*Pursuant to 5

TH 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.

 

1

 29 U.S.C. §§ 621-634.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60117

Summary Calendar

ROBERT P. JARRELL,

Plaintiff-Appellant,

versus

F-S PRESTRESS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

(2:97-CV-108-PG)

December 8, 1998

Before POLITZ, Chief Judge, WIENER and DENNIS, Circuit Judges.

POLITZ, Chief Judge:*

Robert P. Jarrell appeals an adverse summary judgment in his age

discrimination1claim against his former employer, F-S Prestress, Inc. For the

reasons assigned, we affirm.

BACKGROUND

Prior to his termination at age 53, Jarrell served as plant manager for the
2

Hattiesburg, MS branch of F-S Prestress. In 1993, after becoming the company’s

general manager, Mark Fairchild met with Jarrell and informed him of the

disappointing performance by the Hattiesburg branch and of the possibility of layoffs, or even sale or closure of the plant. In the fall of 1994, after no substantial

improvement in the operations’ profitability, F-S Prestress cut costs by reducing the

salaries of the three on-site managers, each of whom were above the age of 40. 

Over the next year, the operations did not improve to the satisfaction of F-S

Prestress management. Believing that the plant manager played a critical role in

the performance ofthe company, F-S Prestressterminated Jarrell in February 1996.

That same month, F-S Prestress retained Gary Johnson as its new plant manager.

Johnson, who is older than Jarrell, became responsible for all of the duties

previously shouldered by Jarrell. Because a week or two passed between the time

of Jarrell’s termination and Johnson’s retention, Fairchild and another manager,

both of whom were youngerthan Jarrell, temporarily assumed the duties previously

performed by Jarrell.

Jarrell sued F-S Prestress under both federal and state law, alleging that its

decision to fire him was based upon his age. Seeking to establish a discriminatory

motive, Jarrell described statements made by its employees, such as “We are not

doing it the old way anymore,” “We feelsorry for you older people,” and “You are

past your prime.” F-S Prestress moved for summary judgment. In considering

Jarrell’s ADEA claim, the district court determined that neither the stray remarks

nor the decrease in Jarrell’s salary constituted direct evidence of age
 

2 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993).

 

3 FED. R. CIV. P. 56(c).

 

4 Bodenheimer, 5 F.3d at 956.

 

5

Id.

 

6

 29 U.S.C. §§ 623, 626, 631.

 

7 Harrington v. Harris, 118 F.3d 359 (5th Cir.), cert. denied, 118 S. Ct. 603 (1997).

3

discrimination. The district court applied a modified McDonnell Douglas test to

determine whether Jarrell established a prima facie case of discrimination. The

district court found thatJarrell had not established the essential element that he was

replaced by one outside the protected class or by one substantially younger than

himself, and dismissed the ADEA claim. The state law claims were dismissed

without prejudice. Jarrell timely appealed.

ANALYSIS

In employment discrimination cases, we review summary judgments de novo,

applying the same standard as the district court.2 Federal rules provide for

summary judgment when there exists no genuine issue of material fact.3 A dispute

concerning a material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.4 In making this determination,

the court must draw all justifiable inferences in favor of the nonmoving party.5

The ADEA protects those at least 40 years of age from discharge because of

their age, and it provides them with a private cause of action.6 ADEA plaintiffs

may prove age discrimination by direct or circumstantial evidence.7 

Jarrell contends that the district court erred in granting summary judgment
 

8 Portis v. First Nat’l Bank of New Albany, MS, 34 F.3d 325 (5th Cir. 1994) (Title VII

context); Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858 (5th Cir. 1993) (same).

 

9 Armendariz v. PinkertonTobacco Co., 58 F.3d 144 (5th Cir. 1995) (finding too remote

and vague to evidence age discrimination against plaintiff comments that a younger coworker was “getting old” and “losing her memory”); Atkin v. Lincoln Property Co., 991

F.2d 268 (5th Cir. 1993) (finding too remote and vague to evidence age discrimination a

comment that plaintiff was “getting up there in years” when made one year prior to

termination).

4

because he maintainsthat he established discriminatory motive directly through the

aforementioned statements and through the reduction in salaries of Jarrell and two

other managers who were over 40 years of age. We first consider the above-quoted

statements. Direct evidence is any statement revealing a discriminatory motive on

its face without resort to inference.8 In the alleged comment “not doing it the old

way,” the term “old” modifies “way.” Any link to Jarrell’s age would have to be

inferred, but direct evidence must reveal discriminatory motive on its face, not by

inference.

Nor do the other alleged statements constitute direct evidence of

discriminatory motive; they are more accurately described as stray remarks. The

statement about “feel[ing] sorry for you older people” merely reflects recognition

of one’s age, not discriminatory motive. Additionally this statement, like the

statement about “[being] past your prime,” was made in 1993 or 1994, which istoo

remote in time – and too vague in substance – to be probative of the alleged age

discrimination in 1996.9 In sum, we conclude that the comments cited by Jarrell

do not constitute direct evidence of age discrimination.

Nor may the reduction in salary of the three managers in the Hattiesburg
5

plant when plant operations did not meet the demands of higher management be

deemed dispositive proof of discriminatory motive based on age. The summary

judgment record reflectsthat non-management employees over 40 years of age did

not have their pay reduced. We are not persuaded that the reductions in salary

evidence an age-discrimination motive by F-S Prestress.

The summary judgment record does not support the essential finding that

Jarrell was replaced by someone substantially younger than himself. This failure

eviscerates the prima facie case of discrimination and requires dismissal of the

ADEA claim.

The judgment appealed is AFFIRMED.