1

As part of its reply, Colonial has objected to some of Nelson’s

summary-judgment evidence. The court has taken these objections into account

in deciding what weight to give the complained of evidence.

2

Colonial had understood Nelson also to assert a claim for failure to

accommodate his purported disability. Because Nelson has clarified that he is

not asserting this claim, the court does not address it. See Pl.’s Resp. to

Def.’s Mot. for Summ. J. at 25, § D.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT NELSON, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-551-A

§

COLONIAL SAVINGS, F.A., §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

On October 5, 2006, defendant, Colonial Savings, F.A.

(“Colonial”), moved for summary judgment on all claims asserted

by plaintiff, Robert Nelson ("Nelson"), in this suit. Having

considered the motion, the response, the reply,1 the summaryjudgment evidence, and the applicable legal authorities, the

court concludes that the motion should be granted as stated

below. 

I.

Plaintiff's Claims

In this lawsuit, Nelson contends that Colonial terminated

his employment in violation of (1) the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-213; (2) the Family

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654; and (3) the

Age Discrimination in Employment Act (“ADEA”).2

 

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2

II.

The Motion for Summary Judgment

Colonial maintains that Nelson cannot establish a primafacie case of any of his claims. Even if there were evidence

establishing a prima-facie case on his claims, Colonial contends

that it had a legitimate, non-discriminatory and non-retaliatory

reason for terminating Nelson’s employment. 

III.

Facts

A. Relevant Undisputed Facts

Colonial, a financial services and lending institution,

hired Nelson in February of 1998 to work in the Home Loan Center

(“HLC”) as a loan officer. In that position, Nelson was

responsible for mortgage retention, which involves attempting to

convince current Colonial customers to refinance their mortgages

with Colonial and not a competitor. 

At the time of his hire, Nelson was 65 years old and used at

least one cane to walk. In 2000, Nelson was diagnosed with

Myasthenia Gravis, a neuromuscular disease that caused weakness

in his legs. During his employment with Colonial, Nelson

eventually needed two canes to walk, but, with them, he could

walk at almost a regular pace. Due, however, to complications

from the disease in 2003, Nelson needed two days off every six

weeks for treatment, as well as a later start time each day due

to the side-effects of his medications. Colonial granted each of

 

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3

these accommodations. In approximately the spring of 2004,

Nelson asked someone in Colonial’s Human Resources for the forms

to request leave under FLMA for the days on which he received

treatments so that he would no longer have to use sick and

vacation days for that time off. In June of 2004, he submitted

his medical certification to Colonial to qualify for and in

preparation for FMLA leave. 

In early 2003, six to seven of the HLC loan officers were

transferred to retail loan officer positions where they were

required to generate new loans and make in-person visits with

potential customers. The other six to seven HLC loan officers,

including Nelson, continued to perform as they had before but

under the new title “retention loan officer.” 

Also in 2003, due to slowing business, Colonial was forced

to lay off 49 employees, including one of the HLC retention loan

officers. Some of these employees were younger than Nelson. 

When Colonial’s business continued downward into 2004, and in an

attempt to save expenses without having to lay off additional

employees, Colonial changed the retention loan officers’ hours

from a full time, 40-hour-work week to a 30-hour-work week. 

Apparently this cost-cutting measure proved ineffective as,

between January 1, 2004, and August 1, 2004, Colonial laid off

another 35 employees, all of whom were younger than 40, and not,

to Colonial’s knowledge, disabled. Also, of those 35 employees,

33 had not requested leave under FMLA.

 

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4

Business conditions required Colonial to lay off even more

employees in August of 2004. As part of this round of lay offs,

Colonial’s Vice-President of Production, Mark Dennis, directed

Nelson’s supervisor to reduce the number of employees at the HLC. 

On July 28, 2004, Nelson was handed a letter stating that, due to

a reduction in force, he was being terminated effective August

31, 2004.

B. Relevant Disputed Facts

According to Colonial, Nelson was fired, because, among the

retention loan officers, he had the lowest amount of loans closed

per hours worked. Nelson alleges that, upon being informed of

his termination, he asked Berry Roberson (“Roberson”), the

manager of HLC, if he could transfer to a retail loan officer

position. In response, Roberson purportedly told him: “You

wouldn’t be comfortable going outside.” Roberson denies ever

making such a statement. 

IV.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

 

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5

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

V.

Analysis

To establish a prima-facie case of retaliation under FMLA as

alleged by Nelson here, see Pl.’s Resp. to Def.’s Mot. for Summ.

J. at 11-12, Nelson must show that: (1) he is protected under

FMLA; (2) he suffered an adverse employment decision; and (3) the

 

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3

A plaintiff may also meet the third element of a prima-facie case by

showing that he was treated less favorably than an employee who had not

requested leave under FMLA. Bocalbos, 162 F.3d at 383. Nelson does not

appear to make this assertion and, at any rate, there is no evidence to

support it even if he had.

