United States Court of Appeals
Fifth Circuit
F I L E D
May 12, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 05-41085
(Summary Calendar)
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WALTER E. MARTIN,
Plaintiff–Appellant,
v.
BAYLAND INCORPORATED,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas, Galveston
No. 3:04-CV-319
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Walter Martin sued Appellee Bayland Incorporated
(“Bayland”) alleging discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634(“ADEA”)
and the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. §
21.051 (Vernon 2006)(“TCHRA”). Bayland moved for summary
judgment, which the district court granted on May 31, 2005.
*
Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.
Martin now appeals.
I. Background & Procedural History
Martin was born in 1930 and, from 1982 through 2003, worked
at Bayland, a manufacturer of plastic products. For
approximately eight years, he worked as an equipment operator;
after that, and until he was terminated, Martin worked as a
quality controller. Over the course of his employment with
Bayland, Martin fell at least seven times. Following a December,
2002 fall at the office, which ultimately landed Martin in the
hospital for hip surgery, Jim Moses, Bayland’s owner, approached
Martin to terminate his employment. In January 2003, he told
Martin: “I think it’s time to hang it up and you – for you to
retire.” Martin submitted a claim to the Equal Employment
Opportunity Commission, which issued a right to sue letter. On
May 19, 2004, Martin sued in the U.S. District Court for the
Southern District of Texas, which granted Bayland summary
judgment.
II. Standard of Review
We review a district court’s grant of summary judgment de
novo. Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.
2004). Summary judgment is appropriate 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
2
is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(C); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). An issue as to a material fact is “genuine” if the
evidence would permit a reasonable jury to return a verdict for
the non-moving party. Roberson v. Alltel Info. Servs., 373 F.3d
647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The evidence must be construed in a
light most favorable to the non-moving party and doubts resolved
in its favor. Id.
III. Discussion
Martin argues that the district court’s dismissal of his
claim was in error because he presented sufficient direct or,
alternatively, circumstantial evidence of discriminatory animus.
A. Direct Evidence
Martin argues that Moses’ remark–“I think it’s time to hang
it up and you – for you to retire”–constitutes direct evidence of
discrimination. Direct evidence is “evidence that, if believed,
proves the fact of discriminatory animus without inference or
presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
897 (5th Cir. 2002). Martin’s evidence cannot be considered
direct because it requires one to infer that he was fired because
of his age based on Moses’ comment that it was time for him to
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retire.1 There is a link between retirement and age, but it is
not a necessary one. Martin presents no direct evidence.
B. Circumstantial Evidence
Martin does not present sufficient circumstantial evidence
of discriminatory animus to survive summary judgment. ADEA
“[p]laintiffs producing only circumstantial evidence of
discriminatory animus . . . must negotiate the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green.”
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
In the McDonnell Douglas analysis, once a plaintiff makes out a
prima facie case of discrimination under Title VII, he or she is
entitled to a presumption of discrimination, which the defendant
may rebut by presenting a legitimate, nondiscriminatory reason
for its actions. Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 404 (5th Cir. 1999). If the defendant succeeds in rebutting
the presumption, the plaintiff must establish that the
defendant’s proffered reason for its action is pretextual. Id.
In granting summary judgment, the district court concluded
that Martin failed to demonstrate that Bayland’s proffered
1
In Sandstad, we rejected as direct evidence comments
requiring less of an inferential leap to animus than that
required here. Stock analysts were quoted as complaining about
“too much grey hair” in company management and a supervisor told
the plaintiff that the Chief Executive Officer had decided to
“skip a generation” in selecting plaintiff’s replacement. 309
F.3d at 895. The Sandstad comments more directly implicate age
than the word “retire,” at issue here.
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legitimate, non-discriminatory reasons for firing him, economic
considerations and safety, were pretextual. Martin argues that
safety is not validly considered, and that both reasons are
unworthy of credence and demonstrably false.
There are two ways to avoid summary judgment in an ADEA case
such as this, following the defendant’s proffer of its
legitimate, non-discriminatory reason: “(1) the plaintiff may
offer evidence showing that the defendant’s proffered
nondiscriminatory reasons are false; or (2) the plaintiff may
offer evidence showing that his age was a motivating factor for
the defendant’s adverse employment decision.” Machinchick, 398
F.3d at 351 (citing Rachid v. Jack in the Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004)).
