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McMichael v. Transocean Offshore Deepwater Drilling, Inc.

United States Court of Appeals, Fifth Circuit

August 13, 2019

ROBERT MCMICHAEL, Plaintiff - Appellant

          Appeal from the United States District Court for the Southern District of Mississippi.

          Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.


         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 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.


         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.

         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%.

         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 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 ...

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