### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 60467 Summary Calendar

STEVE G. RUTH,

Plaintiff

- Appellant

v. EKA CHEMICALS, INCORPORATED,

Defendant

- Appellee

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:13

- CV

- 165

Before REAVLEY, SMITH, and HAYNES, 1 Circuit Judges

. PER CURIAM: * Steve G. Ruth filed an age discrimination claim against Eka Chemicals. The district court granted the employer’s summary judgment motion and Ruth appeals. We affirm t he district court ’s judgment because Ruth failed to prove that age was the “but

- for” cause of his employment termination.

1 Judge Haynes concurs in the judgment only.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 8, 2015 Lyle W. Cayce Clerk Case: 15-60467 Document: 00513299489 Page: 1 Date Filed: 12/08/2015No. 15

- 60467

2 Ruth worked for Eka Chemi cals as a Chief Technician for seventeen

years , during which time he sustained a non

- work related ankle injury. The injury re quir ed several surgeries which resulted in Ruth being away from work
on short

- term disability. After a few months , Ruth’s physician r eleased him to return to work with considerable restrictions

– no climbing, b ending, stooping, squatting, pu s h ing, pulling or lifting over 20 pounds. Eka allowed Ruth to return to work in a limited capacity, but the restrictions prevented him f rom performing the essential duties of his job. Ruth was permitted to train someone for a c hief t echnician position , but d ue to the restrictions, was returned to short

- term disability status. He was subsequently terminated for violating the company’s dis ability policy when it was discovered that , while away from work , Ruth participat ed in activities such as golf, coaching softball and bending and lifting. Ruth contends that he was not prohibited from doing these activities as long as he was away from wor k and claimed that Eka terminated him because of his age in violation of the Age Discrimination in Employment Act (ADEA)

. T o prevail on an ADEA claim , “ [a] plaintiff must prove by a preponderance of the evidence (which may be direct or cir cumstantial), t hat age was the ‘ but

- for ’ cause of the challenged employer decision. ” Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 177

- 78, 129 S. Ct. 2343, 2351 (2009)

. The defendant has no burden of proof while plaintiff has this burden. Ruth w ould
have to show that his employment w as terminated only because of his age.
Ruth assert s that Eka’s proffered reasons for the termination were pretextual , that he was replaced with someone younger , and that Eka had a pattern of age discrimination. However, he does not prove that he was
dismissed only because of his age

. Moreover , the assertion that Eka had a pattern of age discrimination was unsupported and inconsistent with the Case: 15-60467 Document: 00513299489 Page: 2 Date Filed: 12/08/2015No. 15

- 60467

3 record which reflects th at a t the time of Ruth’s termination, seven of Eka’s 11

c hief t ech nicians were age 48 and over. AFFIRMED. Case: 15-60467 Document: 00513299489 Page: 3 Date Filed: 12/08/2015