United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-20572
EDWARD FANNING,
Plaintiff-Appellant,
versus
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:02-CV-4544)
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
Edward Fanning challenges the summary judgment awarded
Metropolitan Transit Authority (Metro) against his age
discrimination and retaliation claims under the Age Discrimination
in Employment Act, 29 U.S.C. § 621, et seq. (ADEA). AFFIRMED.
I.
Metro employed Fanning as a manager of architecture in its
planning, engineering, and construction department. Fanning’s
direct supervisor was Gary Lemley (age 51); John Mickelson (age 50)
*
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this opinion should not be published and is not precedent except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.
was the department head. On 9 November 2001, they met with Fanning
to discuss their dissatisfaction with his work, including his
recent inability to meet deadlines and his insubordinate
communications with Metro executives. They told Fanning they
wanted to terminate his employment immediately, but offered him
three options: resign; be fired; or take advantage of Metro’s early
retirement policy upon his upcoming 55th birthday in March 2002.
Fanning responded that they had violated federal law by suggesting
he take early retirement.
Several days later, Fanning complained to Metro’s human
resources department (HR) about the 9 November meeting. HR later
placed Fanning on a 60-day corrective action program (CAP).
In February 2002, after he had been placed on the CAP, Fanning
filed an age discrimination complaint with the EEOC, claiming the
9 November option and Lemley and Mickelson’s subsequent inquiries
about his retirement, constituted age discrimination. The EEOC
determined there was no basis for Fanning’s claim and issued a
right-to-sue letter in August 2002. Fanning’s employment was
terminated after he received that letter.
Fanning brought this ADEA action against Metro, claiming age
discrimination and retaliation. After limited discovery, Metro
moved for summary judgment, contending Fanning could not present a
prima facie case for either claim. Pursuant to the standard for
such judgment, the district court held: Fanning could not
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establish a prima facie case for either claim; and, even if he
could, he could not show that Metro’s legitimate reasons for firing
him were pretext for an underlying discriminatory motive.
Pursuant to Federal Rule of Civil Procedure 59(e), Fanning
moved for reconsideration. He contended the court erred when it:
(1) granted summary judgment prior to the deadline for production
of compelled discovery; and (2) granted such judgment.
The district court denied the motion, holding: it was
untimely; and, in the alternative, the timing of the summary
judgment was not prejudicial to Fanning because the evidence he
sought did not support his prima facie case.
II.
Fanning appeals from the summary judgment and denial of his
motion to reconsider. We address each in turn.
A.
A summary judgment is reviewed de novo. E.g., GDF Realty
Inv., Ltd. v. Norton, 326 F.3d 622, 627 (5th Cir. 2003), cert.
denied, 125 S. Ct. 2898 (2005). Such judgment is proper when
“there is no genuine issue as to any material fact and ... the
[movant] is entitled to a judgment as a matter of law”. FED. R.
CIV. P. 56(c); e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
All inferences must be drawn in favor of the nonmovant, Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); but, “there is no issue for trial unless there is
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sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment may
be granted”, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986) (internal citations omitted).
To establish a prima facie case of ADEA age discrimination, a
plaintiff must show: “1) he was discharged; 2) he was qualified for
his position; 3) he was within the protected class [over age 40];
and 4) he was replaced by someone outside the protected class,
someone younger, or was otherwise discharged because of his age”.
West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir.
2003) (quotation marks omitted). To establish a prima facie case
of ADEA retaliation, a plaintiff must show: he was qualified for
his position; and “(1) ... he engaged in a protected activity, (2)
... there was an adverse employment action, and (3) ... a causal
link existed between the protected activity and the adverse
employment action”. Holtzclaw v. DSC Communications Corp., 255
F.3d 254, 259 (5th Cir. 2001) (citation omitted).
The burden-shifting analysis presented in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies to ADEA discrimination
and retaliation claims when, as here, they are based on
circumstantial evidence. Patrick v. Ridge, 394 F.3d 311, 315 (5th
Cir. 2004) (ADEA retaliation); West, 330 F.3d at 384 (ADEA age
discrimination). If the employee makes a prima facie showing, the
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employer “must produce evidence of a legitimate, nondiscriminatory
reason for its decision to terminate [plaintiff’s] employment”.
