IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20522
_____________________
JAMES M MCCRELESS,
Plaintiff-Appellant,
v.
MOORE BUSINESS FORMS INC,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-3594)
_________________________________________________________________
March 26, 1997
Before KING and PARKER, Circuit Judges, and ROSENTHAL,* District
Judge.
PER CURIAM:**
James M. McCreless appeals the lower court’s grant of
summary judgment against him in his age discrimination suit
against Moore Business Forms, Inc. Finding no error, we affirm.
I. BACKGROUND
*
District Judge of the Southern District of Texas, sitting
by designation.
**
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that this opinion should not be published and is not precedent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.
In the light most favorable to McCreless, the facts are as
follows.
In 1956, the plaintiff James M. McCreless began working for
Moore Business Forms, Inc. (“Moore”) as a clerk at the Denton
plant. McCreless was eventually promoted to a supervisory
position in 1979, in which he remained until the plant closed in
1987. McCreless then transferred to the Bryan plant and took the
job of group leader. Seniority at the Bryan plant was determined
by the length of service at the Bryan plant. Thus, as a
transferee, McCreless had less seniority than employees who were
already at the plant.
In March of 1988, when he was over age fifty, McCreless was
again promoted to a supervisory position. At the time of the
promotion, there were five other supervisors at the plant,
including Adolpho Rios, and all were over forty except Rios, who
turned forty within six months of McCreless’s promotion.
McCreless worked in this position until October 12, 1993, when he
was transferred to an hourly position as part of an ongoing,
company-wide reduction in force (“RIF”). McCreless claims that
the plant manager told him the reason for the demotion was that
Rios, a younger supervisor with more department experience, was
going to replace him.
McCreless also asserts that in September of 1993,
approximately one month before the transfer, management personnel
encouraged him to take an early retirement option. McCreless
2
refused, claiming he did not want to retire and could not afford
it. McCreless asserts that management personnel then began
pressuring and harassing him about taking early retirement,
culminating in the “demotion” in October.
In June of 1994, McCreless filed an EEOC charge, alleging
that the transfer was because of his age.1 About a month later,
Moore informed plant employees that the Bryan plant would be
closing. McCreless, and everyone else at the Bryan plant, was
eventually laid off.
In October of 1994, McCreless filed this suit under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634,
alleging that the transfer was because of his age.2 Moore moved
for summary judgment, and the lower court granted the motion.
McCreless timely appealed. McCreless claims on appeal that the
grant of summary judgment was improper because he did not have
adequate opportunity for discovery and that there are genuine
issues of material fact that preclude summary judgment.
1
McCreless also claims that the transfer denied him the
opportunity to interview for supervisory positions at other
plants because only “current supervisors” were eligible to
interview. He claims that the transfer “gave Moore a pretextual
reason not to interview him for subsequent available supervisory
positions.” However, this claim hinges on the transfer being
discriminatory and thus will be subsumed by the general
discussion.
2
McCreless also asserted a retaliation claim, but he does
not brief the retaliation issue on appeal. We need not consider
issues or arguments not raised in the appellant's brief. Pan E.
Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1124 (5th Cir.
1988).
3
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the lower court in the first instance.
Texas Medical Ass’n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th
Cir. 1996). Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." FED. R. CIV. P.
56(c). In reviewing a summary judgment, we resolve all actual
factual controversies in favor of the nonmoving party. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). However,
“conclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc). Furthermore, “[a] mere scintilla of
evidence is insufficient to present a question for the jury.”
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en
banc).
III. THE TIMING OF THE GRANT OF SUMMARY JUDGMENT
McCreless complains that the lower court granted summary
judgment before he had adequate opportunity for discovery.3
3
Moore argues that McCreless has “waived” this argument
because he did not mention it in the introduction of his brief in
the statement of the issues. However, McCreless asserts the
4
McCreless filed this suit in October of 1994. Nearly one year
later, on September 29, 1995, Moore filed a motion for summary
judgment. During the intervening year, the parties submitted a
joint discovery statement (which they modified several times,
including an extension of the final discovery deadline) and made
their initial disclosures, Moore designated its experts,
McCreless noticed several depositions by written questions, and
Moore deposed McCreless. On the same day Moore filed its summary
judgment motion, McCreless sent his first set of interrogatories
and request for production.
