by Robert Owen—a former
Offshore Installation Manager on the DCL—did not indicate any
discriminatory motive. And other factors showed a lack of discriminatory
intent.
II. DISCUSSION
This court reviews a district court’s grant of summary judgment de novo.
E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007). Summary
judgment is proper “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). There is no genuine issue for trial when “the record taken
as a whole could not lead a rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). All facts must be viewed in the light most favorable to the non-moving
party and all reasonable inferences drawn in its favor. WC & M, 496 F.3d at
397.
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Under the ADEA, an employer cannot “discharge any individual . . .
because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also Rachid v. Jack
In The Box, Inc., 376 F.3d 305, 308–09 (5th Cir. 2004). To establish an ADEA
claim, the plaintiff must show that his age was the “but-for” cause of his
termination—proving that age was a “motivating factor” for the decision is not
enough. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (holding that
a “plaintiff must prove by a preponderance of the evidence . . . that age was the
‘but-for’ cause of the challenged employer decision”); see also Moss v. BMC
Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (“[T]he Supreme Court
rejected the application of Title VII’s ‘motivating factor’ standard to ADEA
cases.” (citing Gross, 557 U.S. at 173–78)). A plaintiff may prove that age was
a but-for cause of his firing with direct or indirect evidence. Kilgore v.
Brookeland Indep. Sch. Dist., 538 F. App’x 473, 475–76 (5th Cir. 2013) (per
curiam) (unpublished); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 441
(5th Cir. 2012).
“Direct evidence of discrimination . . . prove[s] the existence of a fact . . .
without any inferences or presumptions.” Bodenheimer v. PPG Indus., Inc., 5
F.3d 955, 958 (5th Cir. 1993). Most often, direct evidence takes the form of a
discriminatory statement directly connected to the plaintiff’s discharge. See
Moss, 610 F.3d at 929.
If the plaintiff cannot prove his case with direct evidence of
discriminatory motive, he can still rely on indirect evidence. When confronting
indirect evidence, courts use the burden-shifting framework from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 142 (2000); Bienkowski v. Am. Airlines,
Inc., 851 F.2d 1503, 1504 (5th Cir. 1988). Under this framework, a plaintiff
must first “put forth a prima facie case.” Berquist v. Wash. Mut. Bank, 500
F.3d 344, 349 (5th Cir. 2007). After making out a prima facie case, “the burden
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shifts to the employer to provide a legitimate, non-discriminatory reason for
the employment decision.” Id. If the employer articulates such a reason, the
plaintiff must rebut the employer’s purported explanation by showing that the
reason given is merely pretextual. Jackson v. Cal–Western Packaging Corp.,
602 F.3d 374, 378–79 (5th Cir. 2010).
Here, the parties agree that McMichael has made out a prima facie case
of employment discrimination. 4 The parties disagree on the next two steps.
First, McMichael argues that Transocean did not provide a legitimate, non-
discriminatory reason for firing him. McMichael’s argument here is frivolous.
Transocean’s proffered reason for firing McMichael was a broad reduction in
force. This court has repeatedly held that a reduction in force is a legitimate
reason for firing someone. See Kilgore, 538 F. App’x at 477 (holding that “[a]
reduction in force is a legitimate, nondiscriminatory reason for discharge”);
Tyler v. La-Z-Boy Corp., 506 F. App’x 265, 269–70 (5th Cir. 2013) (same);
E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (same).
Second, McMichael argues that any reasons Transocean provided were
mere pretext for discrimination. This disagreement is the heart of the case,
and it centers on the final step of the burden-shifting framework: whether
Transocean’s reasons for firing McMichael were pretext for age discrimination.
4In a typical ADEA case, the plaintiff 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.
In a reduction-in-force case, a party makes out a prima facie case of age discrimination
by showing “(1) that he is within the protected age group; (2) that he has been adversely
affected by the employer’s decision; (3) that he was qualified to assume another position at
the time of the discharge; and (4) ‘evidence, circumstantial or direct, from which a factfinder
might reasonably conclude that the employer intended to discriminate in reaching the
decision at issue.’” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting
Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).
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At summary judgment, McMichael must offer enough evidence to raise a
genuine question of fact regarding Transocean’s reasons for firing him.
To show pretext, a plaintiff must present enough evidence for a
reasonable jury to believe that Transocean’s “reasons are pretexts for unlawful
discrimination.” Bienkowski, 851 F.2d at 1505. A plaintiff can do so by
showing that: (1) “a discriminatory reason more likely motivated” the
employer, id.; (2) the employer’s “reason is unworthy of credence,” id.; or (3) he
“is ‘clearly better qualified’ than the person selected for the position,” Burrell
v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).
