IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40454

Summary Calendar

JUDY N. PREE,

Plaintiff - Appellant

v.

FARMERS INSURANCE EXCHANGE

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:10-CV-723

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Judy Pree appeals the district court’s judgment granting Farmers 

Insurance Exchange’s (“Farmers’s”) motion for summary judgment. Pree 

brought claims of age discrimination, retaliation, and hostile work 

environment, all under the Age Discrimination in Employment Act of 1967 

(“ADEA”). Pree also brought a claim for intentional infliction of emotion 

distress under Texas law. On appeal, Pree challenges the dismissal of her 

disparate treatment and retaliation claims. She also argues that the district 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2014

Lyle W. Cayce

Clerk

 

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court abused its discretion by ruling on Farmers’s summary judgment motion 

during the pendency of Pree’s motion to compel. We have considered each of 

Pree’s arguments and AFFIRM the district court’s judgment granting

Farmers’s motion for summary judgment.

I.

Pree, who was born in 1954, began her career at Farmers in 1993 as a 

mail clerk. In 2002, she started working in the Beaumont, Texas, field claims 

department. By 2008, she was promoted to Special Field Claims 

Representative in that office by Rick Dearing, her supervisor. She was fiftyfour years old at the time of this promotion. 

Beginning in 2009, Pree began to receive poor marks for her work in that 

position. Farmers evaluated its claims representatives in six areas and graded 

each representative on a scale of one to five, with one evidencing that the 

employee was far below company expectations and a five evidencing that the 

employee far exceeded expectations. In 2009, Pree’s year-end review noted 

that she was underperforming in two of the six review areas. She scored a one 

(below expectations) in “Customer Experience” and a two (partially meets 

expectations) in “Level of Support.” This year-end review was administered by 

Dearing and included specific commentary from him on each graded area. 

Pree’s 2009 failure to meet company expectations in the area of customer 

service was the second time she had failed in this area in recent years. 

Furthermore, her overall job performance rating for 2009 was a two, meaning 

that she only partially met the company’s expectations. Pree complained to 

Ronnie Waller, the Auto Physical Damage department manager in the 

Beaumont office, that Dearing was treating her unfairly. As a result, Waller

transferred her to the supervision of another superior, Cary Scott Robertson,

in March 2010. On April 2, 2010, Pree, now fifty-five years old, filed a charge 

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of age discrimination with the EEOC, alleging disparate treatment by Dearing. 

Her interactions with Dearing are the basis of her disparate treatment claim 

before us.

After the filing of the charge with the EEOC, Pree alleges that Robertson 

began to mistreat or “nitpick” her. In June 2010, Pree received a Formal 

Warning based on her poor job performance; this warning was written by 

Robertson. The Warning noted that in 2009 Pree had failed to meet company 

expectations in the areas of customer service and level of support. It also stated 

that Pree was not meeting expectations in estimate accuracy, total loss 

accuracy, efficiency/time management, behavior, and level of support. The 

memo relayed how Robertson had been providing daily support to Pree and 

cautioned Pree that she “must stabilize and improve her performance” or be 

subject to further disciplinary action “up to and including termination of [her] 

employment.” 

By the time of Pree’s 2010 mid-year performance review, she was not 

meeting expectations in four of the six objectives, and Pree was placed on sixtyday probation because of these performance failures. Shortly thereafter,

Robertson made the decision to fire Pree. These events, including termination, 

constitute the substance of Pree’s retaliation claim.

II.

Pree first filed suit in November 2010. In July 2011 Pree presented her 

first requests for production and interrogatories. On July 22, Farmers moved 

for summary judgment on all of Pree’s claims while Pree moved for a 

continuance, which the district court granted, extending Pree’s deadline to 

respond to the motion until September 12. During this time Pree conducted 

additional discovery and filed her response. On February 13, 2012, the 

discovery deadline passed and Pree had not yet received what she believed to 

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be an adequate response to a second set of interrogatories and requests for 

production. Twelve days later she filed a motion to compel Farmers to 

adequately respond and produce those documents. On March 30, 2012, the 

district court granted Farmers’s motion for summary judgment while Pree’s 

motion to compel was pending. This motion to compel was later denied as 

moot. The district court later issued a memorandum opinion and entered a 

final judgment. Pree timely appealed. 

