United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-31278
Summary Calendar
EUGENE BARBER,
Plaintiff-Appellant,
versus
THE SHAW GROUP, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:05-CV-211)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to a consulting company’s recommendation that Shaw
Group, Inc. (Shaw) reduce personnel by approximately 30 percent,
Eugene Barber was laid off from his position as a pipefitter.
Barber filed this action, raising state and federal age-
discrimination claims and state breach-of-contract and abuse-of-
rights claims. The district court granted Shaw’s summary-judgment
motion, dismissing the federal age-discrimination claim with
prejudice, the state-law claims without prejudice.
*
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this opinion should not be published and is not precedent except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.
The federal age-discrimination claim is the only subject of
this appeal. In contesting the summary judgment on that claim,
Barber maintains the district court improperly applied our burden-
shifting analysis. Essentially for the reasons stated by the
district court, we affirm.
A summary judgment is reviewed de novo, applying the same
standard as the district court. E.g., Coleman v. New Orleans and
Baton Rouge S.S. Pilots’ Ass’n, 437 F.3d 471, 478 (5th Cir.), cert.
denied, 126 S. Ct. 2970 (2006). The evidence is considered in the
light most favorable to the nonmovant. E.g., Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).
Summary judgment is proper if there is no genuine issue as to any
material fact, and the movant is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c).
Barber bore the initial burden of presenting a prima facie
case of age discrimination by showing: (1) he is a member of a
protected class; (2) he was qualified for his position; (3) he was
discharged; and (4) he was either (a) replaced by someone outside
the protected class; (b) replaced by someone younger; or (c)
otherwise discharged because of age. Baker v. Am. Airlines, Inc.,
430 F.3d 750, 753 (5th Cir. 2005). Barber claims to have met his
burden by being: a member of a protected class; qualified as a
pipefitter; laid off; and the subject of comments by the foreman of
his group that he would be terminated soon “because [he was] an old
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man and getting close to retirement age”. As did the district
court, we assume Barber satisfied this burden.
Shaw then bore the burden of presenting a legitimate,
nondiscriminatory reason for the termination. Id. It did so by
providing evidence that: Barber was laid off pursuant to a
significant workforce reduction; and, although he was qualified for
his position, another worker was retained because he, unlike
Barber, was multi-skilled. See EEOC v. Texas Instruments Inc., 100
F.3d 1173, 1181 (5th Cir. 1996) (“In the context of a reduction in
force, which is itself a legitimate, nondiscriminatory reason for
discharge, the fact that an employee is qualified for his job is
less relevant — some employees may have to be let go despite
competent performance.”).
The district court properly held that, after Shaw established
a legitimate, nondiscriminatory reason for the lay off, Barber was
required, pursuant to his ultimate burden of persuasion on the
issue of intentional discrimination, to demonstrate a genuine issue
of material fact on whether the reason for termination presented by
Shaw is merely a pretext for discrimination or is only one of the
reasons for its action. Rachid v. Jack In The Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004). Contrary to Barber’s contentions, the
district court did not require him to disprove Shaw’s articulated
reasons; he was required only to provide evidence sufficient to
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create a material fact issue on whether his termination was
motivated by age.
Barber failed to meet this burden. He does not create the
requisite material fact issue on whether Shaw’s articulated reasons
for the reduction in force and Barber’s relative lack of
qualifications were false and a pretext for discrimination. He was
not released in the first found of lay-offs; rather, it was not
until Shaw was required to reduce the number of maintenance shop
employees that he was discharged. Furthermore, the one age-related
remark by a supervisor cannot create a material fact issue on
whether Shaw’s decision was motivated by age discrimination. The
foreman who made the remark did not have authority over the
employment decision at issue, and he was reprimanded for making it.
See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)
(for a comment in the workplace to “provide sufficient evidence of
discrimination”, it must be, inter alia, “made by an individual
with authority over the employment decision at issue”).
AFFIRMED
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