In response to Moore’s motion for summary judgment,
McCreless requested an extra week to respond, and the lower court
granted that motion. McCreless filed his response on October 26,
1995, and he argued that he had not conducted adequate discovery
and that since the discovery deadline was several months away,
the court should not yet rule on the motion. A few days later,
McCreless noticed the oral deposition of Ken Baker, Moore’s human
resources director, but that deposition never occurred. On April
16, 1996, Moore filed a supplemental motion, urging the court to
rule on its previously filed summary judgment motion. Between
the time of McCreless’s response to the earlier summary judgment
motion and Moore’s supplemental motion, apparently no discovery
argument several other places in his brief. Moore cites no
authority for the proposition that to preserve an issue, the
issue must be argued in a particular portion of the brief.
5
occurred. On April 29, 1996, McCreless responded to Moore’s
supplemental motion, arguing that it had inadequate time for
discovery and noting the discovery expected by the discovery
deadline. McCreless had scheduled Baker’s deposition for May 15,
1996, the discovery deadline, and was due to receive responses to
its second set of interrogatories and request for production the
same day. The lower court granted summary judgment on May 2,
1996, about two weeks before the discovery deadline.
McCreless complains that the lower court prematurely granted
summary judgment because his further discovery requests “sought
relevant information concerning similarly situated supervisors
and employees” and that ruling on the summary judgment motion
before the discovery date “effectively den[ied] McCreless the
opportunity to establish certain evidentiary issues that were
crucial to his case.” However, McCreless did not use the proper
mechanism for requesting more discovery before a summary judgment
ruling. Rule 56(f) of the Federal Rules of Civil Procedures
provides:
Should it appear from the affidavits of a party
opposing the motion [for summary judgment] that the
party cannot for reasons stated present by affidavit
facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or
may make such other order as is just.
As the Supreme Court stated in Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986), “[a]ny potential problems with such premature
6
[summary judgment] motions can be adequately dealt with under
Rule 56(f).” See also Banco de Credito Industrial v. Tesoreria
General, 990 F.2d 827, 838 n.20 (5th Cir. 1993) (citing Celotex
for the proposition that “Rule 56(f) is [the] appropriate
mechanism to deal with premature summary judgment motion[s]”),
cert. denied, 510 U.S. 1071 (1994). Other circuits have held
that the nonmovant cannot complain about the timing of granting
summary judgment in relation to discovery except through the
procedure provided in Rule 56(f). See Keebler Co. v. Murray
Bakery Prods., 866 F.2d 1386, 1389 (Fed. Cir. 1989) (“A party may
not simply assert that discovery is necessary and thereby
overturn summary judgment when it failed to comply with the
requirement of Rule 56(f) to set out reasons for the need for
discovery in an affidavit.”); THI-Hawaii, Inc. v. First Commerce
Fin. Corp., 627 F.2d 991, 994 (9th Cir. 1980) (“Where the
opposing party has not had sufficient time to complete discovery
. . . , application may be made under Rule 56(f) for a
continuance . . . . If the opposing party fails to take advantage
of Rule 56(f), summary judgment may be entered, if otherwise
appropriate.”). These authorities indicate that McCreless should
not be able to complain about the timing of the grant of summary
judgment because he did not take advantage of the Rule 56(f)
procedure. We are not inclined to elevate form over substance,
but this case is a matter of substance. The case illustrates the
7
appropriateness of the Rule 56(f) affidavit requirement because,
according to the court papers filed, McCreless never explained to
the lower court (or to this court, for that matter) specifically
what he hoped to find out from further discovery and how this
expected evidence would defeat the motion for summary judgment.
See Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1078
(5th Cir. 1990) (“It is established law of the circuit that a
plaintiff’s entitlement to discovery prior to a ruling on a
summary judgment motion may be cut off when . . . the record
indicates that further discovery will not likely produce facts
necessary to defeat the motion.”).
Even if McCreless were not required to use the Rule 56(f)
procedure, his argument is without merit because he has not made
a specific showing of what further discovery would reveal. In
his brief, he states merely that he expected “relevant
information concerning similarly situated supervisors and
employees” and that he wanted the opportunity “to establish
certain evidentiary issues that were crucial to his case.”
