IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20868
Summary Calendar
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WOODY F. DUNCAN,
Plaintiff-Appellant,
VERSUS
EXXON CORPORATION,
d/b/a Exxon Chemical, U.S.A.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA H 93 1888)
_________________________
July 31, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Woody Duncan appeals the denial of his post-judgment motion
challenging the summary judgment entered in this action charging
his former employer, Exxon Corporation ("Exxon"), with violations
of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§ 621 et seq., and the Texas Commission on Human Rights Act
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
("TCHRA"), TEX. REV. CIV. STAT. ANN. art. 5221k. Finding no error, we
affirm.
I.
Duncan alleged that he was forced to resign because of his age
and disability. Exxon filed a motion for summary judgment
asserting that Duncan was terminated because he had failed to
comply with Exxon's policy on alcohol and drug use. Following a
hearing, the district court granted Exxon's motion and entered
final judgment.
II.
Summary judgment is appropriate if, "viewing all of the
elements in the light most favorable to the non-movant, there is no
genuine issue to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991) (internal
quotations, citation, and footnote omitted). If a movant carries
his burden, the non-movant must set forth specific facts showing
that there is a genuine issue for trial. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Summary
judgment must be entered against the party who fails to establish
elements essential to his case as to which he will bear the burden
of proof at trial. Id.
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III.
Duncan contends that the district court erred in concluding
that he had not presented a prima facie case of age discrimination
under the ADEA. To establish a prima facie case, Duncan must have
shown that he "(1) was discharged; (2) was qualified for the
position; (3) was within the protected class at the time of the
discharge; (4) was replaced by someone outside the protected class
or (5) by someone younger, or (6) show otherwise that his discharge
was because of age." Crum v. American Airlines, 946 F.2d 423, 428
(5th Cir. 1991) (quotation and citation omitted).
If Duncan had established a prima facie case, the burden would
shift to Exxon to show a legitimate, non-discriminatory basis for
the termination. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253-54 (1981). If Exxon made that showing, the
burden would shift to Duncan to show that the reason was merely a
pretext for a discriminatory termination. See McDaniel v. Temple
Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985).
The district court found that Duncan did not create a question
of fact with respect to whether the reasons given for his discharge
were a mere pretext for age discrimination. It is undisputed that
Exxon discharged Duncan for failure to comply with its policy on
alcohol and drug use. The evidence Duncan presented to show
pretext included an internal memorandum and his affidavit of
statements made by his supervisors.
With respect to the memorandum, it was a list of "thoughts and
questions" related to possible disciplinary action against Duncan.
3
One of the questions asked was whether Duncan was over forty years
old. Taken in the context of the entire memo, this does not show
that Duncan was being considered for disciplinary action based upon
his age, but rather it was simply to determine whether Duncan was
in a protected class. Duncan also asserts that this memo shows
that other cases of his alleged misconduct did not result in
termination. Duncan, however, has not shown that he was given
harsher treatment because of his age. "Whatever the employer's
decisionmaking process, a disparate treatment claim cannot succeed
unless the employee's [age] actually played a role in that process
and had a determinative influence on the outcome." Hazen Paper Co.
v. Biggins, 113 S. Ct. 1701, 1706 (1993); see also Purcell v.
Seguin State Bank & Trust Co., 999 F.2d 950, 955-58 (5th Cir.
1993).
In Hazen, the Court concluded that firing an employee because
his pension was about to vest was not, in and of itself, enough to
show a violation of the ADEA, because that decision was based upon
years of service, not age. Id. at 1706-08. The Court noted that
such behavior may not be lawful, but it was not a violation of the
ADEA. Id. at 1707. The Court gave the following example: "It
cannot be true that an employer who fires an older black worker
because the worker is black thereby violates the ADEA. The
employee's race is an improper reason, but it is improper under
Title VII, not the ADEA." Id.
The statements made by Duncan's supervisors do not suggest
that Duncan's age was a determining factor in his termination. The
4
supervisors noted that Duncan had worked for Exxon for over twenty
years and that he would be eligible for retirement in a few years.
One of the supervisors commented that it was not worth paying
Duncan $55,000 a year for the six years it would take him to reach
early retirement age. None of these statements shows that Duncan
was discharged because Exxon believed his productivity had fallen
because of his age. See Hazen, id. at 1706. Although Duncan's
evidence may raise a question as to whether he was unjustly
discharged, it does not create a genuine issue of material fact
that he was unjustly discharged because of his age. Accordingly,
the district court did not err in granting summary judgment under
the ADEA.
IV.
Duncan also asserts that the district court erred in finding
that there was no genuine issue of material fact that he had been
dismissed as a result of the disability in violation of the TCHRA.
Under the TCHRA, a complainant must show that he was disabled and
that he was terminated solely because of the disability. See
McIntyre v. Kroger Co., 863 F. Supp. 355, 357-58 (N.D. Tex. 1994).
The court granted summary judgment because it found that Duncan had
not shown any relationship between his termination and his medical
problem (an inner ear disorder).
Duncan presented his own affidavit of statements made by his
supervisors that they were aware of his health problems. Although
these statements confirm that Exxon knew of his inner ear problems
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and earlier back condition, they do not show that these problems
motivated his discharge. To the contrary, the comments are
directed to whether it would be prudent to discharge Duncan because
of his medical problems. The evidence suggests that Exxon may have
considered not terminating Duncan because of potential problems
resulting from his medical condition, not that he was being
discharged because of his medical condition. The district court
did not err in granting summary judgment on this claim and did not
abuse its discretion in denying Duncan's post-judgment motion.
AFFIRMED.
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