* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens

on the legal profession." Pursuant to that rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 94-20868

Summary Calendar

_______________

WOODY F. DUNCAN,

Plaintiff-Appellant,

VERSUS

EXXON CORPORATION,

d/b/a Exxon Chemical, U.S.A.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA H 93 1888)

_________________________

July 31, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Woody Duncan appeals the denial of his post-judgment motion

challenging the summary judgment entered in this action charging

his former employer, Exxon Corporation ("Exxon"), with violations

of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

§ 621 et seq., and the Texas Commission on Human Rights Act
2

("TCHRA"), TEX. REV. CIV. STAT. ANN. art. 5221k. Finding no error, we

affirm.

I.

Duncan alleged that he was forced to resign because of his age

and disability. Exxon filed a motion for summary judgment

asserting that Duncan was terminated because he had failed to

comply with Exxon's policy on alcohol and drug use. Following a

hearing, the district court granted Exxon's motion and entered

final judgment.

II.

Summary judgment is appropriate if, "viewing all of the

elements in the light most favorable to the non-movant, there is no

genuine issue to any material fact and . . . the moving party is

entitled to judgment as a matter of law." Amburgey v. Corhart

Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991) (internal

quotations, citation, and footnote omitted). If a movant carries

his burden, the non-movant must set forth specific facts showing

that there is a genuine issue for trial. Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Summary

judgment must be entered against the party who fails to establish

elements essential to his case as to which he will bear the burden

of proof at trial. Id.
3

III.

Duncan contends that the district court erred in concluding

that he had not presented a prima facie case of age discrimination

under the ADEA. To establish a prima facie case, Duncan must have

shown that he "(1) was discharged; (2) was qualified for the

position; (3) was within the protected class at the time of the

discharge; (4) was replaced by someone outside the protected class

or (5) by someone younger, or (6) show otherwise that his discharge

was because of age." Crum v. American Airlines, 946 F.2d 423, 428

(5th Cir. 1991) (quotation and citation omitted).

If Duncan had established a prima facie case, the burden would

shift to Exxon to show a legitimate, non-discriminatory basis for

the termination. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253-54 (1981). If Exxon made that showing, the

burden would shift to Duncan to show that the reason was merely a

pretext for a discriminatory termination. See McDaniel v. Temple

Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985).

The district court found that Duncan did not create a question

of fact with respect to whether the reasons given for his discharge

were a mere pretext for age discrimination. It is undisputed that

Exxon discharged Duncan for failure to comply with its policy on

alcohol and drug use. The evidence Duncan presented to show

pretext included an internal memorandum and his affidavit of

statements made by his supervisors.

With respect to the memorandum, it was a list of "thoughts and

questions" related to possible disciplinary action against Duncan.
4

One of the questions asked was whether Duncan was over forty years

old. Taken in the context of the entire memo, this does not show

that Duncan was being considered for disciplinary action based upon

his age, but rather it was simply to determine whether Duncan was

in a protected class. Duncan also asserts that this memo shows

that other cases of his alleged misconduct did not result in

termination. Duncan, however, has not shown that he was given

harsher treatment because of his age. "Whatever the employer's

decisionmaking process, a disparate treatment claim cannot succeed

unless the employee's [age] actually played a role in that process

and had a determinative influence on the outcome." Hazen Paper Co.

v. Biggins, 113 S. Ct. 1701, 1706 (1993); see also Purcell v.

Seguin State Bank & Trust Co., 999 F.2d 950, 955-58 (5th Cir.

1993).

In Hazen, the Court concluded that firing an employee because

his pension was about to vest was not, in and of itself, enough to

show a violation of the ADEA, because that decision was based upon

years of service, not age. Id. at 1706-08. The Court noted that

such behavior may not be lawful, but it was not a violation of the

ADEA. Id. at 1707. The Court gave the following example: "It

cannot be true that an employer who fires an older black worker

because the worker is black thereby violates the ADEA. The

employee's race is an improper reason, but it is improper under

Title VII, not the ADEA." Id.

The statements made by Duncan's supervisors do not suggest

that Duncan's age was a determining factor in his termination. The
5

supervisors noted that Duncan had worked for Exxon for over twenty

years and that he would be eligible for retirement in a few years.

One of the supervisors commented that it was not worth paying

Duncan $55,000 a year for the six years it would take him to reach

early retirement age. None of these statements shows that Duncan

was discharged because Exxon believed his productivity had fallen

because of his age. See Hazen, id. at 1706. Although Duncan's

evidence may raise a question as to whether he was unjustly

discharged, it does not create a genuine issue of material fact

that he was unjustly discharged because of his age. Accordingly,

the district court did not err in granting summary judgment under

the ADEA.

IV.

Duncan also asserts that the district court erred in finding

that there was no genuine issue of material fact that he had been

dismissed as a result of the disability in violation of the TCHRA.

Under the TCHRA, a complainant must show that he was disabled and

that he was terminated solely because of the disability. See

McIntyre v. Kroger Co., 863 F. Supp. 355, 357-58 (N.D. Tex. 1994).

The court granted summary judgment because it found that Duncan had

not shown any relationship between his termination and his medical

problem (an inner ear disorder).

Duncan presented his own affidavit of statements made by his

supervisors that they were aware of his health problems. Although

these statements confirm that Exxon knew of his inner ear problems
6

and earlier back condition, they do not show that these problems

motivated his discharge. To the contrary, the comments are

directed to whether it would be prudent to discharge Duncan because

of his medical problems. The evidence suggests that Exxon may have

considered not terminating Duncan because of potential problems

resulting from his medical condition, not that he was being

discharged because of his medical condition. The district court

did not err in granting summary judgment on this claim and did not

abuse its discretion in denying Duncan's post-judgment motion.

AFFIRMED.