III.

We review a district court’s granting of summary judgment de novo, 

“employing the same standards as did the district court.” Meditrust Fin. Servs. 

Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999). Summary 

judgment is proper where a “movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a). 

First, Pree appeals the dismissal of her ADEA disparate treatment claim 

against Farmers. A plaintiff may prove age discrimination “either through: 

direct evidence or by an indirect or inferential method of proof.” Rachid v. Jack 

in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). If relying on the inferential 

method, as Pree does here, she must put forth a prima facie case, “at which 

point the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision.” Berquist v. Washington 

Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). A prima facie case requires that 

the plaintiff show “(1) he was discharged; (2) he was qualified for the position; 

(3) he was within the protected class at the time of discharge; and (4) he was 

either i) replaced by someone outside the protected class, ii) replaced by 

someone younger, or iii) otherwise discharged because of his age.” Rachid, 376 

F.3d at 309.

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Pree fails to challenge the district court’s finding that she had not 

established a prima facie case of discrimination and instead attacks Farmers’s 

legitimate, non-discriminatory reasons for its conduct as pretextual in nature. 

We will not assume that Pree established a prima facie case of discrimination 

when there is no reliable evidence that she was either replaced by a younger 

worker or otherwise discharged because of her age. Rachid, 376 F.3d at 309. 

The district court did not err in granting summary judgment for Farmers on 

Pree’s disparate treatment claim. 

Pree next alleges that Farmers retaliated against her because she filed 

a charge of age discrimination with the EEOC. This alleged retaliation took 

place while she was under the supervision of Robertson following her 

reassignment in March 2010. “To establish a prima facie retaliation claim 

under the ADEA, [a plaintiff] must show (1) that he is engaged in a protected 

activity, (2) that there was an adverse employment action, and (3) that a causal 

link existed between the protected activity and the adverse employment 

action.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 260 (5th Cir. 2001). 

The district court addressed the claim under the assumption that Pree 

established a prima facie claim of retaliation although there is no reliable 

evidence that there was a causal link between Pree’s EEOC filing and her 

subsequent firing. We have detailed Pree’s poor job performance and note that 

an extensive amount of the documented negative performance, which served 

as the basis for her discharge, took place before she ever filed the April 2, 2010 

charge with the EEOC. There is no evidence to establish any link between 

Pree’s filing and her dismissal; instead, the record only supports a record of 

more of the same poor job performance in 2010. We hold that Pree failed to 

establish a prima facie case of retaliation and affirm the district court’s holding

with respect to Pree’s retaliation claim.

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IV.

On her final issue on appeal, Pree argues that the district court abused 

its discretion when it granted Farmers’s motion for summary judgment 

because she had a pending motion to compel discovery. “We review the district 

court’s decision to preclude further discovery prior to granting summary 

judgment for abuse of discretion.” Krim v. BancTexas Group, Inc., 989 F.2d 

1435, 1441 (5th Cir. 1993). 

Pree acknowledges that she failed to seek relief under Rule 56(d) by filing 

a motion for continuance of the court’s ruling on Farmers’s motion and that a 

party “waives the issue of inadequate discovery” when it fails to seek relief 

under Rule 56(d). Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 

719 (5th Cir. 1999). Pree argues, however, that a party need only indicate to 

the court by “some equivalent statement, preferably in writing” its need for 

additional discovery to invoke the rule. Int’l Shortstop, Inc. v. Rally, Inc., 939 

F.2d 1257, 1266-67 (5th Cir. 1991). Neither Pree’s supplemental response, nor 

her sur-reply, indicates that she lacked sufficient discovery to adequately

respond to Farmers’s motion for summary judgment. We hold that the district 

court did not abuse its discretion in ruling on Farmers’s motion for summary 

judgment in spite of Pree’s pending motion to compel.

V.

In sum, we conclude that the district court did not err in granting 

Farmers’s motion for summary judgment on Pree’s disparate treatment and 

retaliation claims under the ADEA and that it did not abuse its discretion in 

ruling during the pendency of Pree’s motion to compel. Accordingly, the 

judgment of the district court is

 AFFIRMED.

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