“The plaintiff retains the burden of persuading the fact finder that
impermissible discrimination motivated the adverse employment decision.”
Bienkowski, 851 F.2d at 1505.
To undermine Transocean’s reasons for firing him, McMichael points to
three types of evidence, all of which, he argues, show a discriminatory motive
for firing him: (1) allegedly discriminatory comments, (2) hiring a younger,
less-qualified candidate, and (3) the way Transocean applied the high-grading
process to McMichael.
A. Discriminatory Comments
A plaintiff can show pretext and discriminatory motive by pointing to
age-related comments made by a person in charge of firing. A plaintiff can use
these comments in both direct and indirect evidence cases. In direct evidence
cases, comments must meet a demanding standard because the plaintiff relies
on them “to prove the entire case of discrimination.” Goudeau v. Nat’l Oilwell
Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015). For age-related comments to
show pretext in a direct evidence case, they must be more than “stray
remarks.” Tex. Instruments, 100 F.3d at 1181 (“This court has repeatedly held
that ‘stray remarks’ do not demonstrate age discrimination.”). To rise above
the level of a stray remark, an age-related comment must “be direct and
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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.” Id. More specifically, for a comment 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.” Moss, 610 F.3d at 929 (internal quotation marks omitted) (quoting
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir. 2001).
While the plaintiff must connect age-related comments to a person with
power over the firing decision, the plaintiff can satisfy this requirement by
showing that the speaker “is in a position to influence the decision.” Palasota
v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003). Similarly, age-
related comments “‘are appropriately taken into account’ . . . even where the
comment is not in the direct context of the termination.” Id. (citing Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000)). If comments do
not meet this standard, then they cannot defeat summary judgment. See
Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010)
(“Comments that do not meet these criteria are considered ‘stray remarks,’ and
standing alone, are insufficient to defeat summary judgment.” (citations
omitted)).
In indirect evidence cases, courts apply a less demanding standard
because “the discriminatory remarks are just one ingredient in the overall
evidentiary mix.” Goudeau, 793 F.3d at 475 (holding that discriminatory
remarks are relevant at the pretext stage and a less “demanding test applies”).
Under this less demanding standard, the plaintiff must show that the
comments involve “(1) discriminatory animus (2) on the part of a person that
is either primarily responsible for the challenged employment action or by a
person with influence or leverage over the relevant decisionmaker.” Squyres
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v. Heico Cos., L.L.C., 782 F.3d 224, 236 (5th Cir. 2015) (quoting Reed, 701 F.3d
at 441).
Here, McMichael first attempts to overcome summary judgment with
statements made by Robert Owen, as Offshore Installation Manager on the
DCL. According to McMichael, Owen told him that he “had nothing to worry
about” because he could receive his “pension without receiving a financial
penalty from the IRS.” This statement falls short under both the direct and
indirect evidence standards because (1) it does not reflect any discriminatory
animus, and (2) Owen did not have any influence over the decision to terminate
McMichael.
Courts typically only find a statement to be evidence of age
discrimination in two situations. First, courts will find evidence of age
discrimination where a statement references age in a derogatory or
stereotypical way. See, e.g., Rachid, 376 F.3d at 315 (finding evidence of age
discrimination where the employer told the plaintiff “. . . you’re too old”).
Second, courts will find evidence of age discrimination where the employer’s
statement shows a desire to replace older employees with younger ones. See,
e.g., Palasota, 342 F.3d at 577–78 (finding sufficient evidence to sustain a jury
verdict where the employer stated that the plaintiff’s “sales techniques were
out of the ‘old school’ of selling”; commented that “there was a ‘graying of the
sales force’” and the employer needed “to find a way to get through it;” and
recommended severance packages for fourteen named employees, all of whom
were specifically identified as over fifty years of age, to create “the flexibility to
bring on some new players”). Neither situation is present here.
Commenting on McMichael’s eligibility for retirement does not reference
age in a derogatory or stereotypical way. Nor does it show a desire to replace
older employees with younger ones. It also does not imply that McMichael’s
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age was the reason he was fired, especially in the context of a reduction in
force. The case law supports this interpretation.