McCreless’s assertion that he would obtain “relevant” and
“crucial” information, without more explanation, is essentially a
request for a fishing expedition, to which he is not entitled.
See Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d
1474, 1487 (5th Cir. 1995) (affirming the district court’s denial
of an extension of discovery before granting summary judgment
8
because the request “was merely a request . . . to conduct a
fishing expedition”); Paul Kadair, Inc. v. Sony Corp. of Am., 694
F.2d 1017, 1032 (5th Cir. 1983) (concluding that the nonmovant
was not entitled “to go fishing with the hope of fortuitously
discovering some unknown and unsuspected evidence” in order to
delay ruling on a motion for summary judgment). In sum,
McCreless did not place before the lower court adequate
information showing specific reasons why he delayed discovery and
that evidence he expected to obtain would defeat the motion for
summary judgment. Thus, the lower court did not err in granting
summary judgment before McCreless had an opportunity to conduct
further discovery.
IV. THE MERITS OF THE GRANT OF SUMMARY JUDGMENT
A.
The ADEA makes it unlawful for an employer “to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). One method of proof under the ADEA is the indirect
evidence, burden-shifting approach. First, the plaintiff has the
burden to establish a prima facie case of age discrimination.
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir.
1996)(en banc). If the plaintiff presents sufficient evidence to
create a prima facie case, a presumption of age discrimination
9
arises. Id. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the
employment decision. Id. at 992-93. If the employer meets this
burden, the presumption created by the plaintiff’s prima facie
case is dissolved and the burden shifts back to the plaintiff to
establish that the employer’s proffered reason is merely a
pretext for age discrimination. Id. at 993. To demonstrate this
pretext, the plaintiff must show both that the employer’s
proffered reason was false and that age discrimination was the
real reason for the employment action. Id. at 994. In the
context of a summary judgment,
a jury issue will be presented and a plaintiff can
avoid summary judgment . . . if the evidence taken as a
whole (1) creates a fact issue as to whether each of
the employer’s stated reasons was what actually
motivated the employer and (2) creates a reasonable
inference that age was a determinative factor in the
actions of which the plaintiff complains. The
employer, of course, will be entitled to summary
judgment if the evidence taken as a whole would not
allow a jury to infer that the actual reason for the
discharge was discriminatory.
Id.
B.
To present a prima facie case takes “‘only . . . a very
minimal showing.’” Nichols v. Loral Vought Sys. Corp., 81 F.3d
38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus &
Greenville R.R., 760 F.2d 633, 639 (5th Cir. 1985)). Thus, we
10
assume arguendo that McCreless has established a prima facie case
and has raised a presumption of unlawful age discrimination.
The burden then shifts to Moore to articulate a legitimate,
nondiscriminatory reason for transferring McCreless from a
supervisor to an hourly employee. Moore asserts, and the lower
court determined, that Moore has articulated a legitimate,
nondiscriminatory reason for demoting McCreless -- the RIF. We
agree. Fifth Circuit law is very clear that a RIF is a
legitimate, nondiscriminatory reason for taking an adverse
employment action against an employee. See, e.g., EEOC v. Texas
Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996); Nichols,
81 F.3d at 41.
Moore has produced considerable evidence supporting its
contention that McCreless’s transfer was part of an ongoing,
company-wide RIF. The lower court summarized this evidence
succinctly:
Here, there is ample evidence in the record that
Moore was undergoing organizational changes at the time
of McCreless’ transfer from a supervisory to an hourly
position on October 12, 1993. In September 1993, Braun
[president and CEO of Moore], gave a speech at the
North American Quality Forum detailing changes that
would be necessary for Moore to grow and compete in the
global marketplace and to keep up with future
technologies. Three months later, on January 20, 1994,
a letter from Braun referencing the speech was
distributed to all employees of Moore. The letter
notified Moore employees that in some areas there would
be plant closures and in others restructuring of
operations to eliminate inefficiency and to improve
productivity. Additionally, Braun indicated in the
letter that over the next two years, Moore expected to
11
reduce its worldwide workforce by approximately 3,000
employees. Furthermore, Braun stated that while normal
attrition would accomplish some of the reduction,
layoffs would be inevitable. Subsequently, on July 28,
1994, a letter was issued to all employees at Moore’s
Bryan plant informing them of the closure of the plant
by October 10, 1994. Finally, in November 1994, the
Bryan plant was closed.
