1 Pursuant to 5 T H C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20956

Summary Calendar

M. YVONNE RICHARDS

Plaintiff-Appellant,

VERSUS

AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO.

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-111)

January 11, 1999

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: 1

Following termination from her employment by American General

Life and Accident Insurance Compan y (“American”), Appellant sued

alleging age and gender discrimination and retaliatory discharge.

The district court granted summary judgment for American. Richards

appeals. We affirm.

The controlling issue i s whether Appellant has created an

issue of material fact as to any or all of her claims. We review2

de novo, and a substantial conflict in evidence must exist to

create a jury question on the issue of discrimination. Rhodes v.

G uiberson Oil Tools , 75 F.3d 989, 993 (5 t h Cir. 1996) (en banc).

Thus, Appellant can defeat the motion only if the evidence, taken

as a whole: (1) creates a fact issue as to whether the employer’s

stated reason for the discharge was pretext; and (2) creates a

reasonable inference that [age, g ender or retaliation] was a

determinative factor in the employment decision. I d

. We view the

evidence in the light most favorable to Appellant.

Richards had been employed by American for thirty-two years.

At her termination, she was Assoc iate Director of the Sales/Mass

Marketing department. This department was combined with the Mass

Marketing Administration department and nine jobs were eliminated,

including Richards’. Thereafter, and as part of the restructuring,

two new positions entitled Senior Writing Consultants were created,

and McConville and Parker were employed in those jobs. Both were

under forty years of age. Also, American transferred the position

of underwriting mass marketing, from the underwriting department to

t he mass marketing group which was the department in wh ich

Appellant had formerly worked. Huff, who held the job in

underwriting, was transferred with it to mass marketing.

ANALYSIS

Because Appellant relies on the identical evidence to

establish her age and gender discrimination claims, and because the

same standard is applicable to each, we discuss them together.

Richards contends that the proffered nondiscriminatory reason3

ten dered for her termination, reduction in force, is pretextual

because she h ad the same or superior qualifications than the

younger persons hired and the male retained for under writing

positions after the reduction in force. In support, she offers her

deposition testimony (which she concedes is insufficient standing

alone) and the affidavits of Lacy and Gott. The district court

found that Lacy was not competent to determine whether Richards was

better qualified because Lacy had never reviewed Richard’s work or

the qualifications of those hired; and was not privy to American’s

objectives in the restructuring or the skills required to

accomplish that objective. Lacy’s affidavit was, therefore, not

proba tive of pretext. Our review of the record convinces us the

district court was correct.

Further, the distri ct court reasoned that Gott’s affidavit

merely showed that, at most, Appellant’s termination may have been

arbitrary or unjustif ied, but does not show that the termination

was unlawfully motivated. R hodes

, 75 F,3d at 994. Again we agree.

Finally, the district court determined that there was no

evidence that A ppellant’s age motivated American’s decision to

terminate her. Our review of the record shows this to be correct.

We turn now to Appellant’s retaliatory discharge claim. She

contends first that she participated in an earlier sexual

harassment investigation of American’s president, and Gott’s

affidavit states that, for that reason, the president wanted

Richards fired. This, she argues, creates a jury issue.

The district court correctly found that Gott’s affidavit does4

not indicate that Richards was terminated because of her

participation in the investigation of the president. The ultimate

i ssue in a retaliation case is “but for” causation. Long v.

Eastfield College

, 88 F.3d 300, 305 n .4 (5 t h Cir. 1996).

Examination of the evidence in the light most favorable to Richards

shows there is no substantial fact issue created that, but for her

participation in the investigation, she would not hav e been

terminated. She relies solely on Gott’s affidavit and points to no

substantial conflict in the evidence regarding the pr offered

explanation for her termination. Indeed, the record indicates the

president was unaware of Richards’ par ticipation in the

investigation. Therefore, under the R hodes rational, Appellant has

not produced sufficient evidence to create a jury question.

Additionally, the district court properly considered the lapse of

time (two years) between Appellant’s p articipation in the

investigation and her ter mination. S hirley v. Chrysler First,

Inc. , 970 F.2d 39, 44 (5 th Cir. 1992).

AFFIRMED.