Filed: Mar. 16, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 16, 2007 Charles R. Fulbruge III Clerk No. 05-20630 BERNARD WHITE, Plaintiff-Appellant, versus OMEGA PROTEIN CORPORATION; OMEGA PROTEIN INC., Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas (4:03-CV-3632) Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit Judges. PER CURIAM:* Bernard White contests the summary judgment awarded h
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 16, 2007 Charles R. Fulbruge III Clerk No. 05-20630 BERNARD WHITE, Plaintiff-Appellant, versus OMEGA PROTEIN CORPORATION; OMEGA PROTEIN INC., Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas (4:03-CV-3632) Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit Judges. PER CURIAM:* Bernard White contests the summary judgment awarded hi..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-20630
BERNARD WHITE,
Plaintiff-Appellant,
versus
OMEGA PROTEIN CORPORATION; OMEGA PROTEIN INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-3632)
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Bernard White contests the summary judgment awarded his former
employer, Omega Protein Corporation, against his claims under the
Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq.
(ADEA), and the Employee Retirement Income Security Act, 29 U.S.C.
§ 1001 et seq. (ERISA). AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
Omega’s business involves catching and processing menhaden to
sell as fish meal and oil. In 1998, White, then 50 years old, was
hired as a vice president by business acquaintance Joseph von
Rosenberg, Omega’s president and CEO. White was to manage Omega’s
governmental affairs, investor relations, and public affairs.
Governmental affairs was White’s primary responsibility, as any
political or regulatory actions that might jeopardize Omega’s
fishing activities were of critical importance.
Although White was given a high level of responsibility and
autonomy during his first few years, several incidents caused von
Rosenberg to question White’s performance. First, in 2001, despite
White’s opposition, New Jersey passed legislation banning Omega
from fishing in its waters (New Jersey incident).
Then, in 2002, Omega was caught unaware by an impending
Mississippi public regulatory hearing to consider restricting
Omega’s Mississippi fishing grounds (Mississippi incident). After
engaging a law firm, Omega ultimately defeated this proposed
restriction; but, it disclosed the incident as a possible adverse
outcome in its quarterly public reporting. White’s governmental-
affairs responsibilities were reduced after the Mississippi
incident. (This reduction occurred in September 2002, shortly
after White’s return to full-time status, after approximately six
months of cancer treatment and recovery.)
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Finally, in 2003, Alabama passed a regulation restricting a
portion of Omega’s fishing grounds (Alabama incident). Omega
recouped most, but not all, of these grounds.
White was terminated by von Rosenberg in 2003. Concomitantly,
White was offered, and accepted, the opportunity to remain with
Omega as an independent consultant under direct supervision.
Because he was no longer an Omega employee, White no longer
received employee benefits.
II.
A summary judgment is reviewed de novo, applying the same
standards as the district court. E.g., Keelan v. Majesco Software,
Inc., 407 F.3d 332, 338 (5th Cir. 2005). Such judgment is proper
when “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 is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c); see, e.g., Celotex Corp. v. Catrett,
477 U.S. 317,
322-23 (1986). A genuine issue of material fact (material fact
issue) exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”. Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 248 (1986). In reviewing a summary
judgment, all justifiable inferences are drawn in favor of the
nonmovant. E.g., Bodenheimer v. PPG Indus., Inc.,
5 F.3d 955, 956
(5th Cir. 1993).
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A.
White contends his termination was age discrimination. In
reviewing the summary judgment against White’s ADEA claim based on
circumstantial evidence, the McDonnell Douglas burden-shifting
framework is employed. E.g., Patrick v. Ridge, 394 F.3d 311, 315
(5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green,
411 U.S.
792 (1973)). For summary-judgment purposes, a material fact issue
would preclude such judgment against White.
Pursuant to this framework, White must present a prima facie
case of discrimination, which, under ADEA, requires him to
establish he: (1) is a member of the protected class (over 40
years old); (2) was qualified for his position; (3) was discharged;
and (4) was replaced by someone outside the protected class,
someone younger, or was otherwise discharged because of age. E.g.,
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223-24 (5th Cir.
2000) (citation omitted).
A prima facie case creates a rebuttable presumption of
unlawful employer discrimination. E.g., Patrick, 394 F.3d at 315.