West, 330 F.3d at 384. If the employer meets this requirement, the
court must “decide whether [plaintiff] has proved intentional
discrimination. To meet his burden of proof, [plaintiff] can rely
on evidence that [the employer’s] reason for terminating him was
pretextual”. Id. at 385 (internal citation omitted).
The district court held Fanning could not show a prima facie
case for either claim because he did not present any direct or
circumstantial evidence that he was fired for anything but personal
or professional reasons. The court further determined that, even
if Fanning could do so, he presented no evidence of discriminatory
motive or retaliatory animus by Metro.
Fanning contends the district court erred in concluding: (1)
he could not establish a prima facie case for either claim; (2) in
response to Fanning’s claims, Metro presented legitimate, non-
discriminatory reasons for firing him; and (3) Fanning failed to
present evidence that Metro’s reasons for firing him were pretext.
Fanning also maintains the district court refused incorrectly to
apply the mixed-motive standard to his claims. Metro responds that
Fanning did not meet his summary judgment burden of presenting a
prima facie case for either claim because he could not show any
evidence of discriminatory animus on Metro’s part. In the
alternative, Metro maintains the claims still fail as a matter of
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law because Fanning could not produce any evidence that Metro’s
proffered motives for firing him were anything but professional.
Essentially for the reasons stated by the district court,
Fanning’s prima facie case for age discrimination fails because,
inter alia, Lemley and Mickelson’s offer at the 9 November 2001
meeting to allow him to resign when he reached early retirement
age, instead of being fired earlier, is not evidence that Fanning
was terminated because of his age. See Fagan v. New York State
Elec. & Gas Corp., 186 F.3d 127, 133 (2d Cir. 1999).
Fanning’s prima facie case for retaliation fails because he
cannot establish a causal connection between his termination,
planned since November 2001, and the ADEA-protected activities of
complaining to HR or filing a claim with the EEOC. “Employers need
not suspend previously planned [employment actions] upon
discovering that a [claim with the EEOC] has been filed, and their
proceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of causality”.
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).
Because summary judgment was proper based on Fanning’s failure
to establish a prima facie case for age discrimination or
retaliation, we need not reach Fanning’s contention that the
district court applied the incorrect standard in examining whether
he could prove pretext.
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B.
The denial of a Rule 59(e) motion is reviewed for abuse of
discretion. E.g., Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir.
2000). In claiming abuse of discretion, Fanning asserts: (1) his
motion was timely; and (2) summary judgment should not have been
awarded before the deadline for a recently-granted motion to compel
evidence, and, had the court waited until after that deadline, he
could have presented evidence of pretext. Metro replies: Fanning
waived any discovery issue when he did not move for a continuance
under Rule 56(f) (party opposing summary judgment may seek
continuance for further discovery if, for reasons stated, it cannot
present facts adequate to justify opposition); and any error was
harmless because, as Fanning acknowledged, the requested evidence
concerned pretext and did not support his prima facie case for
either claim.
Fanning’s motion was timely. Pursuant to Rules 59(e) and
6(a), he filed it within the requisite ten days after the entry of
the summary judgment order – not counting intervening Saturdays and
Sundays.
In any event, the district court did not abuse its discretion
in ruling, in the alternative, against the motion. “This court has
long recognized that a plaintiff’s entitlement to discovery prior
to a ruling on a motion for summary judgment is not unlimited, and
may be cut off when the record shows that the requested discovery
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is not likely to produce the facts needed by the plaintiff to
withstand a motion for summary judgment.” Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (citation omitted).
Further, our court has foreclosed a party’s contention on appeal
that it had inadequate time to marshal evidence to defend against
summary judgment when the party did not seek Rule 56(f) relief
before the summary judgment ruling. Potter v. Delta Airlines, 98
F.3d 881, 887 (5th Cir. 1996). A Rule 56(f) motion, not one for
reconsideration, is the proper remedy for a party claiming summary
judgment is inappropriate because of inadequate discovery. E.g.,
Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694,
719-20 (5th Cir. 1999), cert. denied, 531 U.S. 917 (2000);
Washington, 901 F.2d at 1285.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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