Clary v. Computer Associates

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10606
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Steven W. Clary,

Plaintiff-Appellant,

versus

Computer Associates International, Inc.,

Defendant-Appellee.

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Appeal from the United States District Court for the
Northern District of Texas
(3:95-CV-282-G)
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February 19, 1997

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Stephen W. Clary appeals from an adverse

summary judgment of the district court dismissing his

discrimination claim brought pursuant to the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. After a careful review of

*
Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
the pleadings, summary judgment motion, response thereto, summary

judgment evidence of both parties, and the arguments presented on

appeal, our de novo review convinces us that the district court

correctly granted summary judgment.

Specifically, Clary’s attempt to establish that he was

subjected to disparate treatment discrimination by offering

evidence of a pattern or practice of discrimination cannot succeed

because his own deposition refutes personal knowledge of the ages

of other allegedly terminated employees. Clary’s failure to

present competent summary judgment evidence regarding the ages of

such employees, when evidence of this nature was readily

ascertainable through discovery, precludes him from creating a fact

issue regarding the defendant’s alleged pattern or practice of

discrimination. See, e.g., Vidrine v. Enger, M.D., 752 F.2d 107,

110 (5th Cir. 1984) (“We have repeatedly held that, while notice

pleading is sufficient to open the federal courthouse door, a party

opposing a motion for summary judgment, properly put, may not ask

the court to try the case in order to determine the facts but must

set forth by affidavit or deposition specific facts that would

justify judgment in his favor if proved.”). Clary’s failure in

this regard also precludes him from establishing a material

question of fact, in combination with other evidence in the record,

regarding the ultimate question of discrimination vel non.

Because the competent summary judgment evidence before the

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district court did not raise a material fact issue that age was a

determinative reason for Clary’s termination, the judgment of the

district court is AFFIRMED.

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