IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95.50923
Summary Calendar
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JESSE RODRIGUEZ, JR.,
Plaintiff-Appellant,
v.
MRS. BAIRD’S BAKERY, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-94-CV-900)
_________________________________________________________________
March 25, 1997
Before KING, GARWOOD, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesse Rodriguez, Jr. appeals the district court’s granting
of summary judgment in favor of Mrs. Baird’s Bakery, Inc.
Finding no error, we affirm.
I. BACKGROUND
On March 12, 1994, a supervisor at Mrs. Baird’s Bakery,
Inc. (hereinafter “Mrs. Baird’s”) discharged Jesse Rodriguez from
his employment with the corporation. At this point, Rodriguez
was fifty-five years old and had worked for Mrs. Baird’s for
*
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this opinion should not be published and is not precedent except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.
sixteen years. Rodriguez worked for Mrs. Baird’s in Del Rio,
Texas, as a route salesman--a person who delivers the employer’s
products to customers’ stores along the salesman’s route.
Rodriguez’s route salesman duties included the inspection of Mrs.
Baird’s products at customers’ stores in order to guarantee that
only fresh products were available for sale.
On the date of his dismissal, Rodriguez’s immediate
supervisor accompanied him on his route and noticed out-of-date
produce on the shelves of the stores for which Rodriguez was
responsible. After the supervisor conferred by telephone with
his superior, the decision was made to terminate Rodriguez’s
employment once his route had been completed.
Shortly thereafter, Rodriguez filed suit against Mrs.
Baird’s in the U.S. District Court for the Western District of
Texas. Rodriguez alleged that he had been discharged in
violation of the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq. and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and that he had been denied
retirement benefits in violation of the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.1 The
district court granted Mrs. Baird’s motion for summary judgment.
Thereafter, Rodriguez sought review by this court.
1
Rodriguez also raised a Texas state law claim of workers’
compensation retaliation under TEX. LAB. CODE § 451.001, as well
as a cause of action for negligent supervision. Rodriguez does
not pursue these claims in the appeal to this court.
2
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. See Texas Medical Ass’n v. Aetna Life Ins. Co., 80
F.3d 153, 156 (5th Cir. 1996). The entry of summary judgment is
mandated “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).
“Under Rule 56(c), the party moving for summary judgment
bears the initial burden of ‘informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact.’” Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th
Cir. 1994), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party meets its burden, the burden shifts
to the non-moving party to establish the existence of a genuine
issue for trial. Norman v. Apache Corp. 19 F.3d at 1023, citing
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87
(1986).
III. Discussion
Although the requirements for Rodriguez’s causes of action
are similar, and much of the evidence on each coincides, we will
review the district court’s action on them individually. As a
prelude, we note that “testimony by an employee regarding his
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subjective belief that his discharge was the result of []
discrimination is insufficient to make an issue for the jury in
the face of proof showing an adequate, nondiscriminatory reason
for his discharge.” Portis v. First Nat’l Bank of New Albany,
MS., 34 F.3d 325, 329 (5th Cir. 1994).
A. The ADEA Claim
Rodriguez attempts to prove age discrimination by inference
from the circumstantial evidence. We use the McDonnell Douglas
framework to analyze claims of discrimination based upon
circumstantial or inferential evidence. See Woodhouse v.
Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996).2
McDonnell Douglas sets out a burden-shifting analysis for
proof of discrimination by inference. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-804 (1973). First, the plaintiff must
demonstrate a prima facie case of discrimination. Id. at 802.
“The burden of production then shifts to the defendant to proffer
a legitimate, non-discriminatory reason for the challenged
employment action.” Nichols v. Loral Vought Sys. Corp., 81 F.3d
38, 41 (5th Cir. 1996), citing Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 992 (5th Cir. 1996). “Next, the plaintiff is given the
opportunity to demonstrate that the defendant’s articulated
rationale is merely a pretext for discrimination.” Id. “If [the
plaintiff] can raise a genuine issue of material fact as to
whether he has established pretext, that will suffice to avoid
2
McDonnell Douglas was a Title VII case. Nevertheless, we
have held the framework applicable to ADEA cases. Woodhouse v.
Magnolia Hosp., 92 F.3d at 252 n.3.
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summary judgment.” Id. “[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 plaintiff complains.” Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 994 (5th Cir. 1996).
Assuming arguendo that Rodriguez has established a prima
facie case, he, nevertheless, fails to show that Mrs. Baird’s
reason for his discharge is only pretextual. Mrs. Baird’s
offered an affidavit of the supervisor who observed and performed
the termination of Rodriguez and an accompanying exhibit, both of
which document the “out-of-date produce” reason for Rodriguez’s
termination. Furthermore, Mrs. Baird’s proffered evidence to
show that a former younger employee who had committed the same
violation was likewise terminated.
