* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31272

KENNETH W AUSTIN; THEODORE PLAUCHE; JAMES DIDIER; 

JOSEPH LEA

Plaintiffs–Appellants

v.

LOUISIANA GENERATING LLC; NRG ENERGY INC

Defendants–Appellees

Appeal from the United States District Court

for the Middle District of Louisiana, Baton Rouge

No. 3:00–CV–1728

Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants Kenneth W. Austin (age 55), James Didier (age 57),

Theodore Plauche (age 48), and Joseph Lea (age 62 and African American)

(collectively, “Plaintiffs”) appeal the summary judgment granted in favor of

defendants-appellees Louisiana Generating, L.L.C. (“LaGen”) and NRG Energy,

Inc. (“NRG”), (collectively, “Defendants”) on their discrimination claims under

the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) (the “ADEA”)

and Lea’s race discrimination claim under Title VII, 42 U.S.C. § 2000e-2. After

United States Court of Appeals

Fifth Circuit

F I L E D

February 7, 2008

Charles R. Fulbruge III

Clerk
No. 06-31272

2

considering Plaintiffs’ prima facie evidence, proffered evidence to show that

Defendants’ given reasons for their hiring decisions were false, and other

relevant evidence on the motivation for Defendants’ decisions, Reeves v.

Anderson Plumbing Prods., 530 U.S. 133, 141 (2000); Crawford v. Formosa

Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000), Plaintiffs fail to create a

genuine issue of material factthat any protected characteristic was a motivating

factor in Defendants’ hiring decisions. See Rachid v. Jack in the Box, Inc., 376

F.3d 305, 312 (5th Cir. 2004). Also, Lea waived his Title VII claim on appeal for

lack of adequate briefing. See Adams v. Unione Mediterranea Di Sicurta, 364

F.3d 646, 653 (5th Cir. 2004). Consequently, we AFFIRM.

Plaintiffs are former employees of Cajun Electric Power Cooperative, Inc.

(“Cajun”) who were not offered the jobs they desired when NRG purchased

Cajun’s assets for LaGen, an NRG subsidiary, in a bankruptcy sale and downsized the company. Department managers were instructed to fill the positions

in their departments with the goal of ensuring the success of the company. 

The maintenance department where Austin and Didier were supervisors

was down-sizing from five employees to three. The manager was specifically

seeking the best team players to fillthe available positions and testified that the

ability to communicate effectively was a key component of being a team player.

He stated that Didier was not offered a position because his communication

skills were deficient as compared to those who were hired. Didier offered no

summary judgment evidence in his prima facie case or in his attempt to raise a

fact question on pretext to rebut the assertion that his communication skills

were lacking. Thus, even viewing the evidence in the light most favorable to his

claims, Didier failed to raise a fact issue that Defendants’ hiring decisions were

actually motivated in whole or in part by age discrimination, Crawford, 234 F.3d

at 902; Rachid, 376 F.3d at 312, and summary judgment of his claim was proper.
No. 06-31272

3

With respect to Austin, the maintenance manager testified that before he

recommended any employees for the available spots at LaGen, Austin made it

known that he, Austin, was less than interested in continuing to work for the

company once it became LaGen, admitting that he inquired whether he could

leave Cajun before the transition date of March 31, 2000, and retain his Cajun

severance package. While Austin attempted to create a fact question in a

subsequent declaration by stating the he never expressly told anyone to

eliminate his name from consideration, and that he asked as a back-up plan in

case he was not hired by LaGen,these assertions, even if accepted as true, do not

discreditthe manager’s testimony that he was under the impression that Austin

did not want to work for LaGen based on Austin’s prior inquiry. Thus, no

reasonable jury could infer that discrimination actually motivated the manager’s

decision, Crawford, 234 F.3d at 902, and summary judgment was proper. 

The operations department where Plauche formerly worked as a shift

supervisor was decreasing in size from fourteen supervisors to ten once LaGen

took over. When Plauche was terminated from Cajun, he received a severance

package of one year’s salary—approximately $55,000—which he accepted. While

Plauche was not extended a shift supervisor offer, in March 2000, he was offered

a job as a dispatcher, which he initially accepted, but which was withdrawn by

LaGen when Plauche refused to return his severance pay as all others in his

position were required to do. The managers testified that shift supervisor offers

were extended based on an employee’s capability and flexibility in training at

different plant facilities. Under oath, the managers stated that they both

understood that Plauche was unable to work at a different plant because he had

been unwilling to train there. Plauche contends that he was willing to train at

the other facility, but he offers no evidence in his prima facie case or in rebuttal

to contradict the managers’ sworn testimony that they did not offer him a shift

supervisor position because they believed, based on conversations with his
No. 06-31272

4

former supervisor, that he could not work at the other plant, as he had been

unwilling to train there. Plauche’s contentions, at best, “create[ ] only a weak

issue of fact as to whether the employer’s reason is untrue,” which is insufficient

to raise a fact question that unlawful discrimination was a factor in an

employment decision when, as here, “there is ‘abundant and uncontroverted

independent evidence that no discrimination [ ] occurred.’” Raggs v. Mississippi

Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)). Thus, summary

judgment was proper on Plauche’s claim.

The communications department at LaGen was being reduced by fifty

percent—from fourteen employees to seven. Lea, a former Cajun field

technician, was not made an offer to work withLaGen. Defendants testified that

those actually hired possessed technical skills that Lea did not. To show that

Lea was “clearly better qualified” than those chosen and raise a fact question as

to whether discrimination was a factor in Defendants’ hiring decisions,Lea must

present some evidence, in his prima facie case or on rebuttal, from which a jury

could reasonably infer that “no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate[s] selected over the plaintiff for the

job in question.” Deines v. Texas Dep’t of Protective & Regulatory Servs., 164

F.3d 277, 280-81 (5th Cir. 1999). Lea falls far short of this standard. Thus, the

district court properly granted summary judgment on his ADEA claim.

Further, we conclude that Lea waived his Title VII race discrimination

claim because, in Plaintiffs’ brief on appeal, the entire discussion of that claim

was relegated to a footnote on the last page of the brief. Since issues

“inadequately briefed on appeal are waived,” we decline to address this claim.

Adams, 364 F.3d at 653.

Accordingly, we AFFIRM the judgment of the district court.