This court previously held that nearly the exact same statement did not
directly show discriminatory motive. Kilgore, 538 F. App’x at 476. In Kilgore,
this court held that the plaintiff failed to show discriminatory motive even
though his boss said that he was “eligible for retirement.” Id. (“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.” (emphasis added)). Such a statement, the court held, “did not imply”
that his eligibility “was the reason for discharge.” Id. (citing Tex. Instruments,
100 F.3d at 1181). It “simply recognized a fact concerning” the plaintiff’s
eligibility. Id. This benign interpretation of the statement was also “consistent
with the context in which it was allegedly made,” since “it was natural for the
[decisionmaker] to inform [the plaintiff] of the benefits to which he was entitled
upon his termination.” Id.
Like in Kilgore, the speaker merely informed McMichael of his eligibility
for retirement benefits. The statement did not reflect any stereotypes about
age, evince a desire to replace older employees with younger ones, or suggest
that McMichael was fired for his age. In the context of a reduction in force, it
was natural for employees to discuss benefits available if they were
terminated. And McMichael has not produced any evidence suggesting an
alternative interpretation.
McMichael also failed to connect this statement to a person with
influence over the decision to fire him. While McMichael does not need to
connect this statement to the “formal decision maker,” he must show that the
speaker is “in a position to influence the decision.” Palasota, 342 F.3d at 578.
But McMichael shows the exact opposite—he admits that Owen “was no longer
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the [Offshore Installation Manager] on the [DCL] at the time” he was fired.
And no other evidence shows, or even suggests, that Owen had any influence
over the decision to terminate McMichael.
B. Hiring a Less Qualified Candidate
Another way that a plaintiff can show pretext is by pointing out that the
employer replaced the plaintiff with a younger, “clearly less qualified”
employee. Tex. Instruments, 100 F.3d at 1181; see also Walther v. Lone Star
Gas Co., 952 F.2d 119, 123 (5th Cir. 1992) (“[A] plaintiff can take his case to a
jury with evidence that he was clearly better qualified than younger employees
who were retained.” (citing Thornbrough v. Columbus & Greenville R.R. Co.,
760 F.2d 633, 647 (5th Cir. 1985)). The “bar,” however, “is set high for this
kind of evidence.” Moss, 610 F.3d at 922–23 (citing Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)). A plaintiff cannot satisfy
his burden by showing a large discrepancy in age. See Inmon v. Mueller Copper
Tube Co., Inc., 757 F. App’x 376, 382 (5th Cir. 2019) (unpublished) (“In sum,
we hold that a significant difference in age, standing alone, is insufficient
evidence of pretext . . . .”). Nor can the plaintiff satisfy his burden by showing
that he is “merely better than or as qualified” as his replacement. Moss, 610
F.3d at 923 (quoting E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444
(5th Cir. 1995)). Instead, he must show that his replacement, if any, is clearly
less qualified.
To carry this heavy burden, a plaintiff must show that “the qualifications
are so widely disparate that no reasonable employer would have made the
same decision.” Moss, 610 F.3d at 923 (citing Celestine, 266 F.3d at 357).
Differently put, the plaintiff must submit “evidence from which a jury could
conclude that ‘no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for the job in
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question.’” Id. (citing Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164
F.3d 277, 280–81 (5th Cir. 1999)).
Here, McMichael does not attempt to show that Eckert was clearly less
qualified. He doesn’t challenge the high-grade system score assigned to Eckert,
and he doesn’t directly challenge his high-grade score with facts showing that
he was so qualified that Transocean should not have fired him. Notably,
McMichael never addresses Eckert’s performance rating of 84%, which is
higher than his own performance rating of 71%. Even if he did directly
challenge his high-grade score, his own qualifications are less relevant in a
reduction-in-force case. See Tex. Instruments, 100 F.3d at 1181 (“In the context
of a reduction in force . . . the fact that an employee is qualified for his job is
less relevant—some employees may have to be let go despite competent
performance.”).
C. Departing from Procedure
A plaintiff can also show pretext by showing a departure from standard
procedure. But mere deviations from policy, or a disagreement about how to
apply company policy, do not show pretext. See Campbell v. Zayo Grp., L.L.C.,
656 F. App’x 711, 715 (5th Cir. 2016) (per curiam) (unpublished) (holding that
“mere disagreement with [the employer’s] application of the [reduction-in-
force] policy, without more, does not provide substantial evidence of pretext”).
The ADEA does not “protect older employees from erroneous or even arbitrary
personnel decisions, but only from decisions which are unlawfully motivated.”
Moss, 610 F.3d at 926 (quoting Bienkowski, 851 F.2d at 1507–08). Plaintiffs,
therefore, must connect a departure from or misapplication of procedure to a
discriminatory motive—an employer’s “disregard of its own hiring system does
not of itself conclusively establish that improper discrimination occurred or
that a nondiscriminatory explanation for an action is pretextual.” Risher v.