Rodriguez claims that his supervisor engaged in disparate
treatment by following him on his route because the supervisor
had not followed other route salesmen on their routes. Rodriguez
fails to present any evidence, however, beyond his own bare
assertion that this is so, or to establish how he gained
knowledge of the disparity. His supervisor, on the other hand,
attests that it is his practice to accompany route salesmen on
their routes from time-to-time.
Except for Rodriguez’s subjective assertions that he was
fired because he was an “aging employee,” he offers no evidence
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to show that Mrs. Baird’s proffered reason is false or that
factual circumstances indicate that age discrimination likely
motivated its decision.
B. The ADA Claim
The ADA provides that “[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability.” 42 U.S.C. § 12112(a). Rodriguez
claims that his diabetes and the resultant impairments caused by
his condition were the reasons for his termination. As in his
ADEA claim, Rodriguez again tries to establish discrimination by
inference.
A plaintiff may establish an ADA claim by either direct
evidence or indirect, or inferential, evidence of discrimination.
See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.
1995). We use the McDonnell Douglas burden-shifting approach for
ADA claims where the plaintiff attempts to prove discrimination
through inferential evidence. Id.
Rodriguez fails to present a genuine issue of material fact
as to Mrs. Baird’s legitimate, non-discriminatory reasons for the
termination. Rodriguez does not offer summary judgment evidence
showing that the supervisor responsible for his termination knew
about his diabetes. Rodriguez claims that he had informed two
other Mrs. Baird’s individuals about his condition and contends
that their knowledge should be imputed on the theory of
respondeat superior to the supervisor responsible for his
termination. While respondeat superior is a theory used in ADA
6
cases to impute actions of an employee-agent to the employer, it
is not proper to equate this with the imputing of knowledge
between agents of an employer. Cf. Nichols v. Loral Vought Sys.
Corp., 81 F.3d at 41-42 (upholding summary judgment in an ADEA
claim because an immediate supervisor’s allegedly discriminatory
statements as to an employee’s age could not be imputed to the
relevant decision maker in the employee’s termination).
When assessing Rodriguez’s claim, we are concerned with the
knowledge of the supervisor who was responsible for his
termination. See id. (noting that an ADEA claim must be assessed
from the viewpoint of the relevant decision maker); see also
Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th
Cir. 1995) (noting that “[i]f it does not know of the disability,
the employer is firing the employee ‘because of’ some other
reason”). Rodriguez’s bare assertion that the relevant
supervisor knew about his diabetes and resulting foot problem is
insufficient to make out a fact issue on the supervisor’s
knowledge of his disability. Rodriguez fails to point to any
place in the record in which it can be inferred that the relevant
supervisor was aware of his disability. Therefore Rodriguez
fails to present a fact issue as to whether each of the
employer’s stated reasons was what actually motivated the
employer. See Rhodes v. Guiberson, 75 F.3d at 994 (holding that
an employee must rebut each of the employer’s stated reasons for
employee’s discharge in an ADEA case).
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C. Claim for Violation of ERISA
ERISA § 5103 makes it unlawful for an employer, with
specific discriminatory intent, to interfere with an employee’s
rights to receive compensation from a benefit plan. See Rogers
v. International Marine Terminals, Inc., 87 F.3d 755, 761 (5th
Cir. 1996).
Rodriguez makes two arguments in an attempt to show Mrs.
Baird’s “specific discriminatory intent.” First, Rodriguez
claims that Mrs. Baird’s intentional age and disability
discrimination are sufficient to meet this burden. Since we have
determined that Mrs. Baird’s has offered a legitimate,
nondiscriminatory reason for Rodriguez’s termination, this
argument will not support his ERISA claim.
Second, Rodriguez contends that his loss of benefits is
sufficient to show intentional interference with his rights. We
have held, however, that the incidental loss of benefits due to
discharge is not sufficient to show the requisite intent for a §
510 claim. See Clark v. Resistoflex Co., 854 F.2d 762, 771 (5th
Cir. 1988).
Rodriguez’s failure to show Mrs. Baird’s specific
discriminatory intent to violate § 510 demonstrates that the
district court’s summary judgment was proper on this cause of
action.
3
ERISA § 510 is encoded at 29 U.S.C. § 1140.
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IV. Conclusion
For the foregoing reasons, we affirm the district court’s
judgment.
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