Martin first dismisses Bayland’s safety rationale. Based on
Moses’ affirmative reply in deposition that economic reasons were
the only ones for which Martin was terminated, Martin argues the
safety rationale is “attorney dicta,” mere speculation
unsupported by admissible evidence. However, later in the same
deposition, Moses discusses Martin’s being a hazard to himself
and other co-workers. Additionally, in its response to Martin’s
interrogatories, Bayland wrote that “Plaintiff’s position was
eliminated for economic reasons. Additionally, the Plaintiff was
unable to perform his duties in a safe manner.”2 Rule 56
2
We find no merit to Martin’s argument that “perform[ing]
his duties in a safe manner” is a reason distinct from being a
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specifically identifies answers to interrogatories as a species
of evidence on which a court may rely in granting summary
judgment. The district court did not err in considering safety
as one of Bayland’s legitimate, nondiscriminatory reasons.
Martin attacks both the economic and safety rationales as
false and unworthy of credence. He points to the fact that Moses
did not mention either when he informed Martin of his
termination, telling him instead that it was time to retire, as
evidence of the rationales’ falsity. This omission does not
suggest that either rationale is false. Then, turning from
imbuing Moses’ words with extra meaning to stripping them of any,
Martin argues, citing Reeves v. Sanderson Plumbing Products,
Inc., that the vacuity of the words is proof of an attempt to
cover up the real reason for the termination, discrimination.
530 U.S. 133 (2000). Reeves is not helpful to Martin’s cause.
There, the Supreme Court held that a defendant’s proof that an
employer’s proffered legitimate, nondiscriminatory reason for an
adverse employment action was unworthy of credence could allow
for a finding of discrimination. Id. at 147-48. Here, Martin
provides only the reasons themselves as evidence of their lack of
credence; no independent facts support his theory.
Martin also argues that pretext must be inferred because
Bayland’s legitimate, nondiscriminatory reasons conflict.
hazard to himself and to other employees.
6
Selectively quoting statements by Moses and Bayland, he
identifies four reasons: (1) retirement, (2) safety, (3)
elimination of the position and (4) economic reasons. The record
supports Bayland’s repeated claim that Martin was terminated
because of safety and economic concerns,3 and he fails to
establish how these reasons conflict.
Martin contends the safety rationale is speculative, legally
insufficient and demonstrative of disparate treatment. Given the
number of accidents Martin admitted to in his deposition, we find
no error in the district court’s characterization of a “pattern”
of accidents. Martin argues that Dothard v. Rawlinson precludes
Bayland from justifying the termination using Martin’s safety.
433 U.S. 321 (1977). We have never adopted this view of Dothard.
See e.g., Chiari v. City of League City, 920 F.2d 311, 316 (5th
Cir. 1991) (“[T]he holding of Dothard supports a conclusion that
the City can exclude Chiari from a job because of fears about his
safety.”) (emphasis in the original). Martin’s attempt to
establish disparate treatment by demonstrating that another
3
Two of these “reasons” are not actually proffered by
Bayland. Forced retirement means nothing apart from the reasons
driving it. Martin attempts to assign independent meaning to
Moses’ comment that it was time to retire, imputing to it ageism.
This reading presupposes the discriminatory animus it is intended
to prove. Likewise, Martin appears to manufacture position
elimination as an independent reason proffered by Bayland for his
dismissal. The letter to the EEOC on which he relies does not
support his theory as it clearly identifies safety as a major
concern, mentioning that the position had been eliminated only in
passing.
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worker also fell on the job does not succeed because he does not
establish how that worker’s single fall demanded the same
treatment as the pattern of falls exhibited by Martin. He does
not succeed in rebutting Bayland’s safety rationale.
Martin also attacks Bayland’s economic rationale, denying
the company had an economic need to terminate him. The only
evidence he proffers to this effect is Bayland’s timing in
terminating him and several notations on a company record of
staff reduction, which indicate certain employees retired and
were fired, rather than being laid off. With respect to the
notations, while there is a lack of clarity from the record as to
why each listed individual left Bayland’s employment, it is not
disputed that staff rolls were reduced by 50%. Martin’s timing
argument is that the company’s failure to fire him months before,
when economic problems became manifest and before things began to
improve, demonstrates that the economic justification is
pretextual. Because they are not inconsistent with terminating
an employee for economic reasons, neither Bayland’s failure to
fire Martin earlier nor the fact its finances had begun to
improve suffice to establish that the economic rationale was
pretextual.
Martin fails to rebut Bayland’s proffered legitimate,
nondiscriminatory reasons for his termination. Pointing only to
Moses’ “it’s time to retire” remark and two other innocuous
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retirement references,4 Martin also fails to establish that age
was a motivating factor in his termination. The word “retire,”
does not, by its very use, bear this kind weight.
IV. Conclusion
For the reasons above, the judgment of the district court is
AFFIRMED.
4
In a company record, Martin was listed as having retired.
Additionally, a workers’ compensation insurance adjustor
testified that, in March 2003, after Martin’s December fall when
he was not working and was receiving compensation for his injury,
Moses told the adjuster Martin had retired. If anything, these
references imply Moses believed Martin had retired.
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