Aldridge, 889 F.2d 592, 597 (5th Cir. 1989).
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Here, McMichael also argues that Transocean inconsistently applied the
high-grading process to him. The main thrust of McMichael’s argument
centers on a discrepancy in the evidence. On a chart showing all the
toolpushers who were fired and retained, McMichael received a higher
performance score than Eckert. Importantly, Eckert is younger and, according
to McMichael, less qualified than him. McMichael argues that these two facts
show that Transocean did not fire him because of his performance review—
they fired him because of his age.
Transocean argues that the chart does not reflect McMichael’s final high-
grading score—it only reflects his score on the performance parameter.
Eckert’s score, on the other hand, reflects all three parameters: performance,
ranking, and potential. The chart, in other words, is incomplete because
Transocean made a simple scrivener’s error. This error is understandable,
they argue, because they cold stacked six rigs in early 2015, forcing them to
rank and terminate a selection of 989 employees quickly.
McMichael’s argument is unconvincing. While a departure from
procedure can show discriminatory motive, McMichael does not give any
reasons to doubt Transocean’s explanation for the discrepancy on the rating
chart, which makes the difference in the chart look like an accidental departure
from procedure. This court, however, does not find discriminatory motive
merely because an employer misapplies a reduction-in-force policy. Campbell,
656 F. App’x at 715 (holding that “mere disagreement with [the employer’s]
application of the [reduction-in-force] policy, without more, does not provide
substantial evidence of pretext”); Tex. Instruments, 100 F.3d at 1182 (finding
no pretext where employer departed from original “layoff policy” in favor of a
new one); Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993) (rejecting
a claim based only on “[p]roof that an employer did not follow correct or
standard procedures in the termination or demotion of an employee”). Even if
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a plaintiff can show that an employer consciously disregarded “its own hiring
system,” that showing, on its own, does not “conclusively establish that
improper discrimination occurred or that a nondiscriminatory explanation for
an action is pretextual.” Risher, 889 F.2d at 597.
D. Additional Factors
Beyond these shortcomings, two other factors further undercut
McMichael’s arguments. First, on numerous occasions, this court has held that
discrimination is less likely when the supervisor is in the same protected class
as the plaintiff. See Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 783 (5th
Cir. 2015) (“[The plaintiff’s] membership in the same protected class as [the
supervisor] bolsters the inference that age discrimination was not the reason
for his termination.”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.
1996), abrogated on other grounds by Reeves, 530 U.S. at 134 (holding that,
since the 58-year-old plaintiff was fired by his 60-year-old employer, there was
an inference that “age discrimination was not the motive”).
Two of the three people who rated and fired McMichael—Mosley and
Kennedy—were both in the same protected class. Mosley was 57 years old,
and Kennedy was 51 years old. Their ages make discrimination less likely.
Second, Transocean fired numerous employees who were younger and
more qualified than McMichael. This court has held before that age
discrimination is less likely when the employer retains other older employees
and fires younger ones. Kelly, 632 F. App’x at 783 (noting it was unlikely
plaintiff was discriminated against when “one meat-department employee who
was only 36 years old was also dismissed, while another who was 47 years old
kept his job”); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir.
1995) (reversing ADEA plaintiff’s jury verdict even though an older employee
was retained while other employees under the age of 40 were terminated). In
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No. 19-60011
such situations, “[t]he logical inference is that age was not a factor.” Kelly, 632
F. App’x at 783.
Here, no evidence shows that age was a factor in any of Transocean’s
firing decisions. Transocean fired numerous employees who were younger and
more qualified than McMichael. For example, Transocean fired one employee
who was 38 years old and had a high-grade score of 92%. And on the DCL,
Transocean retained only one toolpusher. While he was younger than
McMichael at 49 years old, he scored well above McMichael’s 71% (or 59%)
with a total high-grade score of 85%. Besides McMichael, the other two
toolpushers fired from the DCL were both younger than the one retained
toolpusher, but both received lower high-grade scores—one is 48 years old and
scored 72%, the other is 35 years old and scored 71%. This evidence suggests
that Kennedy retained the most qualified employees.
A more fundamental problem is that all but one of the toolpushers on the
DCL, including Eckert, were terminated. And the one toolpusher they retained
was clearly more qualified than McMichael, and he was not the youngest
toolpusher on the rig. McMichael failed to meet the high burden of showing
that Transocean chose to discriminate against him even though they were
firing almost every toolpusher on the DCL anyways. The most reasonable
explanation is the one Transocean gave: a massive reduction in force due to a
downturn in the oil and gas industry.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.
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