To rebut this presumption, the employer must articulate a
legitimate, nondiscriminatory reason for its decision.
Id. If it
does so, the presumption of discrimination falls away; the employee
must then show the employer’s putative legitimate,
nondiscriminatory reason was merely a pretext for discrimination.
Id.
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Whether White presented a prima facie case is a point of much
contention between the parties. In any event, he fails to show,
for summary-judgment purposes, that Omega’s proffered
nondiscriminatory reasons for his termination were mere pretext.
Omega maintains White’s termination was, inter alia, due to
the New Jersey, Mississippi, and Alabama incidents, which
illustrated his inadequacy in his critical governmental-affairs
role. In attempting to create a material fact issue on pretext,
White contends: the incidents were either not serious, or not his
fault; his immediate rehire as an independent consultant shows he
was qualified; and, at his termination meeting, von Rosenberg told
him he was “too old and tired for the job”.
Concerning the alleged too-old-and-tired comment, White
asserts the district court erred in refusing to consider it. The
comment was first mentioned by White in his deposition. The
district court refused to consider the alleged comment because it
was not mentioned until 18 months after White’s termination; it was
not alleged in his complaint (even as twice amended), his sworn
EEOC memorandum, or his documentation of his termination meeting.
Relying on Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997), the
district court, while recognizing it “must construe all facts in
favor of [the] [p]laintiff”, concluded it was “not required to
accept as true a statement that no reasonable person would
5
believe”. White v. Omega Protein Corp., 390 F. Supp. 2d 604, 609
(S.D. Tex. 2005).
We need not decide whether this belatedly-claimed comment
should have been considered by the district court. Even
considering it in our de novo review, White’s summary-judgment
evidence of pretext does not, in the light of the “same-actor
inference” adopted in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th
Cir. 1996), create a requisite material fact issue. When the same
person is responsible for hiring and terminating an individual, who
was already a member of the AEDPA-protected class when hired,
there is an inference that age was not the reason for the
termination. See
id. at 658 (“[c]laims that employer animus exists
in termination but not in hiring seem irrational. From the
standpoint of the putative discriminator, [i]t hardly makes sense
to hire workers from a group one dislikes ... only to fire them
once they are on the job” (quoting Proud v. Stone,
945 F.2d 796,
797 (4th Cir. 1991)) (internal quotation marks omitted)).
Moreover, “[t]he fact that the actor involved in both
employment decisions is also a member of the protected class only
enhances the inference”. Id. (citation omitted). As noted, White
was hired at age 50 by von Rosenberg, and was terminated five years
later, also by von Rosenberg, who was then 44.
Further, White does not dispute the occurrence of the New
Jersey, Mississippi, and Alabama incidents. Nor does he dispute
6
the reduction in his responsibilities. Finally, although White was
rehired by Omega, it was in a significantly-less-autonomous
consulting capacity.
In sum, White does not create a material fact issue on whether
Omega’s proffered reasons for terminating his employment were
pretext for age discrimination. Therefore, summary judgment was
proper against his ADEA claim. See id. at 656-58 (applying same-
actor inference, and holding plaintiff failed to meet evidentiary
burden on pretext issue, even where employer’s alleged comments
“impl[ied] that [the employer] believed [the employee’s] age was
affecting his job performance”); West v. Nabors Drilling USA, Inc.,
330 F.3d 379, 385 (5th Cir. 2003) (“It is ‘possible for a
plaintiff’s evidence to permit a tenuous inference of pretext yet
be insufficient to support a reasonable inference of
discrimination.’” (quoting Crawford v. Formosa Plastics Corp., La.,
234 F.3d 899, 903 (5th Cir. 2000))).
B.
White also maintains his termination wrongfully interfered
with his employment benefits, in violation of ERISA. See 29 U.S.C.
§ 1140. Because White fails to create a material fact issue
regarding Omega’s proffered reasons for his termination, the
summary judgment against his ERISA claim was also proper. See
Unida v. Levi Strauss & Co., 986 F.2d 970, 979-80 (5th Cir. 1993)
(holding, to recover under ERISA, the plaintiff must show the
7
employer had the “specific intent” of interfering with plaintiff’s
ERISA benefits).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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