Blair v. Harris County ( 2021 )


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  • Case: 20-20249     Document: 00515700252         Page: 1     Date Filed: 01/08/2021
    United States Court of Appeals
    for the Fifth Circuit                            United States Court of Appeals
    Fifth Circuit
    FILED
    January 8, 2021
    No. 20-20249                        Lyle W. Cayce
    Clerk
    Weston E. Blair,
    Plaintiff—Appellant,
    versus
    Harris County,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:18-CV-2243
    Before Wiener, Southwick, and Duncan, Circuit Judges.
    Per Curiam:*
    Weston Blair appeals the summary judgment dismissing his age
    discrimination claim against Harris County, Texas. He argues that the
    *
    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    opinion should not be published and is not precedent except under the limited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.
    Case: 20-20249        Document: 00515700252              Page: 2       Date Filed: 01/08/2021
    No. 20-20249
    district court abused its discretion in limiting discovery and that material fact
    disputes should have precluded summary judgment. We affirm. 1
    I
    Blair was hired by Harris County as a maintenance worker in 2003. In
    December 2016, Blair’s supervisor David Behm reprimanded Blair in writing
    for “failing to meet . . . performance expectations,” placed him on ninety
    days’ probation, and outlined a joint action plan for improvement. Less than
    a year later, a different supervisor, Paul Carter, reported similar performance
    issues, leading to a meeting between Blair and his manager, Darrell
    Breedlove. During this December 2017 meeting, Blair was presented with the
    performance evaluation, suspended five days, placed on ninety days’
    probation, advised that he could be fired at any time during the ninety days
    for poor performance, and informed of his obligation to attend weekly
    counseling sessions with Carter. Blair refused to sign the employee
    development form that Breedlove had completed summarizing the meeting
    and outlining Blair’s improvement plan. Either at this meeting or after Blair
    returned from his suspension, Breedlove directed Blair to email Carter
    progress reports. The parties dispute whether Blair refused to do so.
    In June 2018, Blair sued Harris County in federal court, alleging a
    claim under the Age Discrimination in Employment Act (“ADEA”), a
    substantive due process claim, and a claim under the Employee Retirement
    Income Security Act (“ERISA”). The district court dismissed Blair’s
    1
    Blair’s notice of appeal states that he appeals both the summary judgment and the
    order denying his motion for a new trial, but Blair’s failure to brief any arguments related
    to his new trial motion waives them. See Delaval v. PTech Drilling Tubulars, L.L.C., 
    824 F.3d 476
    , 479 n.2 (5th Cir. 2016).
    2
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    No. 20-20249
    substantive due process and ERISA claims, which Blair has not appealed. 2
    After about six months of court-managed discovery, Harris County moved
    for summary judgment on the ADEA claim, presenting evidence that Blair
    was fired for insubordination following a history of poor performance. The
    district court granted summary judgment and dismissed Blair’s remaining
    claim. It construed Blair’s subsequent motion for new trial as a motion to
    reconsider and denied it. Blair timely appealed.
    II
    Given a district court’s broad discretion to manage discovery, we
    review its decision to preclude further discovery for abuse of discretion. 3
    Alpine View Co. v. Atlas Copco AB, 205 F3d 208, 220 (5th Cir. 2000);
    Resolution Tr. Corp. v. Sharif-Munir-Davidson Dev. Corp., 
    992 F.2d 1398
    , 1401
    (5th Cir. 1993). A plaintiff’s “entitlement to discovery . . . may be cut off
    when the record shows that the requested discovery is not likely to produce
    the facts needed by the plaintiff to withstand a motion for summary
    judgment.” Washington v. Allstate Ins. Co., 
    901 F.2d 1281
    , 1285 (5th Cir.
    1990).
    We review a summary judgment de novo. Jones v. New Orleans
    Physician Hosp. Org., Inc., 
    981 F.3d 428
    , 432 (5th Cir. 2020). Summary
    judgment is proper “if the movant shows that there is no genuine dispute as
    2
    Blair’s complaint also raised a race discrimination claim under Title VII of the
    Civil Rights Act, which neither the district court’s dismissal nor its summary judgment
    addressed, but Blair appears to have abandoned this claim before the district court.
    “[A]rguments not raised before the district court are waived and will not be considered on
    appeal.” AG Acceptance Corp. v. Veigel, 
    564 F.3d 695
    , 700 (5th Cir. 2009). Regardless,
    Blair’s failure to brief on appeal the issue of whether this claim remains waives the
    argument. Delaval, 824 F.3d at 479 n.2.
    3
    We therefore reject Blair’s argument that a de novo standard applies because the
    limitation of discovery “poured over into a summary judgment.”
    3
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    to any material fact and the movant is entitled to judgment as a matter of
    law.” Fed. R. Civ. P. 56(a). Such a dispute exists “when the evidence is
    such that a reasonable jury could return a verdict for the non-moving party.”
    Renfroe v. Parker, 
    974 F.3d 594
    , 599 (5th Cir. 2020) (citation omitted).
    III
    Blair first argues the district court’s limitation of discovery disabled
    him from withstanding summary judgment. We are unpersuaded. To
    forestall summary judgment, a party must tell the court why he needs
    additional discovery and how it may create a genuine issue of material fact.
    See Bauer v. Albemarle Corp., 
    169 F.3d 962
    , 968 (5th Cir. 1999); see also Reese
    v. Anderson, 
    926 F.2d 494
    , 499 n.5 (5th Cir. 1991). The district court ordered
    the County to disclose eleven categories of information, including
    demographic data on comparable employees and résumés for any workers
    who replaced Blair, and Blair does not point to any place in the record where
    the district court rejected a reasonable request for more discovery. Similarly,
    Blair fails to explain why the discovery ordered by the district court was
    inadequate, what he might expect to learn from additional discovery, or how
    it could create a material fact dispute. Thus, the district court did not abuse
    its discretion by limiting discovery.
    We are also unpersuaded by Blair’s argument that the district court
    should have denied summary judgment. Contrary to Blair’s assertion, he
    presented no direct evidence of age discrimination, offering only workplace
    remarks unrelated to his termination and not proximate to it in time. See
    Jackson v. Cal-Western Packaging Corp., 
    602 F.3d 374
    , 377 (5th Cir. 2010).
    Assuming arguendo, as the district court appears to have done, that Blair
    presented circumstantial evidence establishing a prima facie case of age
    discrimination under the ADEA, he also failed to identify record evidence
    rebutting the County’s showing that it had a legitimate, non-discriminatory
    4
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    reason for firing him. See id.; see also Goudeau v. Nat’l Oilwell Varco., L.P.,
    
    793 F.3d 470
    , 476 (5th Cir. 2015) (poor performance and insubordination are
    nondiscriminatory reasons for termination). Rather, Blair appeared to rely on
    his own conclusory statements, on the stray remarks mentioned above, and
    on a former co-worker’s observations that some employees over fifty were
    asked to retire or were terminated. These offerings are insufficient to create
    a material fact dispute. Jackson, 
    602 F.3d at
    379–81 (concluding self-serving
    statements that proffered reason was pretextual, “stray remarks” about age,
    and co-worker’s suggestion that reason was pretextual were insufficient to
    create triable issue of fact). Accordingly, the district court properly granted
    Harris County summary judgment on Blair’s ADEA claim.
    AFFIRMED.
    5