United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 7, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30938
ST. GEORGE CREAGHE,
Plaintiff-Appellant,
versus
ALBEMARLE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 97-CV-803
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant St. George Creaghe was employed by Appellee
Albemarle Corporation and its predecessor-in-interest for nearly
thirty years before being dismissed in 1996. Creaghe, who was
seventy-two at the time of his dismissal, alleged that his firing
was motivated by his age and filed suit in district court, raising
claims of discrimination under the Age Discrimination in Employment
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
Act (“ADEA”).1 The district court concluded that Creaghe failed to
make out a prima facie case of discrimination and granted summary
judgment in favor of Albemarle Corporation. Creaghe now appeals,
urging that he produced evidence that his discharge was motivated
by discriminatory animus and that the non-discriminatory reasons
offered by Albemarle are pretextual. For the following reasons, we
AFFIRM the district court’s decision.
I
Before addressing Creaghe’s ADEA claims, we must first assess
whether we have jurisdiction over this appeal. Creaghe filed his
notice of appeal on September 29, 2003. Albemarle contends that
this notice was untimely because the district court’s February 28,
2001, “Ruling on Motion for Summary Judgment” was a final judgment
that dismissed Creaghe’s suit. In response, Creaghe argues that
the time for filing his appeal did not commence until the court
issued its “Judgment” on September 22, 2003. He insists that the
February 2001 order was not a final judgment because it did not
comply with the requirements of Rule 58 of the Federal Rules of
Civil Procedure and because it did not, by its terms, dismiss the
case.
Rule 58 requires that every judgment be (1) set forth on a
separate document and (2) entered on the district court’s civil
docket sheet. “The sole purpose of Rule 58's separate-document
requirement was to clarify when the time for an appeal begins to
1
29 U.S.C. § 621 et seq.
run.”2 Thus, it must be “mechanically applied in order to avoid
new uncertainties as to the date on which a judgment is entered.”3
However, the separate document requirement “should be read, where
reasonably possible, to protect the right to appeal.”4 “It must be
remembered that the rule is designed to simplify and make certain
the matter of appealability. It is not designed as a trap for the
inexperienced. . . .”5 Thus, “[t]he rule should be interpreted to
prevent loss of the right of appeal, not to facilitate loss.”6
Contrary to Creaghe’s assertions, the district court’s
February 2001 order appears to satisfy Rule 58's separate document
requirements. To be “separate,” a judgment must be apart from any
document detailing either the court’s factual findings or the legal
basis of the court’s ruling; it may not be part of a memorandum or
opinion.7 The order in this case fully complies with this
2
Ludgood v. Apex Marine Corp. Ship Management, 311 F.3d 364,
368 (5th Cir. 2002) (citing Bankers Trust Co. v. Mallis, 435 U.S.
381 (1978)).
3
United States v. Indrelunas, 411 U.S. 216, 222 (1973).
4
Seiscom Delta, Inc. v. Two Westlake Park, 857 F.2d 279, 282
(5th Cir. 1988).
5
Seiscom, 857 F.2d at 283 (internal citations omitted).
6
Id.
7
See, e.g., Whitaker v. City of Houston, Tex., 963 F.2d 831,
833 (5th Cir. 1992) (“Until set forth on a separate document in
compliance with Rule 58, a statement tacked on at the end of an
opinion is not a judgment.”); see also Notes of Advisory Committee
on Rules, 1963 Amendment to FED. R. CIV. P. 58 (“The amended rule
eliminates these uncertainties by requiring that there be a
judgment set out on a separate document--distinct from any opinion
or memorandum--which provides the basis for the entry of
directive: it contained no discussion of the reasoning behind the
court’s decision, did not mention the facts of the case, did not
discuss the parties’ contentions, and cited no legal authority.
Indeed, it contained only four sentences, the final and most
prominent of which clearly stated that “IT IS ORDERED that the
Motion for Summary Judgment filed on behalf of defendant Albemarle
Corporation is hereby GRANTED, and this action will be dismissed.”
To be sure, the order did include some other basic information --
specifically, a brief introductory statement identifying the matter
before the court and a sentence defining the court’s jurisdiction.
However, the inclusion of this bare information alone does not
transform the order into a memorandum or opinion.8 Nor does the
fact that the order was called a “Ruling” rather than a “Judgment”
affect its status under Rule 58.9
judgment.”).
8
See, e.g., Nunez-Soto v. Alvarado, 956 F.2d 1 (1st Cir.
1992) (holding that an order was a “separate document” despite the
inclusion of a single explanatory sentence); Hamilton v. Nakai, 453
F.2d 152 (9th Cir. 1971) (holding that an order, designated as
such, was a “separate document” even though it included a one-
sentence explanation); cf. Taylor v. Sterrett, 527 F.2d 856 (5th
Cir. 1976) (holding that an order which included the court’s
opinions, findings, and conclusions was not a “separate document”);
Hughes v. Halifax County Sch. Bd., 823 F.2d 832 (4th Cir. 1987)
(finding that an order which included procedural history, arguments
presented, and reasons for disposition was not a separate
document).
9
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
528 (5th Cir. 1996) (“[T]he Supreme Court has held that no form of
words and no peculiar formal act is necessary to evince the
rendition of a judgment” (citations and internal quotations
omitted)).