McCreless does not challenge the fact that there
was a reduction in the workforce or that demotions and
discharges were occurring company-wide. Rather,
McCreless acknowledged in his deposition that, prior to
his demotion, everyone at the plant was fearful for
their job due to a reduction in the number of employees
and discussions of cutbacks. Specifically, McCreless
acknowledged that he was concerned that the might lose
his position as a supervisor. In addition, it is
uncontested that the sixth supervisory position was
eliminated.
This evidence satisfies Moore’s burden to articulate a
legitimate, nondiscriminatory reason for its employment action.
McCreless complains that Moore did not tell him that his transfer
was because of a RIF at the time of the transfer. That Moore may
have given McCreless a different reason at the time may be
relevant to McCreless’s burden to show pretext, but it is
irrelevant to whether Moore articulated a legitimate,
nondiscriminatory reason to the court.
Because Moore met its burden to articulate a legitimate,
nondiscriminatory reason for its action, the burden then shifts
back to McCreless to raise a fact issue as to whether Moore’s
stated reason -- the RIF -- was merely a pretext for age
discrimination. We conclude that McCreless has failed to raise a
fact issue on pretext, and thus the lower court’s grant of
12
summary judgment was proper. McCreless put forth two types of
evidence to support his pretext theory. We will analyze each in
turn.
First, McCreless argued that management personnel harassed
him and repeatedly pressured him to take an early retirement
package that Moore began offering about a month before McCreless
was transferred. McCreless asserts that as he refused to retire,
the harassment continued, culminating in his demotion. As one
example of the harassment, McCreless testified in his deposition
that Kenny Johns informed him of the retirement package and told
McCreless that he should “consider taking it” and that if Johns
were McCreless’s circumstances, “he would take it.” McCreless
testified that he considered this statement to be friendly advice
at the time. This comment is inadequate to prove pretext because
it is merely a casual, facially-neutral remark. See Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)
(characterizing the statement “I hope when I get to your age,
somebody does the same thing for me” as a “casual, facially-
neutral remark” that is insufficient to raise a fact issue on
pretext for age discrimination). In his affidavit, McCreless
states that Bill Crowley, the plant manager, “repeatedly
pressured me to take early retirement” and that “[m]anagment
continued to harass me regarding the early retirement” through “a
series of events” culminating in the transfer to an hourly
13
position. McCreless gives no specific details of this alleged
“series” of instances of “harassment.” This evidence is
insufficient to meet McCreless’s burden to show pretext. “In
short, conclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”
Douglass, 79 F.3d at 1429.
Second, McCreless claims in his affidavit that Crowley told
him that he was being transferred to an hourly position because
“another younger supervisor was going to replace me, who had more
press department experience.” McCreless asserts that he was more
qualified than the younger supervisor, Rios, based largely on the
number of years each had spent supervising in general and in the
specific department. This evidence is inadequate to raise a fact
issue as to pretext. An attempt “to equate years served with
superior qualifications” is “unpersuasive.” Bodenheimer, 5 F.3d
at 959. Furthermore, McCreless does not challenge that a RIF was
ongoing and that one of the six supervisory positions was
eliminated. McCreless does not assert that eliminating this
position was somehow improper, and thus someone had to take over
his previous duties. McCreless does not dispute that he had less
seniority than the other supervisors, that Moore’s policy was to
use plant seniority in making employment decisions, and that
Moore actually used its policy. Thus, McCreless’s evidence
concerning the age or qualifications of the person assuming
14
McCreless’s former duties is insufficient to raise a fact issue
as to pretext in this context.
In sum, McCreless simply has not presented more than a
scintilla of evidence that the transfer from a supervisory to an
hourly position was not motivated by the RIF but instead was
motivated by age. Thus, McCreless has failed to meet his burden
to raise a fact issue regarding pretext, and summary judgment in
favor of Moore was proper.
V. CONCLUSION
For the foregoing reasons, we AFFIRM.
15