6

adverse decision was made because of his request for leave under

FMLA. See Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383

(5th Cir. 1998).3 For a prima-facie case under the ADEA, he must

show that: (1) he was fired or demoted; (2) he was qualified for

the position in question; (3) he is a member a protected class

(i.e. over the age of forty); and (4) he was replaced by someone

outside the protected class or younger. See, e.g., Evans v. City

of Houston, 246 F.3d 344, 350 (5th Cir. 2001); Bennett v. Total

Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998). Finally, a

prima-facie case under the ADA requires Nelson to show that: (1)

he has a disability; (2) he is a qualified individual for the job

in question; and (3) an adverse employment decision was made

because of her disability. See Talk v. Delta Airlines, Inc., 165

F.3d 1021, 1024 (5th Cir. 1999). Even if Nelson makes out

prima-facie cases on all his claims, summary judgment for

Colonial may nonetheless still be proper under the evidentiary

burden-shifting framework of McDonnell Douglas Corp. v. Greene,

411 U.S. 792 (1973), as modified by Desert Palace, Inc. v. Costa,

530 U.S. 90 (2003). See Rachid v. Jack in the Box, Inc., 376

F.3d 305, 312 (5th Cir. 2004). Under this framework, after the

plaintiff establishes a prima-facie case, the burden shifts to

the defendant to articulate a legitimate, non-retaliatory reason

for its actions. Id. If the defendant meets this burden, then

 

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4

The modified burden-shifting framework of McDonnell-Douglas applies to

all of Nelson’s claims. See, e.g., Rachid, 376 F.3d at 312 (applying it to

ADEA claim); Bocalbos, 162 F.3d at 383 (applying it to FMLA claim); Raytheon

Co. v. Hernandez, 540 U.S. 44, 50-52 (2003) (applying it to ADA claim).

7

plaintiff must offer evidence sufficient to create an issue of

material fact "'either (1) that the defendant's reason is not

true, but is instead a pretext for discrimination (pretext

alternative); or (2) that the defendant's reason, while true, is

only one of the reasons for its conduct, and another motivating

factor is the plaintiff's protected characteristic (mixedmotive[s] alternative).'" Id. (quoting Rishel v. Nationwide Mut.

Ins. Co., 297 F. Supp.2d 854, 865 (N.D.N.C. 2003).4 

The court has serious doubts as to whether Nelson has shown

a prima-facie case as to any of his claims. Even assuming,

however, that he has, the court is amply satisfied that Colonial

is entitled to judgment as a matter of law, because it has

adduced evidence of a legitimate non-discriminatory reason for

terminating Nelson’s employment. Rachid, 376 F.3d at 312. 

Simply put, the summary-judgment record reflects that Nelson was

merely one of many employees laid off due to a downturn in

Colonial’s business. Indeed, Nelson readily concedes this:

Colonial claims that Nelson’s termination was due to

the fact that Colonial’s mortgage loan business had

declined to the point where a loan officer needed to be

laid off, and that Nelson was the lowest-producing loan

officer . . . Colonial has articulated a legitimate,

non-discriminatory reason for Nelson’s termination. 

Thus, Nelson must now raise a genuine issue of material

fact regarding the falsity of Colonial’s proffered

reason, or show that even if true, the proffered is but

one reason, the other being discriminatory animus.

 

See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 17. 

 

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8

Having correctly articulated his burden of proof at this

juncture, Nelson fails to carry it. Rather, he merely urges that

Colonial should have used different business factors than the one

used, i.e. loans closed per hours worked, in choosing which

employee to fire. This assertion is insufficient to defeat

Colonial’s motion for summary judgment. As the Fifth Circuit has

repeatedly held, “anti-discrimination laws ‘are not vehicles for

judicial second-guessing of business decisions.’” See, e.g., 

Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001) (quoting

Deines v. Texas Dep’t of Protective & Regulatory Serv., 164 F.3d

277, 281 (5th Cir. 1999)).

Aside from nitpicking at the business reason why he was

fired, the only other purported evidence possibly relied on by

Nelson to show discriminatory intent on Colonial’s part is the

alleged remark made by Roberson that Nelson “wouldn’t be

comfortable going outside.” Even if Roberson made this remark,

he said it after Nelson was fired and in response to Nelson’s

informal request for an entirely different job as a retail loan

officer at Colonial. For a remark to be probative of

discrimination, “it must be direct and unambiguous, allowing a

reasonable jury to conclude without any inferences or

presumptions that [the protected characteristic] was an

impermissible factor in the decision to terminate the employee.” 

E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173, 1181 (5th Cir.

1996). Neither stray nor vague remarks are sufficient. Id.;

Guthrie v. Tifco Industries, 941 F.2d 374, 378-79 (5th Cir.

 

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9

1991). Again assuming it was even said, the complained-about

remark has no obvious connection to Nelson’s age, alleged

disability, unfulfilled intent to request leave under FMLA, or

Colonial’s decision to lay him off. Among a myriad of

possibilities, it could very well reflect Roberson’s belief that

Nelson’s personality is not well suited for a job requiring such

direct and in-person interaction with people. In short, this

stray remark is much too vague to constitute competent summaryjudgment evidence of discriminatory intent. Summary judgment for

Colonial is proper. 

VI.

Order

For the reasons discussed above, the court concludes that

Colonial’s motion for summary judgment should be granted. 

Therefore,

The court ORDERS that all of Nelson’s claims and causes of

action against Colonial in the above-captioned action be, and are

hereby, dismissed with prejudice. 

SIGNED November 29, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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