Nonetheless, there are weighty considerations discouraging us
from concluding that Creaghe’s appeal was untimely. The February
Ruling, most notably, clearly stated that the action “will” be
dismissed; it did not, by its express terms, dismiss the suit. The
order thus contemplated that a separate final judgment would later
issue, and Creaghe was justified in relying on the court’s clear
representation.10 Moreover, the district court itself stated that
it “never intended it’s [sic] Ruling of February 28, 2001 to be a
final decision. The document is not, nor was it ever intended to
be, a judgment.”11
Although the question is fairly close, we agree -- in light of
the ambiguous language in the district court’s February 2001 Ruling
and our generous approach to Rule 58 issues -- that the time for
filing the notice of appeal did not commence until September 22,
2003, the date on which the court issued its Judgment. We
interpret Rule 58's requirements to prevent the loss of an appeal
whenever reasonable. Even if the February 2001 Ruling might have
been sufficient to satisfy Rule 58's requirements, “we are
reluctant to hold that because such an order has been entered, the
10
We have stated in the past that “[t]he mere fact that a court
reenters a judgment or revises a judgment in an immaterial way does
not affect the time within which litigants must pursue an appeal.”
Offshore Prod. Contractors Ins. Co. v. Republic Underwriters, 910
F.2d 224, 229 (5th Cir. 1990). Given the wording of the February
order, the later September Judgment cannot fairly be considered a
simple “reentry” of judgment.
11
Creaghe v. Albemarle Corp., No. 97-cv-803 (M. D. La. Feb. 10,
2003) (order granting Creaghe an extension of time to file a notice
of appeal).
parties may not appeal from a later separate order which clearly
meets the requirements of Rule 58.”12 Accordingly, we acknowledge
our jurisdiction and proceed to consider the merits of Creaghe’s
appeal.
II
The district court concluded that Creaghe failed to establish
a prima facie case of discrimination under the ADEA and granted
Albemarle’s motion for summary judgment. We review a district
court’s grant of summary judgment de novo.13
“In a reduction-in-force case, a plaintiff makes out a prima
facie case by showing (1) that he is within the protected age
group; (2) that he has been adversely affected by the employer's
decision; (3) that he was qualified to assume another position at
the time of the discharge; and (4) ‘evidence, circumstantial or
direct, from which a factfinder might reasonably conclude that the
employer intended to discriminate in reaching the decision at
issue.’”14 The district court found that Creaghe clearly satisfied
the first two elements of this test: he was seventy-two at the time
of his firing, and the firing was clearly an “adverse” employment
action. However, the court concluded that he failed to offer
12
Kline v. Department of Health & Human Services, 927 F.2d 522,
523 (10th Cir. 1991).
13
Rogers v. International Marine Terminals, 87 F.3d 755, 758
(5th Cir. 1996).
14
Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th
Cir. 1996) (quoting Amburgey v. Corhart Refractories Corp., Inc.,
936 F.2d 805, 812 (5th Cir. 1991)).
anything more than conclusory allegations to support the final two
prongs. We agree.
In an effort to demonstrate that he was qualified for another
position at Albemarle, Creaghe states in conclusory terms that he
was qualified for the position of Equipment Maintenance Planner at
Albemarle “and/or any other similar positions.” At the time of his
discharge, however, the Equipment Maintenance Planner position was
held by another employee. When that employee abruptly retired two
months after Creaghe’s termination, Creaghe did not apply for the
position. Moreover, beyond his conclusory assertion, Creaghe has
not demonstrated that he was qualified to be the Equipment
Maintenance Planner, a position which clearly required computer
skills that Creaghe concedes he lacked. Creaghe has identified no
alternative position for which he was qualified when he was fired.
He thus fails to satisfy the third prong of his prima facie test.
Creaghe has also failed to satisfy the fourth prong because he
provides no evidence, direct or circumstantial, indicating a nexus
between his discharge and his age. The only support he provides
for his argument is a reference to the Equipment Maintenance
Planner position. Creaghe argues that shortly after his firing,
Albemarle placed advertisements for this position in local
newspapers and eventually hired a much younger man. He asserts
that this position was actually the same as his former position,
and that Albemarle’s decision to hire a younger man to fulfill the
role is evidence of discriminatory intent.
Creaghe’s argument is unpersuasive. Creaghe offers no proof
that the advertised Equipment Maintenance Planner position was
actually his former position, and the summary judgment record
clearly indicates otherwise. For example, both positions were in
place at Albemarle at the same time, belying any suggestion that
Albemarle added the Equipment Maintenance Planner position to
replace Creaghe’s position. Moreover, Equipment Maintenance
Planner required job skills that Creaghe admittedly did not
possess, including specialized computer training. The position
also included job responsibilities beyond those covered by
Creaghe’s former position. Creaghe provides nothing more than a
conclusory allegation to support his claim that the two positions
were the same, but such allegations are insufficient in response to
a motion for summary judgment.15 Creaghe fails to offer any other
evidence suggesting a nexus between his termination and his age.
Accordingly, Creaghe failed to satisfy the fourth prong of his
prima facie case.
Even if we were to assume that Creaghe made a prima facie
showing of discrimination, he failed to rebut Albemarle’s
articulated non-discriminatory explanation for his discharge.
Albemarle asserts that following the sale of a sizable portion of
its business, it had to reduce its workforce and that Creaghe’s
position was eliminated as a result. Albemarle also asserts that
15
Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (“[C]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the
nonmovant's burden.”).
the incorporation of a specialized computer system eliminated the
need for Creaghe’s position. Creaghe urges that these reasons are
pretextual, but the only argument he offers is yet another
reference to the advertisement of the Equipment Maintenance Planner
position. He again states that this position was advertised in
local newspapers and that this advertisement undermines Albemarle’s
claim that it needed to reduce its workforce. However, he offers
no indication why the advertisement of the Equipment Maintenance
Planner position -- a different position with different job
requirements -- demonstrates pretext.
III
Since Creaghe failed either to make out a prima facie case or
to rebut Albemarle’s non-discriminatory justifications for his
discharge, the district court was correct in dismissing his suit.
AFFIRMED.